16-006531N Radiah Nixon, Individually And As Parent Of Calise L. Muniz, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 14, 2017.

Summary: Child did not sustain an injury to the brain or spinal cord. Child does not have a substantial physical or mental impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RADIAH NIXON, individually and

as parent of CALISE L. MUNIZ, a

minor,

Petitioner,

vs. Case No. 16 - 6531N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

____________________ ___________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the partiesÓ Joint

Stipulation of Non - compensability and request for an entry of a

summary final order of non - compensability filed on March 2, 2017.

STATEMENT OF THE CASE

On November 3, 2016, Petitioner, Radiah Nixon, individually

and as parent of Calise L. Muniz (Calise), a minor, filed a

Petition for Determination of Compensability Pursuant to Florida

Statute Section 766.301 et seq. with th e Division of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan).

The Petition named Matthew H. Conrad, M.D., as the physician

who provided obstetric services at the birth of Calise on May 2,

2015, at Holmes Regional Medical Center located in Melbourne,

Florida.

DOAH served NICA with a copy of the Petition on November 14,

2016. DOAH served Matthew H. Conrad, M.D., and Holmes Regional

Medical Center with a copy of the Petition on November 16, 2016.

As of the date of this Summary Final Order of Dismissal,

neither Matthew H. Conrad, M.D., nor Holmes Regional Medical

Center, has petitioned to intervene into this proceeding.

On February 20, 2017, NICA filed a Respo nse to Petition for

Benefits, asserting that Calise did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes, and requested that a hearing be

scheduled to determine compensability.

On March 2 , 2017, the parties filed a Joint Stipulation of

Non - compensability. The parties stipulated that Calise does not

meet the statutory requirements for compensability and requested

in the Joint Stipulation that a final summary order of non -

compensability be entered.

FINDINGS OF FACT

1. Calise L. Muniz was born on May 2, 2015, at Holmes

Regional Medical Center, located in Melbourne, Florida. Calise

weighed in excess of 2,500 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA

to rev iew the medical records for Calise. In a medical report

dated January 24, 2017, Dr. Willis opined in pertinent part as

follows:

In summary, the mother apparently became

hypotensive after placement of epidural

anesthesia with resulting fetal distress.

The baby was depressed at birth. The initial

ABG was consistent with metabolic acidosis.

Cooling protocol was initiated for HIE. EEG

was normal for age. No MRI or CT scan was

done during the newborn hospital course.

There was an apparent obstetrical eve nt that

resulted in loss of oxygen during labor and

delivery. However, there was no

documentation of actual brain injury.

3. NICA retained Laufey Y. Sigurdardottir, M.D.

(Dr. Sigurdardottir), a pediatric neurologist, to examine Calise

and to review her medical records. Dr. Sigurdardottir examined

Calise on February 1, 2017. In a medical report dated

February 1, 2017, Dr. Sigurdardottir summarized her examination

of Calise and opined in pertinent part as follows:

Summary: Calise is a 21 - month - old fema le who

was born via emergency cesarean section after

nonreassuring fetal heart rate tracings were

noted after a high spinal anesthesia. She

had poor Apgars of 2, 4 and 5 after 1, 5 and

10 minutes, and was treated with cooling

protocol. She did not have a ny neonatal

seizures and the only neuroimaging available

is a head ultrasound on day of life 1 that

was normal. On neurologic exam today she is

normal, both with her motor skills and

cognition and language development. There

are no signs of autistic feat ures.

Results as to question 1: Calise is not

found to have substantial physical or mental

impairment at this time.

Results as to question 2: In review of

available documents, she does have the

clinical picture of an acute birth - related

hypoxic injury.

Results as to question 3: The prognosis for

full motor and mental recovery is excellent

and her life expectancy is full.

In light of the normal cognitive abilities

and normal neurologic exam, I do not feel

that Calise should be included in the NICA

p rogram. If needed, I will be happy to

answer additional questions.

4. A review of the file in this case reveals that there

have been no expert opinions filed that are contrary to the

opinion of Dr. Willis that while there was an apparent

obstetrical eve nt that resulted in loss of oxygen to the baby's

brain during labor and delivery, there was no documentation of

actual brain injury. Dr. WillisÓ opinion is credited. There are

no expert opinions filed that are contrary to

Dr. SigurdardottirÓs opinion tha t Calise does not have a

substantial physical or mental impairment. Dr. SigurdardottirÓs

opinion is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

6. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

7. The injured infant, her or his personal representative,

parents, dependents, and next of kin may seek compensation under

the Plan by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fl a. Stat. NICA,

which administers the Plan, has "45 days from the date of service

of a complete claim . . . in which to file a response to the

petition and to submit relevant written information relating to

the issue of whether the injury is a birth - relate d neurological

injury." § 766.305(4), Fla. Stat.

8. If NICA determines that the injury alleged in a claim is

a compensable birth - related neurological injury, it may award

compensation to the claimant, provided that the award is approved

by the administr ative law judge to whom the claim has been

assigned. § 766.305(7), Fla. Stat. If, on the other hand, NICA

disputes the claim, as it has in the instant case, the dispute

must be resolved by the assigned administrative law judge in

accordance with the prov isions of chapter 120, Florida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

9. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury cla imed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

de livered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate postdelivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labo r, delivery, or resuscitation in the

immediate postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has sustained

a birth - related neurological injury and th at obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

10. The term "birth - related neurological injury" is defined

in section 766.302(2) as follows:

"Birth - related neurological injury" means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing at

least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in

the cou rse of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

11. The evidence, which is not refuted, established that

Calise did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury in the course

of labor, delivery, or resuscitation in the immediate post -

delivery period in a hospital which rendered her permanently and

substantially mentall y and physically impaired. Therefore,

Calise is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Radiah Nixon,

individually and as parent of Ca lise L. Muniz, is dismissed with

prejudice.

DONE AND ORDERED this 14th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of March , 2017 .

COPIES FURNISHED:

(via certified m ail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2450)

Ronald S. Gilbert, Esquire

Co lling Gilbert Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2467)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 2474)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2481)

Holmes Regional Medical Center

Attention: Risk Management

1350 South Hickory Street

Melbourne, Florida 32901

(Certified Mail No. 7014 2120 0003 1053 2498)

Matthew H. Conrad, M.D.

Holmes Regional Medical Center

1350 South H ickory Street

Melbourne, Florida 32901

(Certified Mail No. 7014 2120 0003 1053 2504)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.3 11(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original n otice of a dministrative a ppeal

with the a gency c lerk of the Division of Administrative Hearings

w ithin 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. As s'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).