16-006532N Heather James And Brian Cooper, On Behalf Of And As Parents And Natural Guardians Of Wyatt Cooper, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 20, 2017.

Summary: Child does not have a permanent and substantial physical impairment. Therefore, he is not eligible for NICA benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HEATHER JAMES AND BRIAN COOPER,

on behalf of and as parents and

natural guardians of WYATT

COOPER, a minor,

Petitioners,

vs. Case No. 16 - 6532N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

HIGHLANDS REGIONAL MEDICAL

CENTER,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on April 12,

2017.

STATEMENT OF THE CASE

On October 25, 2016, Petitioners, Heather James and Brian

Cooper, on behalf of and as parents and natural guardians of Wyatt

Co oper (Wyatt), a minor, filed a Petition f or Benefits Filed Under

Protest (Petition), with the Division of Administrative Hearings

(DOAH). The Petition alleged that Wyatt suffered brain damage and

other delays as a result of a difficult birth.

The Petition named David Guerra, M.D., as the physician

providing obstetric services at the birth of Wyatt at Highlands

Regional Medical Center in Sebring, Florida. Petitioners further

state that they are not seeking NICA benefits, but are seeking to

establish their right to sue in the appropriate court.

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

2016. On November 16, 2016, DOAH received a return receipt from

David Guerra, M.D., showing that he had been served with a copy of

the Petition. DOAH ser ved Highlands Regional Medical Center with

a copy of the Petition on November 17, 2016.

On December 2, 2016, Highlands Regional Medical Center filed

a Motion to Intervene, which was granted. As of this date,

Dr. Guerra has not petitioned to intervene in this proceeding.

On March 22, 2017, NICA filed a Response to the Petition,

giving notice that the injury does not meet the definition of a

" birth - related neurological injury " as defined in

section 766.302(2), Florida Statutes, which specifically requires

that the injury render " the infant permanently and substantially

mentally and physically impaired. "

On April 12, 2017, NICA filed an Unopposed Motion for Summary

Final Order. The Motion stated that neither Petitioners nor

Intervenor take a position on t he Motion.

FINDINGS OF FACT

1. Wyatt Cooper was born on July 21, 2015, at Highlands

Regional Medical Center in Sebring, Florida.

2. NICA retained Donald C. Willis, M.D. (Dr. Willis), to

review Wyatt ' s medical records. In a medical report dated

Dec ember 15, 2016, Dr. Willis made the following findings and

expressed the following opinion:

In summary, labor at 37 weeks was complicated

by a non - reassuring FHR pattern during labor,

followed by a shoulder dystocia at delivery.

The newborn was depressed with Apgar scores

1/3/6/6/7. Blood cultures were positive for

E. coli. Respiratory distress at birth

progressively worsened and required ECMO. The

newborn hospital course was complicated by

multisystem organ failures. MRI was

consistent with encephalo malacia.

The cord blood pH of 7.25 seems somewhat

inconsistent with the FHR pattern prior to

delivery, a shoulder dystocia at birth and low

Apgar scores of 1/3. The baby had E. coli

sepsis, presumably prior to birth. Sepsis

could account for the fetal tachycardia and

decreased FHR variability during labor.

Clinically, it would be reasonable that oxygen

deprivation occurred during labor and delivery

and continued into the post delivery period.

If the cord pH is correct, it would suggest

the oxygen depr ivation occurred more likely

during the immediate post delivery period. In

either case, oxygen deprivation occurred

during the post delivery period and the oxygen

deprivation resulted in brain injury.

There was an apparent obstetrical event that

resulted in loss of oxygen to the baby ' s

brain, primarily during the immediate post

delivery period. The oxygen deprivation

resulted in brain injury. I am not able to

comment about the severity of the brain

injury. E. coli sepsis would likely be a

contributing factor for the oxygen deprivation

and brain injury.

3. Dr. Willis ' opinion that there was an obstetrical event

that resulted in loss of oxygen to the baby ' s brain prim arily

during the immediate post - delivery period which resulted in brain

injury is credi ted.

4. Respondent retained Michael Duchowny, M.D.

(Dr. Duchowny), a pediatric neurologist, to evaluate Wyatt.

Dr. Duchowny reviewed Wyatt ' s medical records and performed an

independent medical examination on him on March 8, 2017.

Dr. Duchowny made the following findings and summarized his

evaluation as follows:

IN SUMMARY Wyatt ' s neurological examination

reveals evidence of generalized hypotonia,

borderline expressive language delay and

evidence of high activity level and short

attention span. There are no focal or

lateralizing findings.

I have not yet had the opportunity to review

medical records and will issue a final report

once the review process is complete.

5. Following his review of medical records, Dr. Duchowny

wrote an Addendum dated Marc h 14, 2017, which amended the above -

referenced independent medical evaluation report. The addendum

reads in pertinent part:

Wyatt remained in the newborn nursery for a

total of 65 days. His course was obviously

extremely complicated with many risk facto rs

for overall development. However, Wyatt does

not have a substantial motor impairment, and

his neurological deficits were likely

acquired after birth. I am therefore not

recommending consideration for inclusion in

the NICA program.

6. Dr. Duchowny ' s opinion that Wyatt does not have a

substantial motor impairment is credited.

7. In order for a birth - related injury to be compensable

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan) , the injury must meet the definition of a bi rth -

related neurological injury and the injury must have caused both

permanent and substantial mental and physical impairment.

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

have been no expert opinions filed that are contrary to the

opinion of D r. Duchowny that Wyatt does not have a substantial

motor impairment. While Wyatt has neurological deficits, these

deficits do not render him permanently and substantially

physically impaired.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (2014).

10. The Plan was established by the Legislature " to provide

compensation on a no - fault basis, for a limited class of

catastrophic inju ries that result in unusually high costs for

custodial care and rehabilitation. " § 766.301, Fla. Stat. The

Plan applies only to a birth - related neurological injury, which is

defined in section 766.302(2) as follows:

" Birth - related neurological injury " m eans

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 oc curring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired . This definition shall

apply to live births only and sha ll not

include disability or death caused by genetic

or congenital abnormality. (emphasis added).

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

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

the plan by filing a claim f or compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. 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 submit relevant written inf ormation relating to the issue of

whether the injury is a birth - related neurological injury. "

§ 766.305(4), Fla. Stat.

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

a compensable birth - related neurological injury, it may award

compensatio n to the claimant, provided that the award is approved

by the Administrative 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 resolv ed by the assigned Administrative Law Judge in

accordance with the provisions of chapter 120, Florida Statutes.

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

13. In discharging this responsibility, the Administrative

Law Judge must make the following dete rminations based upon all

available evidence:

(a) Whether the injury claimed 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 c ord 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 injur y as defined in

s. 766.302(2).

(b) Whether obstetrical services were

delivered 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

tea ching hospital supervised by a

participating physician in the course of

labor, 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 conclud es that the " infant has sustained

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth. "

§ 766.31(1), Fla. Stat.

14. While Dr. Willis established that there was an apparent

obstetrical eve nt which resulted in loss of oxygen to Wyatt ' s

brain during the immediate post - delivery period that resulted in

brain injury, the remaining issue to be determined is whether the

injury resulted in a permanent and substantial mental impairment

and a permane nt and substantial physical impairment, inasmuch as

both are required to establish compensability. Fla. Birth - Related

Neurological Injury Comp. Ass ' n v. Div. of Admin. Hearings , 686

So. 2d 1349 (Fla. 1997).

15. The evidence, which is not refuted, esta blished that

Wyatt does not have a permanent and substantial physical

impairment. Thus, Wyatt is not entitled to benefits under the

Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

T hat the P etition filed un der protest by Heather James and

Brian Cooper, on behalf of and as parents and natural guardians

of Wyatt Cooper, is dismissed with prejudice.

DONE AND ORDERED this 20th day of April , 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 20th day of April , 2017 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified M ail No. 7015 0640 0003 7650 2170 )

Christopher J. Bilecki, Esquire

Paul & Perkins, P.A.

3117 Edgewater Drive

Orlando, Florida 32804

(eServed)

(Certified M ail No. 7015 0640 0003 7650 2163 )

Justine D. Adamski, Esquire

La Cava & Jacobson, P.A.

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7015 0640 0003 7650 2156 )

Brooke M. Gaffney, Esquire

Smith Bigman Brock

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Cer tified Mail No. 7015 0640 0003 7650 2149 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0003 7650 2132 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7650 2125 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administr ative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

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

within 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 o f Appeal. See

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

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

1992).