17-002935N Anquan Carter, On Behalf Of And As Parent And Natural Guardian Of Mariah Dixon, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 16, 2018.

Summary: Child did not sustain a birth-related neurological injury.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANQUAN CARTER, on behalf of and

as parent and natural guardian

of MARIAH DIXON, a minor,

Petitioner,

vs. Case No. 17 - 2935N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_ ______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon an Unopposed

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation A ssociation

(NICA), on August 13, 2018.

STATEMENT OF THE CASE

On May 3, 2017, Petitioner filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et seq. (Petition)

with the Division of Administrative Hearings (DOAH) for a

determination o f compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named

Ghulam Khan, M.D. , as the physician who provided obstetric

services for the birth of Mariah Dixon (Mariah) on September 13,

2013, at Baptist Medical Center South (Baptist) in Jacksonville,

Florida.

DOAH served Respondent with a copy of the Petition (via

certified mail) on May 24, 2017. Baptist and Dr. Khan were

served with a copy of the Petition (via certified mail) on

May 24, 2017, and Jun e 11, 2017, respectively.

On November 6, 2017, Respondent filed its Response to

Petition for Benefits, suggesting that the subject claim was not

compensable and requesting a hearing to address said issue. On

November 17, 2017, the undersigned issued an Order requiring the

parties to confer and advise whether a final hearing would be

required. After receiving the partiesÓ responses, a hearing was

scheduled for February 5, 2018. On January 17, 2018, Petitioner,

now represented by counsel, filed a motion to continue the

hearing. On January 22, 2018, the motion was granted and the

hearing was rescheduled to May 8, 2018. On April 24, 2018,

Petitioner filed an Unopposed Motion for Continuance of the Final

Hearing. Said motion was granted.

On June 21, 201 8, the parties filed a Joint Response to

Order Granting Continuance, wherein the parties represented that

ÐPetitioners have indicated that they do not intend to challenge

NICAÓs position on compensability,Ñ and further represented that

a hearing was not re quired. Following the undersignedÓs Order

Requiring Response, issued August 3, 2018, Respondent filed the

instant Unopposed Motion for Summary Final Order. Said motion

requests that a summary final order be entered finding that the

claim is not compensab le because Mariah did not sustain a Ðbirth -

related neurological injuryÑ as that term is defined in

section 766.302(2), Florida Statutes, and dismissing the

Petition.

FINDINGS OF FACT

1. Mariah was born on September 13, 2013, at Baptist in

Jacksonville, Florida.

2. Respondent retained Donald Willis, M.D., an obstetrician

specializing in maternal - fetal medicine, to review Mariah and her

motherÓs medical records and opine as to whether there was an

injury to MariahÓs brain or spinal cord that occurred i n the

course of labor, delivery, or resuscitation in the immediate

post - delivery period due to oxygen deprivation or mechanical

injury.

3. Attached to RespondentÓs Unopposed Motion for Summary

Final Order is the affidavit of Dr. Willis, dated November 22 ,

2017. In his affidavit, Dr. Willis opines, to a reasonable

degree of medical probability, Ðthat there was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to [MariahÓs] brain or spinal cord occurring in the course

of la bor, delivery, or resuscitation in the postdelivery period.Ñ

4. Respondent also retained Laufey Y. Sigurdardottir, M.D.,

a pediatric neurologist, to review MariahÓs medical records,

conduct an Independent Medical Examination (IME), and opine as to

whether she suffers from a permanent and substantial mental and

physical impairment as a result of a birth - related neurological

injury. Dr. Sigurdardottir reviewed the available medical

records, obtained a full historical account from MariahÓs

parents, an d conducted an IME of Mariah on September 27, 2017.

5. Dr. SigurdardottirÓs IME report provides, in part, as

follows:

Summary: Patient is a 4 - year - old girl with

history of NICU admission after birth via

C section. No clear evidence of neonatal

e ncephalopathy, normal cord blood gas and

Apgars. She has congenital ocular deformity

with colobomas and a global developmental

delay to include autistic features. Her

pattern of delays in not typical for that

seen after a hypoxic ischemic injury and MRI

brain was normal.

Result as to question 1: Mariah is found to

have substantial delays in mental abilities

but mild delays in motor abilities.

Result as to question 2: In review of

available documents, her impairment is not

typical of a neurologic inj ury to the brain

or spinal cord acquired due to oxygen

deprivation or mechanical injury? [sic] No

clear evidence is reviewed that suggests a

hypoxic ischemic even during labor or

delivery.

Result as to question 3: The prognosis for

full motor and mental recovery is poor and

the life expectancy is normal.

In light of evidence presented I believe

Mariah does not fulfill criteria of a

substantial mental and physical impairment at

this time. I do not feel that Mariah should

be included in the NICA program. . . .

6. RespondentÓs Unopposed Motion for Summary Final Order

also relies upon the attached affidavit of Dr. Sigurdardottir.

In her affidavit, Dr. Sigurdardottir affirms the statements and

opinions contained in her IME report, and opines, to a re asonable

degree of medical probability, that Mariah did not suffer a

birth - related neurological injury.

7. A review of the file reveals no contrary evidence was

presented to refute the findings and opinions of Dr. Willis and

Dr. Sigurdardottir. Th eir unrefuted opinions are credited.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 766.301 - 766.316,

Fla. Stat.

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

purpose of provid ing 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.

10. 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), Fla. Stat.

Respondent, 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 - related neurological injury." § 766.305(4), Fla. Stat.

11. Respondent has determined that Petitioner does not have

a claim that is compensable under the Plan and has filed an

Unopposed Motion for Summary Final Order, requesting that an

order be entered finding that the claim is not compensable.

12. In ruling on the motion, the administrative law judge

must make t he following determination based upon the 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 br ain 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 neu rological injury

as defined in s. 766.303(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; . . . .

§ 766.309(1)(a), ( b), Fla. Stat.

13. 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 gestat ion 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 course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospi tal, which renders the

infant permanently and substantially mentally

and physically impaired.

14. The undisputed evidence establishes that there was not

an injury to MariahÓs brain or spinal cord caused by oxygen

deprivation or mechanical injury occurri ng in the course of

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

period in a hospital. The undisputed evidence further

establishes that she did not sustain a permanent and substantial

physical impairment as a result thereof.

15. Hav ing concluded this threshold issue, the undersigned

need not determine whether Dr. Khan was a NICA participating

physician at the time of MariahÓs birth.

16. The unrefuted evidence establishes that Mariah did not

sustain a birth - related neurological inj ury as defined in section

766.302(2) , and, therefore, is not eligible for benefits under

the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition is dismissed with prejudice.

DONE AND ORDERED t his 16th day of August , 2018 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of August , 2018 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Rela ted Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7016 0910 0001 7980 2151)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallah assee, Florida 32301

(eServed)

(Certified Mail Number 7016 0910 0001 7980 2168 )

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified Mail Number 7016 0910 0001 7980 2175 )

Robin Treto, Es quire

Knopf Bigger

Suite 220

1560 North Orange Avenue

Winter Park, Florida 32789

(eServed)

(Certified Mail Number 7016 0910 0001 7980 2182 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tall ahassee, Florida 32399 - 3275

(Certified Mail Number 7016 0910 0001 7980 2199 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Numbe r 70 15 0640 0003 7653 0234 )

Ghulam Khan, M.D.

13241 Bartram Park Boulevard, Suite 1309

Jacksonville, Florida 32258

(Certified Mail Number 7015 0640 0003 7653 0241 )

Baptist South Medical Center

Attention: Risk Management

14550 Old Saint Augustine Road

J acksonville, Florida 32258

(Certified Mail Number 7015 0640 0003 7653 0258 )

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

766.311(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 of 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).