17-004797N Ryan Michael Craig, On Behalf Of And As Parent And Natural Guardian Of Ryan Makye Craig, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 9, 2018.

Summary: The infant did not sustain a birth-related neurological injury and is therefore not eligible for benefits under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RYAN MICHAEL CRAIG, on behalf of

and as parent and natural

guardian of RYAN MAKYE CRAIG, a

minor,

Petitioner,

vs. Case No. 17 - 4797N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Resp ondent.

_______________________________/

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 Comp ensation Association

(NICA), on July 13, 2018. Petitioner did not file a response.

STATEMENT OF THE CASE

On August 16, 2017, Petitioner filed a Petition for Benefits

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

with the Division of Adm inistrative Hearings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named

David Teitelbaum, M.D. as the physician who provided obstetric

services for the birth of Rya n M. Craig (Ryan) on September 4,

2015, at Central Florida Regional Hospital in Sanford, Florida.

DOAH served Respondent with a copy of the Petition on

August 29, 2017. Central Florida Regional Hospital and

Dr. Teitelbaum were served with a copy of th e Petition on

September 5, 2017, and October 5, 2017, respectively.

On April 11, 2017, Respondent filed its Response to Petition

for Benefits, suggesting that the subject claim was not

compensable and requesting a final hearing to address said issue.

On May 9, 2018, the undersigned issued an Order requiring the

parties to confer and advise whether a final hearing would be

required. In response, on May 16, 2018, Respondent filed a

Status Report representing that the parties were not requesting a

final he aring, and that Respondent intended to file an Unopposed

Motion for Summary Final Order.

On July 13 2018, Respondent filed an Unopposed Motion for

Summary Final Order, requesting that a summary final order be

entered finding that the claim is not compens able because Ryan

did not sustain a Ðbirth - related neurological injuryÑ as that

term is defined in section 766.302(2), Florida Statutes, and

dismissing the Petition. Said motion represents that Respondent

has conferred with Petitioner concerning said moti on and the

relief sought, and that Petitioner does not oppose the relief

sought. As noted above, Petitioner did not file a response to

the motion.

FINDINGS OF FACT

1. Ryan was born on September 4, 2015, at Central Florida

Regional Hospital, in Sanford, Florida.

2. The physician providing obstetric services and who was

present at RyanÓs birth was Dr. David Teitelbaum. At the time of

RyanÓs birth, Dr. Teitelbaum was a NICA participating physician.

3. Respondent retained Donald Willis, M.D., an obste trician

specializing in maternal - fetal medicine, to review RyanÓs medical

records and opine as to whether there was an injury to his brain

or spinal cord that occurred in the course of labor, delivery, or

resuscitation in the immediate post - delivery period due to oxygen

deprivation or mechanical injury.

4. In a report dated April 5, 2018, Dr. Willis concluded

the following:

In summary, labor was complicated by a non -

reassuring FHR pattern requiring emergency

Cesarean section delivery. The baby was

depr essed at birth with Apgar scores of

2/2/4. Resuscitation included chest

compressions for 2 minutes, intubation and

intravenous fluid bolus. Cooling protocol

was initiated. The newborn hospital course

was complicated by multi - system organ

failures, inclu ding respiratory distress,

hypotension, coagulopathy and elevated liver

function studies. Despite the clinical

findings of birth related hypoxia, only the

initial EEG showed mild encephalopathy, which

normalized. No abnormalities were reported

on brain M RIÓs after birth and at 6 months of

age.

There was a clinically apparent obstetrical

event that resulted in oxygen deprivation

during labor, delivery and continuing into

the immediate post - delivery period. The

oxygen deprivation would have been expected

to result in some degree of brain injury.

5. Attached to RespondentÓs Unopposed Motion for Summary

Final Order is the affidavit of Dr. Willis, dated Jun e 27, 2018.

In his affidavit, Dr. Willis opines, based on his education ,

training , and experien ce, and within a reasonable degree of

medical probability, that there was a clinically apparent

obstetrical event that resulted in oxygen deprivation during

labor, delivery , and continuing into the post - delivery period.

6. Respondent also retained L aufey Y. Sigurdardottir, M.D.,

a pediatric neurologist, to review RyanÓs medical records,

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

whether he 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 RyanÓs father

and family members, and conducted an IME of Ryan on November 22,

2017.

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

follows:

Summary: Patient is a 2 - year - old male with

history of being born via an emergency C -

section after normal uncomplicated pregnancy.

Apgar scores were low: 2 whole body cooling

was performed at Florida Hospital at

1 minute, 2 at 5 minutes, 4 at 10 minutes and

6 at 15 minutes. And patient had neurologic

sequelae including a cognitive impairment

autistic features. Despite having early

motor delays, he is currently ambulatory.

Result as to question 1: Ryan is found to

have substantial delays in mental abilities

but mild delays in motor abilities at this

time.

Result as to question 2: In review of

available documents there is evidence of

impairment consistent with a neurologic

injury to the brain or spinal cord acq uired

due to oxygen deprivation.

Result as to question 3: The prognosis for

full motor recovery is good but mental

recovery is unlikely and need for vast

therapies to improve his language development

and decrease autistic features is needed.

His life e xpectancy is excellent.

In light of evidence presented, I believe

Ryan does not fulfill criteria of both

substantial and mental and physical

impairments at this time. I do not feel that

Ryan should be included in the NICA program

for that reason.

8. RespondentÓs Unopposed Motion for Summary Final Order

also relies upon the attached affidavit of Dr. Sigurdardottir,

dated June 25, 2018. In her affidavit, she opines, based upon

her education, training and experience, and to a reasonable

degree of medical probability, that Ryan Ðhas substantial delays

in mental abilities,Ñ however, Ðhe has only mild delays in motor

abilities.Ñ

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

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

Dr. Sigurdardottir . Their unrefuted opinions are credited.

CONCLUSIONS OF LAW

10. DOAH has jurisdiction over the parties to and the

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

Fla. Stat.

11. The Plan was established by the Legisla ture "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.

12. The injured infant, her or his personal represent ative,

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 ser vice 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.

13. Respondent ha s deter mined 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.

14. In ruling on the motion, the admin istrative law judge

must make the 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, tha t 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 th e

injury is a birth - related neurological 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

hospit al; . . . .

§ 766.309(1)(a), (b), Fla. Stat.

15. 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 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.

16. The evidence establishes that there was an obstetrical

event that resulted in loss of oxygen to RyanÓs brain during the

cours e of labor, delivery, or resuscitation in the immediate

post - delivery period in a hospital, and that he sustained a

permanent and substantial mental impairment as a result thereof.

The undisputed evidence further establishes that Dr. Teitelbaum

was a NICA participating physician at the time of RyanÓs birth.

The unrefuted evidence, however, establishes that Ryan did not

sustain a permanent and substantial physical impairment. Thus,

he did not sustain a birth - related neurological injury as defined

in secti on 766.302(2), Florida Statutes, 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 this 9 th 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 - 3060

(85 0) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of August , 2018 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Ne urological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4922)

Brian C. Lamb, Esquire

Martinez Manglardi, P.A.

540 North Semoran Boulevard

Orlando, Florida 32807

(Certified Mail Number 7018 0040 0000 9772 4939 )

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4946 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9772 4953 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Ad ministration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4960 )

Central Florida Regional Hospital

Attention: Risk Management

1401 West Seminole Boulevard

Sanford, Florida 32771

(Certifie d Mail Number 7018 0040 0000 9772 4977 )

David Teitelbaum, M.D.

2270 Foliage Oak Terrace

Oviedo, Florida 32766

(Certified Mail Number 7018 0040 0000 9772 4984 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge s hall 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 administrativ e 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).