18-000299N Michelle Ricketts And Brian Ricketts, Individually, And As Parents And Natural Guardians Of Eliana Ricketts, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 15, 2019.

Summary: The infant did not sustain substantial mental and physical impairments, thus her injury is not compensable under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE RICKETTS AND BRIAN

RICKETTS, Individually, and as

Parents and Natural Guardians of

ELIANA RICKETTS, a minor,

Petitioners,

vs. Case No. 18 - 0299N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

AS SOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This case is before the administrative law judge to consider

the Unopposed Motion for Summary Final Order (Motion) filed

March 4, 20 19, by Respondent, Florida Birth - Related Neurological

Injury Compensation Association (NICA) . The Motion relies on the

affidavits and reports of Donald C. Willis, M.D., and Laufey Y.

Sigurdardottir, M.D . The time authorized pursuant to Florida

Administra tive Code Rule 28 - 106.204 to respon d to the Motion has

passed, with no responses being filed, and the case is ripe for

consideration.

STATEMENT OF THE ISSUES

The issue s to be determined are whether Eliana Ricketts

(Eliana) suffered a birth - related neurolog ical injury ; and , if

so, whether that injury renders the infant permanently and

substantially mentally and physically impaired , as provided by

section 766.302(2), Florida Statutes (2016) .

PRELIMINARY STATEMENT

On January 8, 2018, Petitioners filed a Peti tion for

Determination of NICA Coverage Filed Under Protest with the

Division of Administrative Hearings (Division) , for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named

Eri ka D. Glas, D.O., as the physician who provided obstetrical

services at ElianaÓs birth on September 16, 2017 , 1/ at Southern

Baptist Hospital of Florida, Inc., d/b/a Baptist Medical Center

Jacksonville (Baptist Hospital ).

On January 19, 2018, the Division m ailed a copy of the

Petition to NICA, Dr. Glas, and Baptist Hospital by certified

mail. All three were served on January 22, 2018.

After receiving an extension of time for filing a response,

on April 26, 2018, NICA filed a Response to Petition for Benefit s

indicating its position that ElianaÓs injury was not compensable

under the Plan. That same day, an Order was issued instructing

the parties to notify the administrative law judge whether a

hearing was necessary ; and , if so, appropriate dates upon which

to conduct the hearing.

Petitioners requested and received an extension of time in

which to respond to the Order, because their experts had not had

sufficient time to review NICAÓs expert reports . On May 25,

2018, Baptist Hospital filed a Petition for Lea ve to Intervene,

which was granted by Order dated May 31, 2018. Baptist Hospital

also requested and received an extension of time to file a

response regarding the need for a hearing. On July 30, 2018, the

parties filed a Joint Response to Order Requiring Dates for

Hearing, and based upon their response, the matter was scheduled

for hearing to commence April 25, 2019. 2/

On February 1, 2019, Baptist Hospital filed a Notice of

Voluntary Withdrawal of Intervention with Prejudice, advising

that it had determin ed not to take any position on the issue of

compensability . Finally, on March 4, 2019, NICA filed an

Unopposed Motion for Summary Final Order. NICA advised that

Petitioners do not intend to challenge NICAÓs determination on

compensability, and requested that a s ummary f inal o rder be

issued determining that the claim is not compensable. The Motion

relies on the reports and affidavits of Donald C. Willis , M.D.,

and Laufey Y. Sigurdardottir , M.D.

FINDINGS OF FACT

1. Eliana was born on September 16, 2017, a t Baptist

Hospital , a licensed hospital in Jacksonville, Florida.

2. Eliana was a child born of a single gestation, weighing

3,595 grams.

3. NICA retained Donald C. Willis, M.D., an obstetrician

specializing in maternal - fetal medicine, to review the medi cal

records of Eliana and her mother, Michelle Ricketts. NICA asked

Dr. Willis to provide an opinion as to whether there was a brain

or spinal cord injury to Eliana , due to either oxygen deprivation

or mechanical injury that occurred in the course of labo r,

delivery, or resuscitation in the immediate postdelivery period

in the hospital.

4 . Dr. Willis authored a report to NICA on February 20,

2018, which is incorporated into his affidavit dated March 7,

2019 . In his report, Dr. Willis stated in part:

The mother, Michelle Ricketts [had] . . . no

significant prenatal problems. She was

admitted to the hospital at term in labor.

Her cervix was d i lated 4 cms on admission.

The fetal heart rate (FHR) monitor tracing

during labor was available for review. The

b aseline heart rate was normal at 140 bpm

with normal v ariabi lity. A decrease in FHR

variability developed about 3 hours prior to

delivery. Variable FHR decelerations started

about 30 minutes prior to delivery. Cervical

dilat ion was complete.

Vacuum ext ractor was applied to assist

vaginal delivery due to FHR decelerations and

maternal fatigue. Delivery of the fetal head

occurred after three pulls with one pop - off.

Delivery was then complicated by a shoulder

dystocia, lasting 4 minute 40 seconds. Birth

weight was 3,595 grams.

The newborn was depressed with Apgar scores

of 3/5. Umbilical cord blood gas was not

done. There was no respiratory effort at

birth. Intubation was required and the baby

transferred to the NICU. Chest X - R ay showed

no infiltrat es. Hypoxic ischemic

encephalopathy (HIE) was suspected and head

cooling protocol initiated.

There was a large subgaleal hematoma. The

scalp was boggy with swelling behind the

ears. The subgaleal hemorrhage resulted in

anemia with a Hct of 27% to 28%. Blood

transfusion was required. DIC was also

present. The platelet count dropped to

84,000 with fibr inogen levels of 166 to

110 and prolonged PT and PTT.

Cryoprecipitate and platelet transfusions

were given.

Seizures began shortly after birth. Arteri al

blood gas (ABG) at one hour after birth had a

pH of 7.23 and a base excess of - 17. ABG 4

hours later had a pH of only 7.14 and a base

excess remaining at - 17. The initial EEG was

abnormal, confirming seizure activity.

Follow - up EEG on DOL [day of lif e] 3 was

consistent with diffuse cerebral dysfunction.

MRI on DOL 5 showed extensive bilateral

infarctions, consistent with Ðsignificant

anoxic injuryÑ and extensive scalp swelling.

* * *

There was an obstetrical event that resulted

in loss of oxyge n to the babyÓs brain during

delivery and continuing into the immediate

post delivery period. The oxygen deprivation

resulted in brain injury. I am not able to

comment about the severity of the injury.

5 . ElianaÓs medical records were also reviewed by Laufey

Sigurdardottir , M.D., a board - certified pediatric neurologist at

Nemours ChildrenÓ s Hospital. Dr. Sigurdardottir examined Eliana

when she was just short of seven months old. Included in the

records she reviewed were records of a neurological follo w - up at

four months with another neurologist , which state in part :

[Four] month old girl with history of HIE and

subsequent seizures that have since resolved.

Over all , Eliana has tolerated Phenobarbital

without side effects. Her most recent EEG

(12/5/17 ) was normal. She has not had any

clinical events concerning for seizures. She

is currently on track with milestones

(tracking, rolling, cooing, etc.) and

physical exam is notable for the absence of

any focal features and normal tone. She

previously tes ted out of ÒEarly StepsÓ as

there were no motor concerns from that

perspective.

6 . As a result of her own examination of the infant,

Dr. Sigurdardottir found Eliana upon examination to be alert,

interactive, with what appeared to be normal development. She

also found that she had a strong grasp with both hands

bilaterally, and had normal response on vertical and horizontal

suspension. She stated in summary:

Patient is a 6 month old with history of

Brachial plexus injury during complicated

vaginal deli very as well as hypoxic ischemic

event, resulting in a moderate to severe

hypoxic ischemic encephalopathy. She had

refractory neonatal seizures, evidence of

acute ischemic injury on brain MRI and

abnormal neurological exam in neonatal

period. She has dev eloped acquired

microcephaly but has made remarkable

neurologic recovery and is close to being age

appropriate for her motor milestones at this

time.

7 . Dr. Sigurdardottir opined that while Eliana did suffer a

neurological i njury to the brain due to oxyg en deprivation during

labor and delivery, she did not find permanent and substantial

delays in motor and mental abilities, and, at the time of the

examination, did not fulfill the criteria of having permanent and

substantial mental and physical impairment.

8 . The opinions of Dr s . Willis and Sigurdardottir , which

are unrebutted, are credited. It is found that Eliana suffered

from oxygen deprivation during delivery and into the immediate

postdelivery period, which caused a brain injury.

9 . While Dr. Will is determined that there was a brain

injury at birth, he did not comment on the severity of the

injury. Dr. Sigurdardottir , however, opined , and it is found ,

that the injury did not result in a permanent and substantial

physical and mental impairment.

CON CLUSIONS OF LAW

10 . The Division has jurisdiction over the parties to and

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

Fla. Stat.

1 1 . The Plan was established by the Legislature Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claimsÑ related to births

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

1 2 . An injured infant, his or her personal representative,

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

the Plan by filing a claim for compensation with the Division .

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat.

Section 766.305(4) provides that NICA, which administers the

Plan, has 45 days from the date that a complete claim is served

to fil e 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.

1 3 . If NICA determines that the alleged injury is a

birth - related neurological injury that is comp ensable under the

Plan, it may award compensation to the claimant, provided that

the award is approved by the assigned administrative law judge.

§ 766.305(7), Fla. Stat. However, if NICA disputes the claim as

it does in this case, the dispute must be res olved by the

administrative law judge in accordance with chapter 120, Florida

Statutes. §§ 766.304, 766.30, and 766.31, Fla. Stat.

1 4 . The first inquiry is whether the infant has sustained a

birth - related neurological injury as defined by section

766.302 (2), which provides:

(2) ÐBirth - related neurological injuryÑ

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 gram s 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 imp aired. This definition

shall apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality.

1 5 . If the administrative law judge determines that the

infant has sustained a brain or spinal cord injury caus ed by

oxygen deprivation or mechanical injury, and that as a result the

infant was rendered permanently and substantially mentally and

physically impaired, then section 766.309(1) provides that there

is a rebuttable presumption that the injury is a birth - r elated

neurological injury. The presumption requires evidence of both

the injury and the impairments as a result of that injury.

1 6 . In this case, the evidence does not support such a

presumption. The undisputed evidence presented indicates that

there w as an injury to ElianaÓs brain or spinal cord that was

caused by oxygen deprivation occurring in the course of labor,

delivery, and into the immediate postdelivery period.

1 7 . However, the evidence presented indicates that the

injury suffered at birth d id not render Eliana to be permanently

and substantially mentally and physically impaired.

1 8 . Based upon the affidavits and opinions of Drs. Willis

and Sigurdardottir , Eliana did not sustain a birth - related

neurological injury as defined in section 766 .302(2) and is not

eligible for benefits under the Plan.

CONCLUSION

Based on the foregoing, Findings of Fact and Conclusions of

Law, it is ORDERED that RespondentÓs Motion for Summary Final

Order on the issue of a birth - related neurological injury is

grant ed, and Petitioners Ó claim is found and determined not to be

compensable. The Petition is dismissed with prejudice.

DONE AND ORDERED this 1 5 th day of March , 2019 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELS ON

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 Administrativ e Hearings

this 1 5 th day of March , 2019 .

ENDNOTE S

1/ The Petition actually states that the infant was born in 20 0 7

as opposed to 2017, but refers to the obstetrical records as

being from 2017. All of the records submitted indicate that

Eliana was born in 2017, not 2007.

2/ The hearing was scheduled several months in advance because of

ElianaÓs age at the time of her evaluation by Dr. Sigurdardottir .

The delay would give the parties an opportunity for a

re - evaluation to see if there was any change in age - related

benchmarks. Given the partiesÓ decision not to contest NICAÓs

determination that the claim was not compensable, no

re - evaluation became necessary.

COPIES FURNISHED:

(via certified mail)

Grant A. Kuvin, Esquire

Morgan & Morgan

76 South L aura Street , Suite 1100

Jacksonville, Florida 32202

(eServed)

(Certified Mail 7015 0640 0001 2706 9013 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, F lorida 32308

(eServed)

(Certified Mail 7015 0640 0001 2706 9020 )

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified Mail 7015 0640 0001 2706 9037 )

Earl E. Googe, Jr., Esquire

Smith, H ulsey and Busey

1800 Wachovia Bank Tower

225 Water Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail 7015 0640 0001 2706 9044 )

Erika Dawn Glas, D.O.

836 Prudential Drive, Suite 1103

Jacksonville, Florida 32207

(Certified Mail 7015 0640 0001 2 706 9051 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail 7015 0640 0001 2706 9068 )

Mary C. Mayhew, Secretary

Health Quality Assurance

Agency f or Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail 7015 0640 0001 2706 9075 )

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 ge ncy 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).