18-001071N Jessica Fisher-Douglas And Rolando Douglas, Individually And As Parents And Next Friends Of Koda Fisher-Douglas, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, September 11, 2018.

Summary: The evidence establishes that there was an obstetrical event that resulted in loss of oxygen to the baby's brain, however, the baby did not sustain a permanent and substantial mental and physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA FISHER - DOUGLAS and

ROLANDO DOUGLAS, individually

and as parents and next friends

of KODA FISHER - DOUGLAS, a minor,

Petitioners,

vs. Case No. 18 - 1071N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATIO N

ASSOCIATION,

Respondent,

and

HALIFAX HOSPITAL MEDICAL CENTER

AND JOHN WILLIAM MEYERS, M.D.,

Intervenors.

_______________________________/

FINAL ORDER

This cause came before the undersigned upon a Joint Motion

to Submit Stipulated Factual Record in Lieu of a Contested

Hearing, which was granted on August 10, 2018; a Stipulated

Record; and a proposed final order submitted by Respondent,

Florida Birth - Related Neurological Injury Compensation

Association (NICA).

ST ATEMENT OF THE ISSUES

The issue in this case is whether Koda Fisher - Douglas (Koda)

suffered a birth - related injury as defined by section 766.302(2),

Florida Statutes, for which compensation should be awarded under

the Florida Birth - Related Neurological Inj ury Compensation Plan

(Plan).

PRELIMINARY STATEMENT

On February 20, 2018, Petitioners filed a Petition for

Determination of NICA Coverage (Petition) with the Division of

Administrative Hearings (DOAH) alleging that they were uncertain

as to whether Koda sustained a birth - related neurological injury

as defined by section 766.302, Florida Statutes, and sought a

determination of the same.

The Petition named John William C. Meyers, M.D.

(Dr. Meyers) , as the physician who provided obstetric services

fo r the birth of Koda on November 17, 2016, at Halifax Medical

Center in Daytona Beach, Florida.

On March 5, 2018, DOAH mailed a copy of the Petition to NICA

by certified mail. The certified receipt indicates the same was

served on March 9, 2018. On March 5, 2018, DOAH mailed copies of

the Petition by certified mail to Dr. Meyers and Halifax Medical

Center. On March 19, 2018, Halifax Medical CenterÓs Motion to

Intervene was granted. On March 27, 2018, Dr. MeyerÓs Motion to

Intervene was granted.

On June 13, 2018, NICA filed its Response to Petition for

Benefits, suggesting that the subject claim was not compensable

because Koda had not suffered a birth - related neurological injury

and requesting a final hearing to address said issue.

Ultimate ly, the parties filed a Joint Motion to Submit Stipulated

Factual Record in Lieu of Contested Hearing. Said motion was

granted on August 10, 2018, and the parties were directed to

submit their stipulated record on or before August 17, 2018, and

any writte n arguments or proposed final orders on or before

August 24, 2018. Upon NICAÓs Unopposed Motion to Extend Deadline

to Submit a Proposed Final Order, an Order was entered, giving

the parties until August 27, 2018, to file their written

arguments and/or pro posed final orders.

On August 14, 2018, Pe titioners, NICA, and Dr. Meyers filed

a ÐJoint Stipulation Concerning IntervenorÓs Participation in

NICA.Ñ In this filing, the above - noted parties agreed and

stipulated that, on or about November 17, 2016, Dr. Meyers was a

participating provider in the Plan.

The partiesÓ Stipulated Record was timely filed on

August 16, 2018, and the following were thereby admitted into

evidence without objection of any party: Joint Exhibits A

through O; and NICAÓs E xhibits A through D. NICA timely filed a

proposed final order on August 27, 2018, which has been

considered in preparation of this Final Order. Neither

Petitioner s nor Intervenors filed a written argument or proposed

final order.

FINDINGS OF FACT

1. Koda was born a live infant on November 17, 2016, at a

hospital, Halifax Medical Center. Koda was a single gestation,

weighing over 2 , 500 grams at birth.

2. With respect to KodaÓs birth, obstetrical services were

delivered by Dr. Meyers, a NICA partici pating physician, in the

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

delivery period.

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

specializing in maternal - fetal medicine, to review KodaÓs medical

records and opine as to whe ther 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. In his March 13, 2018, report ,

Dr. Willis set forth his findings and opinions which have been

admitted in this matter, without objection. Said findings and

opinions are set forth below in pertinent part:

In summary, pregnancy was complicated by

poorly controlled Maternal Diabetes. Fetal

distress was note d on BPP at 37 weeks,

requiring delivery. Delivery was further

complicated by hydramnios and maternal

obesity. Vacuum extraction and an extended

ÐTÑ incision in the uterus was required. The

baby was depressed at birth with Apgar Scores

of 1/2/5. Cord b lood gas was consistent with

acidosis with a pH of 6.9. The newborn

hospital course was complicated by multi -

system organ failures. Seizure activity was

noted on EEG and MRI was consistent with HIE.

Although the mother was not in labor prior to

deliver y, there was an apparent obstetrical

event that resulted in loss of oxygen to the

babyÓs brain during delivery and continuing

into the immediate post - delivery period. The

oxygen deprivation resulted in a brain injury.

4. NICA also retained Laufey Y. Sigurdardottir, M.D., a

pediatric neurologist, to review KodaÓs 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 Petitioners, and conducted

an IME of Koda on May 31, 2018.

5. In her IME report, Dr. Sigurdardottir set forth her

find ings and opinions which have been admitted in this matter,

without objection. Said findings are set forth below in pertinent

part:

Pregnancy and Birth Summary: Koda was born at

13:37 on 11/17/2016 at Halifax hospital at

37 weeks gestation to a 33 yr old G5P1 female

with insulin dependent diabetes after a high -

risk pregnancy via emergent cesarean section

for non - reassuring fetal heart rate tracing.

There was meconium stained amniotic fluid.

There was difficulty delivering fetal head and

multiple attempt s with vacuum was needed along

with needing to extend incision in T. Infant

was floppy and non - reactive at birth. The

infant was born with Apgar scores of 1 after

one minute, 2 after 5 minutes and 5 at 10

minutes. Patient had respiratory distress and

re quired intubation and positive pressure

ventilation and cardiac compressions was

admitted in critical condition to NICU. Birth

weight 3960 gm (LGA), HC 35.5 cm (>75th

percentile). Cord gas pH 6.9 and BE - 9,

lactic acid 9.7. He had a complex NICU course

requiring cooling for HIE. He had seizures on

rewarming, a congential heart defect (bicuspid

ao valve and VSD). MRI on 11/28/2016 was

abnormal: Ðfindings consistent with hypoxic

ischemic encephalopathy, with acute lesions

within the posterior parietal a nd posterior

parietooccipital watershed areas.Ñ There was

also increased signal attenuation within the

bilaterial lentiform nuclei. Prominent

extraaxial spaces were also noted over the

bifrontal and bitemporal areas. The magnetic

resonance spectroscopy showed Ðmild reversal

of the NAA choline and NAA creatine as well as

elevation of lactate peaks.Ñ He had

respiratory issues and was intubated for

approximately one month. He had G tube placed

for aspirations. He was discharged from

hospital around age 2 months.

* * *

Developmental history: Initially he had

significant stiffness around the hip and

should er girdles and mom describes fisting of

both hand requiring hand and thumb splints.

Koda has no major delays in motor milestones,

was walking at 13 months. He knows 15 words

and does not use any 2 - word phrases. He is

social engaged and is always on the go. He is

in no therapy. Mom feels he is right sided

dominant, both with arm and with leg.

He was seen by rehabilitation at UF. He was

receiving PT at Speech Works in Daytona for an

evaluation, which noted some tightness of

shoulders and hips, and that was flatfooted.

PT feels he is up to date with gross motor

milestones, but problems with hand eye

coordination. He has not been evaluated for

OT/ SLP.

Past medical history: He has a known cardiac

defect with VSD and a bicuspid aortic valve.

This is stable at this time. There was

concern for shuddering spells at age on e year

but EEG was normal.

6. Dr. Sigurdardottir, after conducting he r evaluation,

provided the following opinions: 1) there is evidence of

impairment consistent with a neurologic injury to the brain or

spinal cord acquired due to oxygen deprivation or mechanical

injury; 2) Koda is not found to have substantial delays in m otor

or mental abilities; and 3) that his prognosis for full motor and

mental recovery is good and his life expectancy is full. In

summary, Dr. Sigurdardottir opined that, Ð[i]n light of evidence

presented I believe Koda does not fulfill criteria of a

sub stantial mental and physical impairment at this time. I do not

feel that Koda should be included in the NICA program due to his

near age appropriate motor and language development.Ñ

7. No contrary evidence has been submitted to refute the

findings and opinion of Drs. Willis and Sigurdardottir. Their

unrefuted findings and 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 Pla n 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.

10. The injured infan t, 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. 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 - related neurological

injury." § 766.305(4), Fla. Stat.

11. If NICA determines that the injury alleged is a claim

that is a compensable birth - related neurological injury, it may

award compensation to the claimant, provided that the award is

approved by the Administrative Law Judge (ALJ) to whom the claim

has been assigned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claims, as here, the dispute must be

resolved by the assigned ALJ in accordance with the provisions of

chapter 120, Florida Statutes. §§ 766.304, 766.309, and 766.31,

Fla. Stat.

12. In discharging this responsibility, the ALJ is required

to make the following threshold determinations 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 brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physica lly 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

delivered by a participating physician in the

course of labor, delivery, or resu scitation

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

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospit al.

§ 766.309(1), 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 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

pe riod in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

14 . The evidence establishes that there was an apparent

obstetrical event that resulted in loss of oxygen to the babyÓs

brain during delivery an d continuing into the immediate post -

delivery period, resulting in an injury to KodaÓs brain. The

evidence further establishes that obstetrical services were

delivered by a participating physician , Dr. Meyers, in the course

of labor, delivery, or resuscit ation in the immediate post -

delivery period in a hospital , Halifax Medical Center. The

unrefuted evidence, however, establishes that Koda did not

sustain a permanent and substantial mental and physical

impairment. Thus, he did not sustain a birth - related

neurological injury a s defined in section 766.302(2) and,

therefore, is not eligible for benefits under the Plan.

CONCLUSION

Base on the foregoing Findings of Fact and Conclusions of

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

DON E AND ORDERED this 11 th day of September , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11 th day of September , 2018 .

COPIES FURNISHED:

(via certified mail)

Allison C. McMillen, Esquire

McM illen Law Firm, P.A.

608 East Central Boulevard

Orlando, Florida 32801

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2457)

A. Scott Noecker, Esquire

Morgan and Morgan, P.A.

16th Floor

20 North Orange Avenue

Orlando, Florida 32801

(Certified Mail Number 7018 0040 0000 9779 2464 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2471 )

Joseph M. Taraska, Esquire

Morgan & Morgan

16th Floor

20 North Orange Avenue

Orlando, Florida 32802

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2488 )

Jason O. Brown, Esquire

Cranshaw Brown

481 North U.S. Highway 1

Ormond Beach, Florida 32174

( eServed)

(Certified Mail Number 7018 0040 0000 9779 2495 )

Michael R. D`Lugo, Esquire

Wicker, Smith, O`Hara, McCoy, Ford, P.A.

390 North Orange Avenue , Suite 1000

Orlando, Florida 32802

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2501 )

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 9779 0019 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

40 52 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9779 0026 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 323 08

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0033 )

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 renditi on 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).