18-004147N Maria Jose Morales Cannon, The Mother, And David Cannon, The Father, On Behalf Of And As Parents And Natural Guardians Of Michael Cannon, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 10, 2019.

Summary: The infant did not sustain a birth-related neurological injury, and, therefore, Petitioner is not entitled to compensation under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA JOSE MORALES CANNON, the

mother, and DAVID CANNON, the

father, on behalf of and as

parents and natural guardians of

MICHAEL CANNON, a minor,

Petitioners,

vs. Case No. 18 - 4147N

FLORIDA BIRTH - RELATED

NEUROL OGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon RespondentÓs

Motion for Partial Summary Final Order, filed N ovember 30,

2018. 1/ Petitioners did not file a response to the motion.

STATEMENT OF THE CASE

On July 23, 2018, Petitioners filed a Petition for Benefits

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

with the Division of Administrative He arings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition

named Makbib Diro, M.D., as the physician who provided obstetric

services at the birth of Michael Cannon (Michae l) on June 27,

2017, at Jackson Memorial Hospital in Miami, Florida.

On August 10, 2018, DOAH mailed a copy of the Petition to

Respondent, Dr. Diro, and Jackson Memorial Hospital by certified

mail. Respondent was served with the Petition on August 14,

2 018.

On November 21, 2018, Respondent filed its Response to

Petition for Benefits, suggesting that the subject claim was not

compensable, and requesting a hearing to address such issue. On

November 26, 2018, the undersigned issued an Order Requiring

Res ponse, wherein the parties were ordered to confer and advise

the undersigned as to the need for a final hearing.

On November 30, 2018, Respondent filed the instant Motion

for Partial Summary Final Order. On December 5, 2018,

Respondent filed its Response to Order of November 26, 2018,

advising that it had conferred with Petitioners, and that

Petitioners request a hearing. Petitioners, who are represented

by counsel, did not file a response to RespondentÓs Motion for

Partial Summary Final Order.

FINDINGS OF FACT

1. Michael was born on June 27, 2014, at Jackson Memorial

Hospital. Michael was a twin, a multiple gestation, weighing

over 2,000 grams at birth.

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

obstetrician specializing in maternal - fetal medic ine, to review

the medical records of Michael and his mother, Petitioner Maria

Jose Morales Cannon, 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 po stdelivery

period due to oxygen deprivation or mechanical injury. In his

report, dated September 10, 2018, Dr. Willis set forth the

following, in pertinent part:

The mother was admitted to the hospital at

about 32 weeks gestational age for steroids

to en hance fetal lung maturity and

intravenous MgSO4 as neuroprotection to help

reduce the risk for intracranial bleed. Her

cervix was dilated one centimeter, 20%

effaced and posterior, consistent with an

unlabored cervix. Primary Cesarean section

was done at 32 weeks as pre management plan

for TTTS. [2/] Biophysical profiles (BPP) were

8/8 for both fetuses prior to delivery,

indicating neither fetus was in distress.

Fetal heart rate tracing was stated to be

reactive, again suggesting no distress prior

to del ivery.

Michael Cannon was the larger of the twins,

designated as twin A. Cesarean delivery was

apparently uncomplicated. Birth weight was

2,090 grams. The baby was not depressed at

birth. Apgar scores were 9/9/9.

Essentially no resuscitation was requ ired

with only tactile stimulation and oral

suctioning done after birth.

* * *

In summary, this child was born as twin A at

32 weeks gestational age. Delivery was by

elective Cesarean selection. Birth weight

was 2,090 grams. The mother was not in

lab or. Delivery was uncomplicated. The

baby was not depressed at birth. Apgar

scores were 9/9. No resuscitation was

required. The initial platelet count was

decreased at 96,000. However, Intracranial

hemorrhage would be unlikely with this

platelet count . Head ultrasound and MRI

were consistent with periventricular

leukomalacia. Brain injury was most likely

related to prematurity and not oxygen

deprivation or trauma at birth.

There was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

trauma during labor, delivery or the

immediate post - delivery period. Brain

injury identified by head Ultrasound and MRI

was more likely related to prematurity and

not oxygen deprivation at birth.

3. In his affidavit, dated November 30, 2018, Dr. Willis

affirms, to a reasonable degree of medical probability, the

above - quoted findings and opinions from his report.

4. Respondent also retained Michael S. Duchowny, M.D., a

pediatric neurologist, to review the pertinent medical rec ords,

conduct an Independent Medical Examination (IME) of Michael, and

opine as to whether Michael suffers from a permanent and

substantial mental and physical impairment as a result of a

birth - related neurological injury. Dr. Duchowny reviewed the

medica l records, obtained historical information from MichaelÓs

mother and aunt, and performed an IME on November 14, 2018.

5. RespondentÓs Motion for Partial Summary Final Order

also relies upon the attached affidavit from Dr. Duchowny, dated

November 2 8, 2018. In his affidavit, Dr. Duchowny testifies, in

pertinent part, as follows:

In summary, MICHAELÓs examination reveals

neurological findings consistent with

spastic diparetic cerebral palsy. He

evidences dysarthic speech and refractory

strabismus. Impairment primarily affecting

his right upper extremity. In contrast,

Michael has preserved cognitive function and

social awareness.

Review of MICHAELÓs medical records reveals

that his motherÓs twin pregnancy was

complicated by intrauterine growth

re tardation and polyhdramnious. Corner over

absent diastolic blood flow in MICHAELÓs

twin brother prompted decision to deliver

both twins at 32 weeks gestation. MICHAELÓs

APGAR scores were 9, 9, and 9 at 1, 5

and 10 minutes. MICHAEL remained in the

Jacks on Memorial Hospital NICU for 28 days

and was treated for apnea of prematurity and

retinopathy of prematurity. Hyperechoic

periventricular regions were noted on head

ultrasound studies in the NICU, and a

follow - up MR imaging study on January 7,

2015, reve aled findings compatible with

periventricular leukomalacia.

Although MICHAEL has a substantial motor

impairment, he is not currently evidencing a

substantial cognitive impairment. I further

believe that his neurological deficits are a

consequence of pre maturity and not acquired

in the course of labor and delivery. I am

therefore not recommending MICHAEL for

consideration by the NICA program.

6. In his affidavit, Dr. Duchowny testifies that his

opinions are to a reasonable degree of medical probab ility. A

review of the file reveals that no contrary evidence was

presented to dispute the findings and opinions of Drs. Willis

and Duchowny. Their opinions are credited.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties to and the

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

Fla. Stat.

8. The Plan 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.

9. 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. 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 in jury is a birth - related

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

10. If Respondent 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, Respondent 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.

1 1 . In its present posture, the ALJ is required to make

the following threshold determination based upon the available

evidence:

(a) Whether the injury claimed i s 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 physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neuro logical injury as defined in

s. 766.303(2).

§ 766.309(1), Fla. Stat. An award may be susta ined only if the

ALJ concludes that the Ðinfant has sustained a birth - related

neurological injury . . . .Ñ £ 766.31(1), Fla. Stat.

1 2 . The term "birth - related neurological injury" is

defined in section 766.302(2) as follows:

"Birth - related neurologica l 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 mechanica l 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.

1 3 . The undisputed evidence establishe s that there was not

an injury to MichaelÓs brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in a hospital. To the contrary, the unrefu ted evidence

establishes that his injury and deficits were a consequence of

prematurity.

1 4 . The undisputed evidence further establishes that

Michael did not sustain a permanent and substantial mental

impairment. Thus, he did not sustain a birth - r elated

neurological injury as defined in section 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 RespondentÓs Motion for Partial Summary

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

is granted, and PetitionersÓ claim is found and determined to

not be compensable. The Petition is dismissed with prejudice.

DONE AND ORDERED this 10th day of January , 2019 , 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 F iling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of January , 2019 .

ENDNOTE S

1/ Although styled as a Motion for Partial Summary Final Order,

the undersignedÓs determination that Pet itionerÓs claim is not

compensable is a Final Order subject to appeal pursuant to

s ection 766.311, Florida Statutes.

2/ Twin - twin transfusion syndrome.

COPIES FURNISHED:

(via certified mail)

Jane W. Muir, Esquire

J. Muir & Associates, P.A.

2601 Bisc ayne Boulevard

Miami, Florida 33137

(Certified Mail No. 7012 1640 0000 7869 7648)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(e Served)

(Certified Mail No. 7012 1640 0000 7869 7655)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7012 1640 0000 7869 7662)

David W. Black, Esquire

Frank, Weinb erg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7012 1640 0000 7869 7679)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florid a 32399 - 3275

(Certified Mail No. 7012 1640 0000 7869 7686)

Mary Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7869 7 723 )

Makb ib Diro, M.D.

1150 Northwest 14th Street

Miami, Florida 33136

(Certified Mail No. 7012 1640 0000 7869 7 709 )

Jackson Memorial Hospital

Attention: Risk Management

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 7012 1640 0000 7869 7716)

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 n otice of a dministrative

a ppeal 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).