STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FINAL ORDER

The final hearing in this matter was conducted before Andrew D. Manko, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569, 120.57(1), and 766.304, Florida Statutes,1 on July 9, 2020, via Zoom Conference.

APPEARANCES

For Petitioners: Linette Donald, pro se

Jeffery L. Donald, pro se 1814 Henley Street

Saint Cloud, Florida 34771

For Respondent: Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

1 All references to the Florida Statutes are to the 2017 version. The relevant provisions of chapter 766 have not been amended in any way material to this proceeding since 2017.

STATEMENT OF THE ISSUE

Whether Jaxon Donald suffered a “birth-related neurological injury” as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”).

PRELIMINARY STATEMENT

On November 12, 2019, Petitioners, Linette Donald and Jeffrey L. Donald, Jr., on behalf of and as parents and natural guardians of Jaxon Isaiah Donald (“Jaxon”), filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. with the Division of Administrative Hearings (“DOAH”), seeking compensation under the Plan because Jaxon suffered a birth-related neurological injury.

On November 27, 2020, DOAH sent copies of the Petition via Certified

U.S. Mail to Respondent, Florida Birth-Related Neurological Injury Compensation Association (“NICA”), Winnie Palmer Hospital a/k/a Orlando Health, Inc., the hospital at which Jaxon was born, and Natalie Munoz- Sievert, M.D., the obstetrician who delivered Jaxon.

On February 27, 2020, NICA filed its Response to Petition for Benefits.

NICA argued that Jaxon did not suffer a compensable birth-related neurological injury that rendered him permanently and substantially physically and mentally impaired. NICA supported its Response with reports from Donald Willis, M.D., an obstetrician, and Luis E. Bello-Espinosa, M.D., a pediatric neurologist who examined Jaxon.

On March 4, 2020, the undersigned issued an Order to Show Cause directing the parties to address the necessity of a final hearing and details for scheduling same, if necessary. On February 27, 2020, the parties filed a Joint

Response to Order to Show Cause in which Petitioners requested a hearing and NICA indicated that the case could be resolved by summary final order.

On March 24, 2020, the undersigned held a pre-hearing status conference.

Based on Petitioners’ contention that they had medical documentation to support the compensability of their claim, the undersigned gave them two weeks to provide same to NICA. The undersigned also gave NICA two weeks to review the documentation and either file a response indicating that a hearing is necessary to resolve a factual dispute or move for summary final order if it believed no factual dispute remained.

On April 15, 2020, NICA filed a Motion for Summary Final Order and argued that the facts were undisputed that Jaxon did not suffer a compensable injury based on the affidavits of Dr. Willis and Dr. Bello- Espinosa, which were attached to its motion. Petitioners responded in opposition, attaching a letter from Jaxon’s pediatrician, who opined that he suffered a compensable injury under the Plan, and an MRI report from Jaxon’s treating neurologist addressing his impairments.

On May 7, 2020, the undersigned held a teleconference on the Motion for Summary Final Order. After reviewing the record, including copies of all of Jaxon’s medical records that NICA filed, the undersigned denied the motion. Although the undersigned acknowledged that Petitioners may be unable to meet their burden of proving compensability on the merits, they submitted sufficient evidence (i.e., the letter from their treating pediatrician and the MRI report from their neurologist) to show that disputed issues of fact remain on their claim that warranted an evidentiary hearing.

The final hearing occurred on July 9, 2020. Petitioners presented the testimony of three witnesses, including Linette Donald and two of her sisters,

Amneris Perez and Yeismarie Rosado. NICA presented the testimony of its two experts, Dr. Willis and Dr. Bello-Espinosa, via deposition.

Joint Exhibit 1 (the medical records of Jaxon’s birth and subsequent care) was admitted into evidence. Petitioners’ Composite Exhibit 1 (a statement from Ms. Donald, ultrasound report, the letter from Jaxon’s treating pediatrician, and MRI report from Jaxon’s treating pediatric neurologist) was admitted into evidence over NICA’s hearsay objection. NICA’s Exhibits 1 (deposition of Dr. Willis) and 2 (deposition of Dr. Bello-Espinosa) were admitted into evidence.

A one-volume Transcript of the final hearing was filed on July 27, 2020. The undersigned granted the parties’ joint request to extend the deadline to file their proposed recommended orders (“PROs”) until August 12, 2020. The parties thereafter timely filed their PROs, which were duly considered in preparing this Recommended Order.

In making the findings below, the undersigned only considered hearsay evidence that either supplemented or explained other evidence or would be admissible over objection in civil actions. § 120.57(1)(c), Fla. Stat.

FINDINGS OF FACT

1. Linette Donald and Jeffrey L. Donald, Jr., are the parents and legal guardians of Jaxon.

2. On September 30, 2017, Ms. Donald gave birth to Jaxon, a single gestation of 38 weeks, at Winnie Palmer Hospital a/k/a Orlando Health, Inc. (“Hospital”).

3. Natalie Munoz-Sievert, M.D., provided obstetrical services and delivered Jaxon. It is undisputed that Dr. Munoz-Sievert was a participating physician in the Plan at the time of the delivery.

4. Jaxon’s delivery, a spontaneous vaginal birth at 38 weeks gestational labor, was not complicated. Jaxon weighed 3,288 grams, was vigorous, and needed no resuscitation. His APGAR scores, which are used to determine if a baby needs resuscitation and if there is a risk of oxygen deprivation, were normal—eight at one minute and nine at five minutes. Scores above seven are considered normal. Jaxon needed no resuscitation after birth.

5. Upon being transferred to the newborn nursery, Jaxon was clinically stable with no particular problems. The Hospital discharged Jaxon home in good condition with an uneventful newborn course at the Hospital.

6. In support of their claim, Petitioners presented the testimony of Ms. Donald and two of her sisters. Petitioners also introduced medical records, including letters from two of Jaxon’s treating physicians.

7. Ms. Donald testified about the labor, delivery, and Jaxon’s medical conditions. Although her prenatal records showed no particular signs of problems during her pregnancy, she explained why she believed Jaxon may have suffered a compensable birth-related neurological injury.

8. Ms. Donald went into labor the evening of September 29, 2017. She went to the Hospital the next morning around 5:00 a.m. She waited in the lobby and an adjacent restroom for almost seven hours because there were no rooms available. During that period of time, she was not hooked up to a fetal monitor. Around 11:58 p.m., the Hospital admitted her and hooked her up to a fetal monitor, which indicated no fetal distress or abnormality. Ms. Donald felt the need to push immediately and, according to her, the nurse held the baby in until the doctor arrived. Ms. Donald delivered Jaxon at 12:42 p.m.

9. Ms. Donald testified that Jaxon was blue after the delivery and that the Hospital placed him under a warmer. She said that the records indicated nasal flaring, which she believed showed respiratory distress. She testified that Jaxon was lethargic, sleepy, and had trouble feeding. Although she did not believe Jaxon was acting normal, the Hospital staff reassured her that he was fine. About 10 days after the delivery, she had to bring Jaxon back to the

   Hospital because he was not eating. Ultimately, Jaxon had a feeding tube inserted in August 2019.

10. Ms. Donald testified that Jaxon is currently behind developmentally, both physically and emotionally. At about 18 months old, Jaxon underwent an MRI that showed he suffered a hypoxic ischemic event or low oxygen event that affected his brain. She believes the event could have occurred while she labored in the emergency room prior to being admitted and that the Hospital missed it due to a lack of fetal monitoring during that time. Jaxon is in occupational and speech therapy, as he currently only says five words. He also does not regulate his emotions like a normal child.

11. Ms. Donald’s sisters, Ms. Perez and Ms. Rosado, also testified. Both were present at the Hospital and have spent time with Jaxon since his birth. They testified that Jaxon was lethargic at the Hospital, did not move much, and acted abnormally. Ms. Perez noted that Jaxon felt limp when she held him. Both stated that Jaxon is not where he should be developmentally. He has temper tantrums that last hours, cannot differentiate between yes and no, and says few words that only the family can understand. Neither sister believes Jaxon is where he should be developmentally at three years old.

12. Samer Khaznadar, M.D., Jaxon’s pediatrician, prepared a letter indicating that, based on the medical records, Jaxon qualified for NICA benefits because he was diagnosed with Erb’s Paralysis due to a birth injury, has used a feeding tube, was diagnosed with mild cerebral palsy, wears an AFO,2 and is delayed. Dr. Khaznadar did not testify at the hearing, however, so he never expounded upon the medical bases for his statements, whether an oxygen deprivation event may have occurred during labor, delivery, or the

    
    

    2 The record is silent as to the definition of an AFO. However, it appears to be an “ankle-foot orthosis” or brace “used to control instabilities in the lower limb by maintaining proper alignment and controlling motion. It is most often used with patients suffering from neurological or orthopedic conditions such as stroke, multiple sclerosis, cerebral palsy, fractures, sprains and arthritis.” Scheck & Siress, Plastic Ankle Foot Orthosis (AFO), available at https://www.scheckandsiress.com/patient-information/care-and-use-of-your- device/plastic-afo-ankle-foot-orthosis/ (last visited Sep. 4, 2020).

    immediate period thereafter, or whether Jaxon’s injuries constitute permanent and substantial mental and physical impairment.

13. Murtuza Kothawala, M.D., Jaxon’s neurologist, also prepared a letter. He initially evaluated Jaxon for left upper extremity weakness in May 2018. When Jaxon was 18 months old in March 2020, he underwent an MRI that showed significant abnormality in his brain. Jaxon was diagnosed with left hemiplegic cerebral palsy, decreased muscle tone, and developmental delay, which are suggestive of a hypoxic low oxygen ischemic injury that might have happened around the perinatal period. However, Dr. Kothawala noted that determining the exact timing of the injury was impossible based only on the MRI report. He also confirmed that the Hospital’s medical records indicated a normal delivery with normal APGAR scores.

14. Dr. Kothawala noted that Jaxon’s diagnoses impact him physically and interfere with his intellectual stamina as well as his ability to stay on task. He confirmed that accommodations would be needed so Jaxon could succeed academically. However, Dr. Kothawala did not opine that Jaxon suffers from permanent and substantial mental and physical impairment. He also did not testify at the hearing so as to explain the issues concerning the timing of the event that caused Jaxon’s injuries or whether they constitute permanent and substantial mental and physical impairment.

15. NICA presented the testimony of two medical experts—Dr. Willis, a board-certified obstetrician, and Dr. Luis-Espinosa, a children’s neurologist who conducted an independent medical examination (“IME”) of Jaxon.

16. After reviewing all of the medical records, Dr. Willis opined to a reasonable degree of medical certainty that Jaxon did not suffer an injury to the spinal cord or brain caused by oxygen deprivation during labor, delivery, or resuscitation in the immediate post-delivery period. Dr. Willis explained that the medical records indicated a normal, uncomplicated delivery and an uneventful newborn course at the Hospital. Jaxon’s fetal heart rate tracings were normal before and during the delivery, there was no indication of fetal

    distress during labor and delivery, his APGAR scores were normal, and he needed no resuscitation.

17. Dr. Willis acknowledged that the medical records showed that Jaxon had problems with decreased muscle strength in the left arm and that the MRI showed findings that could be related to an oxygen deprivation event and brain injury. He also recognized that the medical records indicated Jaxon suffered from Erb’s Palsy, i.e., an injury to the brachial plexus that commonly occurs when a baby’s neck is stretched during a difficult delivery, but stated both that such an injury is not an injury to the brain or spinal cord itself and that the medical records confirmed an uncomplicated delivery.

18. On cross examination, Petitioners asked whether the records could have missed an oxygen deprivation event while Ms. Donald was not hooked up to a fetal monitor before admission to the Hospital. Dr. Willis did not think so. He explained that, had such an oxygen deprivation event occurred that was sufficient to cause brain or spinal cord injury, the fetal distress would have been evident once the monitor was hooked up. Further, Jaxon’s other organ systems would likely have failed within a day or two of the delivery had such an event occurred, including seizures, respiratory distress requiring use of a ventilator, or renal failure. But, none of that occurred.

19. Petitioners also asked whether Jaxon’s symptoms at birth—i.e., appearing blue and pale, nasal flaring, sleepiness, being floppy or low muscle tone, and difficulty feeding—were signs of an oxygen deprivation event.

    Dr. Willis explained that being blue and pale at one minute is normal. However, he acknowledged that some of the other symptoms could be evidence of a minor degree of brain injury due to a lesser degree of oxygen deprivation. In that scenario, the baby would not have all of the multi-organ failures he previously described. Dr. Willis testified, however, that such an event, even if it happened, would be outside the realm of NICA because the injury is not significant enough.

20. Dr. Luis-Espinosa conducted an IME on Jaxon in December 2019. Based on his review of the medical records, the MRI report, and the IME, Dr. Luis-Espinosa opined to a reasonable degree of medical certainty that Jaxon most likely suffered a stroke in utero during the second or third

    trimester. Dr. Luis-Espinosa confirmed that the stroke caused Jaxon to suffer from cerebral palsy or spastic weakness in his left leg and arm. Dr. Luis- Espinosa did not believe that the stroke occurred during labor, delivery, or the immediate period thereafter because there were no clinical signs of stress during the delivery and Jaxon’s evolution post-birth was consistent with a normal, event-free birth.

21. Dr. Luis-Espinosa confirmed that the cerebral palsy from which Jaxon suffers constitutes a permanent and substantial physical impairment. However, Dr. Luis-Espinosa does not believe that the impairment was caused by oxygen deprivation or a mechanical injury to the brain or spinal cord.

22. Dr. Luis-Espinosa also opined to a reasonable degree of medical certainty that Jaxon does not suffer from a permanent and substantial mental impairment. During the IME, Dr. Luis-Espinosa found Jaxon to be cognitively behaving appropriately for his age.

23. On cross examination, Petitioners asked whether Jaxon could have suffered from oxygen deprivation based on his appearing blue at birth and nasal flaring. Dr. Luis-Espinosa testified that Jaxon would have suffered from multi-organ failures had an oxygen deprivation event occurred. And, because oxygen deprivation affects both sides of the brain, Dr. Luis-Espinosa explained that such an event would not typically cause an injury to only one side of the body, such as Jaxon’s left-sided weakness. Dr. Luis-Espinosa acknowledged that his opinion as to mental impairment was only based on Jaxon’s state at the time of the IME.

24. Based on the weight of the credible evidence, the evidence did not establish that Jaxon more likely than not suffered an injury to his brain or spinal cord due to oxygen deprivation or a mechanical injury during labor,

    delivery, or resuscitation in the immediate post-delivery period, which rendered him permanently and substantially physically and mentally impaired. The medical records indicated an uncomplicated delivery, normal APGAR scores, and no need for resuscitation. Dr. Willis and Dr. Luis- Espinosa opined to a reasonable degree of medical certainty that Jaxon did not suffer an oxygen deprivation event or one that occurred during labor, delivery, or the immediate period thereafter, but instead most likely suffered from a stroke in utero earlier in the pregnancy. They both offered specific, credible reasons to support those opinions. The letters from Jaxon’s treating physicians and Dr. Willis’s testimony on cross examination at best showed that a minor oxygen deprivation event could have occurred during the pre- admission period in the Hospital. However, that is insufficient to prove that such an event more likely than not occurred, particularly given the credible and unrebutted testimony of NICA’s two medical experts.

25. Although it is undisputed that Jaxon suffers from a permanent and substantial physical impairment, the weight of the credible evidence did not establish that he suffers from a permanent and substantial mental impairment or that any impairment was caused by oxygen deprivation or a mechanical injury occurring during the course of labor, delivery, or resuscitation in the immediate post-delivery period. Petitioners’ witnesses offered credible testimony that Jaxon appears to be delayed mentally, does not speak enough for a child who is almost three years old, and does not act accordingly for his age. However, that lay testimony is insufficient to rebut the credible and unrebutted testimony of Dr. Luis-Espinosa that Jaxon showed no signs of mental impairment during the IME and that his physical impairment did not appear to be caused by an oxygen deprivation event.

    
    

    CONCLUSIONS OF LAW

26. DOAH has jurisdiction over the parties and exclusive jurisdiction over the subject matter of this case. § 766.304, Fla. Stat.

27. The Legislature established the Plan “for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims” occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

28. 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 DOAH. §§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. NICA, which administers the Plan, has 45 days from the date that a complete claim is served 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.

29. If NICA determines that the infant suffered a compensable birth- related neurological injury, it may award compensation to the claimant(s), as approved by the assigned administrative law judge. § 766.305(7), Fla. Stat. But, if NICA disputes the claim, as it does here, the dispute must be resolved by an administrative law judge in accordance with chapter 120. §§ 766.304, 766.309, and 766.31, Fla. Stat.

30. In determining compensability, the administrative law judge must make the following determinations based upon the available evidence:

    1. Whether the injury claimed is a birth-related neurological injury.…

       
       

    2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post delivery 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 post delivery period in a hospital.

       
       

    3. How much compensation, if any, is awardable pursuant to s. 766.31.

       
       

    4. Whether, if raised by the claimant or other party, the factual determinations regarding the

       notice requirements in s. 766.316 are satisfied. The administrative law judge has the exclusive jurisdiction to make these factual determinations.

       
       

       § 766.309(1), Fla. Stat.

31. The term “birth-related neurological injury” is defined as follows:

    [I]njury 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 post delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

    
    

    § 766.302(2), Fla. Stat. Thus, a “birth-related neurological injury” has four components: “(1) an injury to the brain or spinal cord; (2) which is caused by oxygen deprivation or mechanical injury; (3) during labor, delivery, or resuscitation in the immediate post delivery period; and (4) which renders the infant permanently and substantially impaired.” Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 837 (Fla. 2011).

32. Petitioners, as the claimants seeking to prove compensability, have the burden to establish by a preponderance of the evidence “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.” § 766.309(1)(a), Fla. Stat.; see also § 120.57(1)(j), Fla. Stat. (providing that findings of fact, except in penal and licensure disciplinary proceedings or as provided by statute, “shall be based upon a preponderance of the evidence”); Balino v. Dep’t of H. R. S., 348 So. 2d 349, 350 (Fla. 1st DCA 1977) (holding generally that “the burden

    of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.”).

33. If the claimants meet their burden, section 766.309(1) provides that there is a rebuttable presumption that the injury is a birth-related neurological injury. Conversely, if the claimants do not meet their burden, the administrative law judge shall issue an order dismissing the petition. Id.

34. Based on the Findings of Fact above, Petitioners failed to establish by a preponderance of the evidence that Jaxon sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury that rendered Jaxon permanently and substantially mentally and physically impaired. Although Jaxon suffers from a permanent and substantial physical impairment, the weight of the credible evidence does not establish that Jaxon suffered an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury or that such an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the Hospital. Even if the evidence established such an injury, the weight of the credible evidence did not establish that it caused Jaxon to suffer from a permanent and substantial mental impairment. Accordingly, Jaxon is not eligible for benefits under the Plan.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law provided above, Petitioners’ claim is not compensable under the Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 10th day of September, 2020, in Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

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 10th day of September, 2020.

COPIES FURNISHED:

(via certified mail)

Linette Donald Jeffrey L. Donald, Jr. 1814 Henley Street

Saint Cloud, Florida 34771 (eServed)

(Certified No. 7019 2280 0001 7689 4347)

Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 2280 0001 7689 4354)

Tana D. Storey, Esquire Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301 (eServed)

(Certified No. 7019 2280 0001 7689 4331)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

(Certified No. 7019 2280 0001 7689 43778)

Mary C. Mayhew, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 2280 0001 7689 4385)

Natalie Munoz-Sievert, M.D. 83 West Miller Street Orlando, Florida 32806

(Certified No. 7019 2280 0001 7689 4392)

Winnie Palmer Hospital Attention: Risk Management 83 West Miller Street Orlando, Florida 32806

(Certified No. 7019 2280 0001 7689 4408)

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 agency clerk 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).

Docket for Case No: 19-006154N

Orders for Case No: 19-006154N