STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CIARRA MCBRYDE, INDIVIDUALLY AND AS NATURAL PARENT OF TATE HAGADONE, A MINOR,

vs.

Petitioner,

Case No. 20-0857N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent, and

MUNROE HMA HOSPITAL, LLC D/B/A MUNROE REGIONAL MEDICAL CENTER,

Intervenor.

/

SUMMARY FINAL ORDER

On June 5, 2020, Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a Motion for Partial Summary Final Order (Motion), asserting that the injury suffered by Tate Hagadone is not a birth-related neurological injury. Although titled as a “Motion for Partial Summary Final Order,” the Motion addresses the only issues to be considered in this proceeding. The Motion relies upon the affidavit of Dr. Donald Willis, M.D., and supporting medical records. While it does not state that NICA conferred with Petitioner or state Petitioner’s position with respect to the Motion, NICA’s Response to the Order of May 21, 2020, indicated that the parties were in agreement that the injury is not compensable, and Petitioner has not filed a response in opposition to the Motion.

STATEMENT OF THE ISSUE

The issue for consideration is whether Tate Hagadone has suffered a birth-related neurological injury as that term is defined in section 766.302(2), Florida Statutes (2016), compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On February 15, 2020, Ciarra McBryde, individually and as the natural parent of Tate Hagadone (Tate), filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (the Petition). The Petition identified Dr. Seaborn M. Hunt, Jr., M.D., as the physician providing obstetrical services, and AdventHealth, f/k/a Munroe Regional Medical Center (Munroe Regional), as the hospital where Tate was born. On February 18, 2020, NICA, Dr. Hunt, and Munroe Regional were served with copies of the Petition by certified mail. Certified return mail receipts indicate that all three were served.

On April 6, 2020, Munroe Regional sought leave to intervene in the proceedings, and its motion was granted by Order dated April 16, 2020. On May 15, 2020, NICA filed a Notice of Non-Compensability and Request for Evidentiary Hearing on Compensability. In response, on May 21, 2020, an Order was issued requesting the parties to provide a response regarding the need for a hearing, if any, and if so, an estimate of how long the hearing would take, dates for conducting the hearing, and the parties’ choice of venue. On June 3, 2020, NICA responded, advising that the parties had conferred and agreed that the claim is non-compensable, and that a hearing would not be required. On June 5, 2020, the Motion for Partial Summary Final Order was filed. The time for filing a response in opposition has passed. All statutory references are to the 2016 codification unless otherwise specified.

FINDINGS OF FACT

1. Tate was born on September 18, 2016, at Munroe Regional. He was a child born of single gestation.

2. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA has submitted his expert report dated March 3, 2020, and his affidavit dated June 2, 2020, as Exhibit 1 in support of its Motion.

3. Dr. Willis’s report contains the following summary:

   
   

   The mother was admitted to the hospital at 41 weeks gestational age with contractions. The fetal heart rate (FHR) monitor tracing during labor was available for review. Baseline FHR was normal a[t] 130 bpm with good variability on admission. The tracing remained reassuring during labor.

   
   

   Spontaneous vaginal delivery was stated to be uneventful. Birth weight was 3,870 grams. Apgar scores were 8/9. The newborn hospital course was uncomplicated. Newborn out-patient evaluation at 4 days was reported as normal.

   
   

   Large head size was noted several months after birth. Imaging studies identified a benign intracranial tumor, choroid plexus papilloma, which was resected at about 6-months of age. VP shunt placement for hydrocephaly was complicated by infection and required removal and subsequent replacement.

   
   

   In summary, the FHR tracing monitor during labor did not suggest fetal distress. The baby was not depressed at birth with Apgar scores of 8/9. Newborn hospital course was uncomplicated. Brain injury may have occurred several months after delivery, related to the choroid plexus papilloma, but this would not be birth related.

   
   

   There is no apparent oxygen deprivation and or mechanical trauma to the brain or spinal cord during labor, delivery or the immediate post- delivery period.

   
   

4. Dr. Willis’s affidavit simply references his report, confirms that his opinions contained in the affidavit are within a reasonable degree of medical certainty, and opines that there was no apparent oxygen deprivation and or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. Dr. Willis’s unrebutted opinion is credited.

5. NICA also arranged for Tate to be examined by Dr. Raj D. Sheth, M.D., a pediatric neurologist. His report dated May 14, 2020, and his affidavit dated June 3, 2020, are Exhibit 2 in support of NICA’s Motion. Dr. Sheth’s report relates in part that when Tate was approximately four months old, he was diagnosed with having a benign brain tumor, specifically, a non- malignant choroid plexus neoplasm, which required surgery and placement of a shunt.

6. Dr. Sheth opined that while Tate has some neurological impairments, they do not appear to have resulted from a deprivation of oxygen or a mechanical injury to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. Dr. Sheth further opined, within a reasonable degree of medical certainty, that Tate would not meet the criteria for compensation in the NICA program. His opinion is consistent with the opinion of Dr. Willis, is unrebutted, and is credited.

7. Based on the evidence presented in support of the Motion, Tate is not eligible for compensation under the Plan because the evidence does not indicate that Tate’s impairments are caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

   
   

8. Petitioner has not presented any evidence in response to the Motion to rebut the opinions of Dr. Willis and Dr. Sheth as detailed in their affidavits and expert reports.

   
   

   CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla. Stat.

10. The Plan was established by the Florida Legislature “for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims” related to births occurring on or after January 1, 1989.

    § 766.303(1), Fla. Stat.

11. An injured child, his or her personal representative, parents, dependents, or 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 file a response to a petition, and to submit relevant written information relating to whether the alleged injury is a birth-related neurological injury.

12. If NICA determines that the alleged injury is a birth-related neurological injury that is compensable 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 resolved by an administrative law judge in accordance with chapter 120, Florida Statutes.

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

13. A birth-related neurological injury is defined by section 766.302(2), which provides:

    
    

    (2) “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 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, deliver, or resuscitation in the immediate postdelivery 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.

    
    

14. If the administrative law judge determines that the infant has sustained a brain or spinal cord injury caused 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- related neurological injury.

15. In this case, while there is evidence of physical impairment, there was no evidence that the impairment was caused by an obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period.

CONCLUSION

Based on the Findings of Fact and Conclusions of Law above, Petitioner’s claim is not compensable under the Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 23rd day of June, 2020, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 23rd day of June, 2020.

COPIES FURNISHED:

(via certified mail)

Brian C. Guppenberger, Esquire Colling, Gilbert, Wright & Carter, LLC Suite 830

801 North Orange Avenue Orlando, Florida 32801 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9099)

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

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9105)

David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest 6th Court Plantation, Florida 33324 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9112)

David O. Doyle, Jr., Esquire Pearson Doyle Mohre & Pastis, LLP Suite 401

485 North Keller Road Orlando, Florida 32751 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9129)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7015 0640 0001 2706 9136)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9143)

Seaborn M. Hunt, Jr., M.D. No. 703

150 Southeast 17th Street Ocala, Florida 34471

(Certified Mail No. 7015 0640 0001 2706 9150)

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: 20-000857N

Orders for Case No: 20-000857N