STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA MCFARLANE-BODDIE, on

behalf of and as parent and natural guardian of AJANI BUCHANAN, a minor,

vs.

Petitioner,

Case No. 17-2988N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon an Amended Motion for Summary Final Order filed on December 4, 2017, by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA). Petitioner did not file a response to the motion, and accordingly, on December 29, 2017, the undersigned entered an Order to Show Cause, directing Petitioner to show cause within 10 days as to why the motion should not be granted. No response to the Order to Show Cause has been filed as of the date of this Order.

STATEMENT OF THE CASE

On April 24, 2017, Petitioner, Melissa McFarlane-Boddie, on behalf of and as parent and natural guardian of Ajani Buchanan

(Ajani), a minor, filed a Petition Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). The Petition did not name the physician who provided obstetric services at the birth of Ajani on March 18, 2012, at Memorial Regional Hospital (Memorial) in Hollywood, Florida. However, by letter filed on May 17, 2017, Petitioner identified the physician as Wayne McCreath, M.D.

(Dr. McCreath).

DOAH served NICA, Memorial, and Dr. McCreath with a copy of the Petition on May 23, 2017.

On November 29, 2017, NICA filed a Motion for Summary Final Order on the issue of a birth-related neurological injury. On December 4, 2017, NICA filed an Amended Motion for Summary Final Order in which it withdrew its assertion that the subject claim is barred by the statute of limitations. Through its amended motion, NICA requested the entry of a summary final order determining that the claim is not compensable under the Plan as a matter of law, and denying the Petition for Benefits, with prejudice.

STATEMENT OF THE ISSUE

The issue in this case is whether Ajani Buchanan suffered a birth-related injury as defined by section 766.302(2), Florida

Statutes, for which compensation should be awarded under the

Plan.

FINDINGS OF FACT

1. Ajani Buchanan was born on March 18, 2012, at Memorial Regional Hospital in Hollywood, Florida. Ajani weighed in excess of 2,500 grams at birth. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Memorial provided to NICA.

2. At all times material, both Memorial and Dr. McCreath were active members under NICA pursuant to section 766.302(6) and (7).

3. Ajani was delivered by Dr. McCreath, who was a NICA- participating physician, on March 18, 2012.

4. Petitioner contends that Ajani suffered a birth-related neurological injury and seeks compensation under the Plan. Respondent contends that Ajani has not suffered a birth-related neurological injury as defined by section 766.302(2).

5. In order for a claim to be compensable under the Plan, certain statutory requisites must be met. Section 766.309

   provides:

   
   

   1. The Administrative Law Judge shall make the following determinations based upon all available evidence:

      
      

      1. 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 physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in

         § 766.302(2).

         
         

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

         
         

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

         
         

   2. If the Administrative Law Judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, she or he shall enter an order . . . .

      
      

   3. The term “birth-related neurological injury” is defined in Section 766.302(2), Florida Statutes, as:

   
   

   . . . 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 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. (Emphasis added).

   
   

6. In the instant case, NICA has retained Donald C. Willis, M.D. (Dr. Willis), as its medical expert specializing in maternal-fetal medicine and pediatric neurology. Upon examination of the pertinent medical records, Dr. Willis opined:

   Based on available medical records, there does not appear to be a birth related hypoxic injury. The newborn hospital records confirm that there was no oxygen deprivation to the baby during labor, delivery or the immediate post delivery period.

   
   

   Dr. Willis’ medical report is attached to his Affidavit. His Affidavit reflects his ultimate opinion that “there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period.”

7. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Ajani did not suffer an obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or the immediate post-delivery period is credited.

   
   

8. In the instant case, NICA has retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), as its medical expert in pediatric neurology. Upon examination of the child and the pertinent medical records, Dr. Sigurdardottir opined:

   Ajani is a 5-year-old boy with history of an autistic regression at age 18 months and no obvious perinatal injury that can be identified.

   
   

   Result as to question 1 [Does the child suffer from a permanent and substantial mental and physical impairment?]: Ajani is found to have substantial delays in mental abilities with non-verbal moderate to severe autism. His motor capabilities are grossly within normal limits.

   
   

   Result as to question 2 [If so, is such an impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury? If so, is injury felt to be labor and birth related?]: In review of available documents, there is no evidence of an incident during labor or delivery consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury.

   
   

   Result as to question 3 [What is the prognosis and estimate of life expectancy?]: The prognosis for full motor recovery is excellent and prognosis for mental recovery is poor. The life expectancy is normal.

   
   

   In light of evidence presented I believe Ajani does not fulfill criteria of a substantial mental and physical impairment to be included in the NICA program. . . .

   
   

   Dr. Sigurdardottir’s medical report is attached to her Affidavit. Her Affidavit reflects her ultimate opinion that

   
   

   “the IME and record review do not support a finding that Ajani suffered a ‘birth-related neurological injury.’”

9. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Sigurdardottir. The opinion of

   Dr. Sigurdardottir that Ajani did not suffer a substantial mental or physical impairment acquired in the course of labor or delivery is credited.

   CONCLUSIONS OF LAW

   
   

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

11. 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.

12. 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 injury is a birth-related neurological injury." § 766.305(4), Fla. Stat.

13. If NICA determines that the injury alleged in a claim 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 to whom the claim has been assigned. § 766.305(7), Fla. Stat. The Administrative Law Judge must make the following determination based upon the available evidence:

    1. 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 physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in

       s. 766.303(2).

       
       

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

       
       

       § 766.309(1), Fla. Stat. An award may be sustained only if the Administrative Law Judge concludes that the "infant has

       
       

       sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." § 766.31(1), Fla. Stat.

14. 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 period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.

    
    

15. In the instant case, Petitioner filed a claim alleging that Ajani did sustain a birth-related neurological injury that is compensable under the Plan. As the proponent of the issue of compensability, the burden of proof is upon Petitioner.

    § 766.309(1)(a), Fla. Stat.; see also Balino v. Dep't of HRS,

    
    

    348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.").

16. Dr. Willis' opinion that "[t]here was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord during labor, delivery, or resuscitation in the immediate postdelivery period"

    
    

    and Dr. Sigurdardottir's opinion that “the IME and record review do not support a finding that Ajani suffered a birth-related neurological injury” are credited.

17. In order for a birth-related injury to be compensable under the Plan, the injury must meet the definition of a birth- related neurological injury and the injury must have caused both permanent and substantial mental and physical impairment. Fla.

    Birth-Related Neurological Injury Comp. Ass'n v. Div. of Admin.

    
    

    Hearings, 686 So. 2d 1349 (Fla. 1997).

    
    

18. The evidence in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Drs. Willis and Sigurdardottir that Ajani does not have a permanent substantial mental or motor impairment acquired in the course of labor or delivery. Thus, Ajani has not suffered a birth-related neurological injury as defined by section 766.302(2), and is therefore not entitled to benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed by Petitioner, Melissa McFarlane-Boddie, on behalf of and as parent and natural guardian of Ajani Buchanan, is dismissed with prejudice.

DONE AND ORDERED this 28th day of February, 2018, in Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS 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 28th day of February, 2018.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7016 0910 0001 7987 6923)

Justin Senior, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

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: 17-002988N

Orders for Case No: 17-002988N