STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNETTE CATLIN AND DANIEL

CATLIN, individually and as parents and next friends of VICTOR CATLIN, a minor,

vs.

Petitioners,

Case No. 17-3816N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on April 18, 2018. Petitioners did not file a response.

STATEMENT OF THE CASE

On June 28, 2017, Petitioners filed a Petition for Determination of NICA Coverage (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition named Kristen Segall, M.D., as the physician who provided obstetric services

for the birth of Victor Catlin on December 10, 2013, at Florida Hospital Tampa in Tampa, Florida.

DOAH served NICA with a copy of the Petition on July 12, 2017, and Dr. Segall was served with a copy of the Petition on July 17, 2017. A review of the docket reveals that a copy of the Petition was sent via certified mail on July 11, 2017, to Florida Hospital Tampa. No parties intervened in this matter.

On November 2, 2017, NICA filed its Response to Petition for Benefits, suggesting that the subject claim was not compensable and requesting a final hearing to address said issue. On November 3, 2017, the undersigned issued an Order directing the parties to confer and advise whether a final hearing would be required. Ultimately, on March 30, 2018, NICA filed a Supplemental Status Report representing that counsel for Petitioners had conferred with NICA and that Petitioners “advised that a final hearing was not needed in this matter.”

On April 18, 2018, NICA filed a Motion for Summary Final Order, requesting that a summary final order be entered finding that the claim was not compensable because Victor Catlin did not sustain a “birth-related neurological injury” as that term is defined in section 766.302(2), Florida Statutes. As noted above, Petitioners did not file a response to the motion.

FINDINGS OF FACT

1. Victor Catlin was born on December 10, 2013, at Florida Hospital Tampa in Tampa, Florida.

2. NICA retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Victor Catlin’s medical records 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 post-delivery period due to oxygen deprivation or mechanical injury.

3. In a report dated July 27, 2017, Dr. Willis concluded the following:

   There appears to be a birth-related hypoxic injury that resulted in brain injury.

   However, the normal blood gas (pH 7.31) is difficult to understand in light of such low Apgar scores (1/2/5). If available, I would like to review the FHR monitor tracings during labor before submitting a final report.

   
   

4. On October 30, 2017, Dr. Willis amended his report. His amended conclusion is set forth, in full, below:

   The FHR monitor tracing was received and reviewed. The FHR shows a normal baseline rate of 130 bpm and normal variability.

   Overall, the FHR tracing does not suggest fetal distress during labor.

   
   

   There does not appear to be any significant oxygen deprivation during labor or delivery. This is based on FHR tracing which is reassuring and a normal umbilical cord blood gas. However, the newborn was severely depressed with low Apgar scores, need for resuscitation at birth and onset of seizures

   
   

   shortly after birth. Evolution of MRI scans would be consistent with oxygen deprivation and resulting brain injury, most likely occurring during the immediate post delivery period.

   
   

5. Attached to Respondent’s Motion for Summary Final Order is the affidavit of Dr. Willis, dated April 2, 2018. In his affidavit, Dr. Willis opines, based on his education, training, and experience, and within a reasonable degree of medical probability, that Victor Catlin sustained oxygen deprivation and resulting brain injury “most likely occurring during the immediate post delivery period.”

6. NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Victor Catlin’s 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 medical records, obtained a full historical account from Petitioners, and conducted an IME of Victor Catlin on September 6, 2017.

7. Dr. Sigurdardottir’s IME report provides, in part, as follows:

   Developmental history: Victor has mild/moderate delays in motor milestones and severe delays in language development and adaptive skills. He carries diagnosis of periventricular leukomalacia, microcephaly, cerebral palsy and autism. The patient is ambulatory at this time. Developmental

   
   

   milestones have been as follows: He was evaluated by Early Steps at age 2 months and qualified for physical therapy at that time. Feeding therapy was added at age 8 months and speech therapy at 18 months. He started walking at 17 months with assistance of PT.

   He has less than 10 words at this time and has approximately 10 signs. He has inconsistent response to voice and follows simple commands approx. 50% of the time. He has a fine motor quotient of 73 (at age 33 months of age), severe language delays at age 32 months of age (expressive language age equivalent 6-9 months and language comprehension age equivalent of

   6-9 months). . . .

   
   

   * * *

   
   

   Motor exam: Clumsy but otherwise normal gait, often on toes and has slight increase in resistance to dorsiflexion of ankles.

   Reflexes are symmetric increased in lower extremities as compared to upper. Full strength.

   
   

   * * *

   
   

   Balance and coordination: Clumsy, no obvious handedness, no tremors.

   
   

8. In summary, Dr. Sigurdardottir noted that, at the time of the IME, Victor Catlin had severe mental delays but mild to moderate motor delays.

9. Respondent’s Motion for Summary Final Order also relies upon the attached affidavit of Dr. Sigurdardottir, dated April 2, 2018. In her affidavit, she opines, based upon her education, training, and experience, and to a reasonable degree of medical probability, that Victor Catlin is permanently and substantially

   
   

   mentally impaired but he is not permanently and substantially physically impaired.

10. A review of the file reveals that no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.

    CONCLUSIONS OF LAW

    
    

11. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla.

    Stat.

    
    

12. 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.

13. 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.

14. NICA has determined that Petitioners do not have a claim that is compensable under the Plan and has filed a Motion

    
    

    for Summary Final Order, requesting that an order be entered finding that the claim is not compensable.

15. In ruling on the motion, 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).

       
       

       § 766.309(1), Fla. Stat.

       
       

16. 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.

    
    

17. The evidence, which is not refuted, established that there was an obstetrical event that resulted in loss of oxygen or mechanical trauma to Victor Catlin’s brain during the immediate

post-delivery period. The unrefuted evidence, however, established that Victor Catlin did not sustain a permanent and substantial mental and physical impairment. Specifically, the evidence established that Victor Catlin did not sustain a permanent and substantial physical impairment. Thus, he did not sustain a birth-related 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 the Petition is dismissed with prejudice.

DONE AND ORDERED this 9th day of May, 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 9th day of May, 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)

(Certified Mail Number 7018 0040 0000 9773 6567)

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A. Suite 900

444 Seabreeze Boulevard

Justin Senior, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

Florida Hospital Tampa Attention: Risk Management 3100 East Fletcher Avenue Tampa, Florida 33613

(Certified Mail Number 7018 0040 0000 9773 6628)

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: 17-003816N

Orders for Case No: 17-003816N