STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE LOWREY and JESSE

LOWREY as parents and natural guardians of OLIVIA LOWREY, a minor,

vs.

Petitioners,

Case No. 18-4150N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

FINAL ORDER

This case is before the assigned administrative law judge for consideration of the Opposed Motion for Summary Final Order (Motion) filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on February 19, 2019.

STATEMENT OF THE ISSUES

1. Whether Petitioners’ claim for compensation is time- barred pursuant to section 766.313, Florida Statutes.

2. Whether Olivia Lowrey (Olivia), the minor child, has suffered a birth-related neurological injury as defined in section 766.302(2), compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On June 22, 2019, Christine and Jesse Lowrey, as parents and natural guardians of Olivia Lowrey, filed a Petition for Benefits pursuant to section 766.301 et seq. (the Petition). The Petition alleged that Olivia was born at St. Joseph’s Women’s Hospital (St. Joseph’s) on November 23, 2010, and suffered brain damage as a result of a birth-related neurological injury. The Petition did not identify the attending physician. The identity of the physician, Lorraine Bevilacqua, M.D., was provided by letter dated July 30, 2018.

On August 10, 2018, a copy of the Petition was served by certified mail on NICA, Dr. Bevilacqua, and St. Joseph’s.

Certified mail receipts were received indicating that service was accomplished on all three.

NICA filed two requests for extensions of time to respond to the Petition, because of problems obtaining the medical records and because of the need for Olivia to be examined by NICA’s expert.1/ Both requests were granted. On December 20, 2018, NICA filed an Amended Response to Petition for Benefits, asserting that the claim was not compensable under the Plan, and requested a hearing on the issue of compensability. After receiving a response from the parties, a Notice of Hearing was issued on January 11, 2019, scheduling the hearing for March 5, 2019.

On February 19, 2019, NICA filed an Opposed Motion for Summary Final Order, arguing that the claim was time-barred and there was no birth-related neurological injury as defined in section 766.302(2). Petitioners did not respond within the time allowed under Florida Administrative Code Rule 28-106.204, so given the limited amount of time existing before the scheduled hearing, a telephone conference call was held February 28, 2019.

Christine Lowrey participated in the conference call on behalf of Petitioners. The hearing process was explained to her, as well as the need to file a response to the Motion.

Petitioner was given the option of going forward with the hearing, or responding to the Motion, and, if necessary, rescheduling the hearing after consideration of the Motion and Petitioners’ response. After lengthy discussion with the parties, the hearing scheduled for March 5, 2019, was canceled, and Petitioners were given until March 22, 2019, to respond to the Motion. Petitioners did so on March 13, 2019.

In their response, Petitioners explained their frustration with the inaccuracy of the medical records related to Olivia’s birth, which will be discussed more in the Findings of Fact below, and provided copies of some medical records related to Olivia as attachments to their response. After careful consideration of the issues discussed in the response, the undersigned has determined that while there may be disputes of

fact with respect to the circumstances of Olivia’s birth, there are not disputes of material fact so as to require a hearing in this case.

FINDINGS OF FACT

1. Olivia was born at St. Joseph’s on November 23, 2010.

   
   

   The attending physician was Lorraine Bevilacqua, M.D., who was, at the time, a participating physician with the NICA Plan.

   Olivia weighed 2,820 grams at birth, or 6 pounds, 3.5 ounces.

   
   

2. The medical records indicate that Ms. Lowrey was scheduled for a Cesarean section when she presented to the hospital in early labor. Medical staff prepped her for the Cesarean section upon arrival.

3. According to the operative note, the Cesarean section delivery was complicated by existing adhesions, and discovery of an asymptomatic uterine rupture. The infant, which was noted to be a “viable female with Apgars of 4 and 9,” was delivered with the assistance of vacuum suction, and “suctioned. The cord was doubly clamped and cut, and the infant was taken to the awaiting nursing staff where the infant was easily resuscitated and responded well.”

4. The Nurses Delivery Record indicates that at one minute, Olivia’s Apgar score2/ indicated she had an appropriate heart rate (2); slow, irregular respiratory effort (1); was limp (0); displayed a grimace (1); and was blue or pale in

   
   

   color (0), with a total score of four. At five minutes, her heart rate was fine (2); she exhibited a good cry in terms of respiration (2); had active motion (2); was crying (2), but still had blue extremities (1), for a total Apgar score of 9.

5. Dr. Willis reviewed all of the medical records, both those that were supplied as exhibits to the Motion and those that were not. He indicated in his report that prior to delivery, the fetal heart rate monitor did not suggest fetal distress. The newborn evaluation noted hemorrhage in the left eye and icterus (jaundice). Routine care was initiated, and the records indicate no neonatal complications. There was no seizure activity during the newborn hospital stay, and no EEG or head imaging studies were performed at that time.

6. Olivia’s parents assert that during delivery, the umbilical cord was wrapped around Olivia’s neck twice, despite the fact that the records do not mention this. They have attempted to get the hospital to correct the medical record with respect to this issue, but to no avail. Olivia’s parents are understandably distressed that the medical records do not reflect what they remember happening at Olivia’s birth, but what gave rise to the apparent discrepancies in the records is beyond the scope of this proceeding. Even if it is assumed, for the sake of this Order, that Mr. Lowrey witnessed the cord’s presence around Olivia’s neck, that event, without more, does

   
   

   not establish that the event led to a birth-related neurologic injury as that term is defined in section 766.302(2).

7. Dr. Willis also noted that a CT scan of the brain was performed when Olivia was approximately six months old, and was “essential [sic] normal, describing only benign macronania.” He also noted that there was no documented fetal distress prior to delivery, and the baby did not suffer multi-system organ failure, which, according to Dr. Willis, is a common finding with birth-related oxygen deprivation. He opined, and his opinion is credited, that there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period.

8. Petitioners did not provide the expert opinion of a medical professional to rebut Dr. Willis’s opinion.

9. Olivia is now approximately eight and a half years old.

   
   

   She has been diagnosed with ADHD, OCD, anxiety disorder, sleep disorder, and autism, and suffers from some sensory issues. The medical records indicate that she suffered mild developmental delays, and she has received therapy for a variety of concerns. However, the evidence does not demonstrate that as a result of a birth-related event, Olivia has suffered permanent and substantial physical and mental impairment.

   
   

10. The Petition simply alleged that Olivia Lowrey “suffered brain damage as a result of a difficult birth.” There is no mention of what type of impairment resulted.

11. NICA served Petitioners with interrogatories in response to their claim. Interrogatory number 7 asks: “Do you contend that OLIVIA LOWREY suffered mechanical injury during the course of labor, delivery or in the immediate post-delivery period? If so, please state whether you contend that such mechanical injury was suffered during labor, delivery, or in the immediate post-delivery period.” Petitioners answered, “My opinion is YES. We were never informed of mechanical vacuum assist during labor.” While the answer identifies a possible injury as occurring during labor, there is no indication provided (nor other evidence presented) to establish just what injury, if any, was caused by the use of the vacuum assist.

12. Interrogatory number 9 asks, “Do you contend that OLIVIA LOWREY suffers from a permanent and substantial mental impairment?” Petitioners answer states that as a baby, Olivia was diagnosed as developmentally delayed, and that after multiple tests, she “has the following mental impairments: Autism, ADHD, sleep disorder, developmentally delayed, macrocephaly, encephalopathy.”

13. Interrogatory number 11 asks, “Do you contend that OLIVIA LOWREY suffers from a permanent and substantial physical

    
    

    impairment? Petitioners’ response states, “[n]o, not physical -

    
    

    - mental, social, emotional, permanent and substantial deficits!”

14. Petitioners provided a letter from a psychiatrist who cares for Olivia. Jeffrey Alvaro, M.D., a board-certified child, adolescent, and adult psychiatrist at Johns Hopkins All Children’s Hospital, authored the letter dated November 2, 2018, apparently for the purpose of establishing an IEP (individual education plan) for Olivia. Dr. Alvaro states:

    Olivia is a patient under my care at the Pediatric Psychiatry Clinic at Johns Hopkins All Children’s Hospital. She has been diagnosed with Autism Spectrum Disorder, ADHD, and Unspecified Anxiety Disorder. She has significant problems with inattention, impulsivity, hyperactivity, social skills, and anxiety that directly impair her learning process. Her diagnosis of Autism has been confirmed by ADOS testing. Though she is gifted, her other symptoms still cause significant issues in the classroom.

    She would benefit from extra time with testing, preferential seating, extra time at lunch, and extra breaks from class— especially when she is anxious. Please consider any other accommodations that are appropriate to help her manage the above symptoms.

    
    

15. While Dr. Alvaro’s letter describes a litany of mental or cognitive impairments from which Olivia suffers, it does not describe any physical impairments, much less any physical impairments that rise to the level of being permanent and substantial.

    
    

16. Petitioners also supplied a psychological evaluation from the University of South Florida, based upon testing dates of February 27, May 29, and June 12, 2018. The psychological evaluation notes that Olivia is in good health with no major medical concerns.

17. It would have been helpful to have an opinion from either party as to whether Olivia’s issues rise to the level of a permanent and substantial mental and physical impairment. However, it appears from NICA’s pleadings that Olivia was scheduled for an evaluation, but did not appear for her appointment. The discovery responses received from Petitioners indicate that there is no physical impairment claimed. Petitioners have not provided an opinion from a physician (although they have provided records indicating a variety of medical appointments she has had) as to her current physical condition, or an opinion as to whether she suffers from permanent and substantial physical and mental impairments.

18. In sum, NICA’s Motion and the attached exhibits demonstrate that there is no birth-related neurological injury resulting in permanent and substantial mental and physical impairments. The information provided by Petitioners in response to the motion does not create a dispute of material fact with respect to this issue.

    
    

    CONCLUSIONS OF LAW

    
    

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

20. The Plan was established by the 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.

21. 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 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 the petition and to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury.

22. 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 the

    
    

    administrative law judge in accordance with chapter 120, Florida Statutes. §§ 766.304, 766.30, and 766.31, Fla. Stat.

23. The first inquiry in this case is whether Petitioners’ claim is time-barred. Section 766.313 provides that any claim for compensation under sections 766.301 through 766.316 that is filed “more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred.” Olivia was born November 23, 2010, and the Petition in this case was filed June 22, 2018, well past the five-year deadline.

24. Petitioners ask that, “[a]s it relates to statute of limitations, please consider “Tony’s Law,” enacted in Florida in 1996; officially known as Senate Bill 454, that will extend to age 8 the period in which a suit can be filed for malpractice on behalf of a child.”

25. Senate Bill 454 became chapter 96-167, Laws of Florida. It amends the statute of limitations for malpractice actions in section 95.11(4), Florida Statutes, to extend the deadline for filing actions brought on behalf of a minor. However, by its terms, the amendment does not apply to NICA claims. Section 95.11 provides in pertinent part:

    95.11 Limitations other than for the recovery of real property. – Actions other than for the recovery of real property shall be commenced as follows:

    
    

    * * *

    
    

    (4) WITHIN TWO YEARS.—

    
    

    * * *

    
    

    (b) An action for medical malpractice shall be commenced within 2 years from the time of the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. . . .

    This paragraph shall not apply to actions for which ss. 766.301-766.316 provide the exclusive remedy.

    
    

26. Sections 766.301 through 766.316 are the provisions governing NICA claims. Therefore, although section 95.11(4)(b) extends the statute of limitations for a civil action brought on Olivia’s behalf, and that limitation is tolled pursuant to section 766.306 while this claim has been pending at the Division, Petitioners’ claim for benefits under the NICA Plan is barred.

27. While Petitioners’ claim for NICA benefits is time- barred, it remains necessary, consistent with University of Miami

    v. Exposito ex rel. Gonzalez, 87 So. 3d 803 (Fla. 3d DCA 2012),

    
    

    to determine whether the claim presented is compensable under the Plan.

    
    

28. Given this requirement, the second inquiry is whether the infant has sustained a birth-related neurological injury as 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 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.

    
    

29. 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. The presumption requires evidence of both the injury and the mental and physical impairments as a result of that injury.

30. In this case, the evidence does not support a finding that Olivia suffered a birth-related neurological injury. While there is no mention of the umbilical cord being wrapped around

    
    

    Olivia’s neck at birth, the records that do exist do not negate that possibility, given the factors making up her Apgar scores. However, the records also do not indicate that she needed any care in the NICU, or any extraordinary measures. As noted by Dr. Willis, routine care was initiated, and Olivia suffered no neonatal complications or seizure activity during the course of her hospital stay. These findings are inconsistent with a determination that Olivia suffered a birth-related injury.

31. Moreover, in order to qualify as a birth-related neurological injury as contemplated under the Plan, there must be an injury that renders the child permanently and substantially mentally and physically impaired. The evidence

presented with, and in response to, the Motion do not support a finding that Olivia is both mentally and physically impaired, much less that any impairments she suffers rise to the level of permanent and substantial mental and physical impairment necessary to meet the requirements for compensability under the

Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Respondent’s Motion for Summary Final Order on the issue of a birth-related neurological injury is granted, and Petitioners’ claim is found and determined to be

time-barred, and is also determined not to be compensable. The Petition is dismissed with prejudice.

DONE AND ORDERED this 3rd day of April, 2019, 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 3rd day of April, 2019.

ENDNOTES

1/ An examination was scheduled for October 24, 2018, but apparently, Petitioners did not appear for the appointment. No explanation has been provided for the failure to appear.

2/ The numbers in parentheses are the points attributable to the Apgar score for that component of the overall score. Generally, each of five categories can be scored from zero to two.

COPIES FURNISHED:

(via certified mail)

Christine Lowrey Jesse Lowrey Apartment 232

300 4th Avenue South

St. Petersburg, Florida 33701

(Certified Mail No. 7016 0910 0001 7987 9108)

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 9139)

Mary C. Mayhew, Secretary

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7016 0910 0001 7987 9146)

St. Joseph’s Women’s Hospital Attention: Risk Management

3030 West Dr. Martin Luther King Jr. Boulevard Tampa, Florida 33607

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: 18-004150N

Orders for Case No: 18-004150N