STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MS. ARIA SAULSBERRY, AS PARENT AND NATURAL GUARDIAN OF PRINCESS IRIA SMITH, A MINOR, Petitioner, vs. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Respondent. / | Case No. 19-5474N |
SUMMARY FINAL ORDER OF DISMISSAL
This matter came before the undersigned on Respondent’s Motion for Summary Final Order, filed August 28, 2020. Petitioner did not file a response.
STATEMENT OF THE CASE
On October 4, 2019, Petitioner, Aria Saulsberry, as parent and natural guardian of Princess Iria Smith (Princess), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 776.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH), for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition named Desmond Thomas, M.D., as the physician who provided obstetric services for the birth of Princess at St. Mary’s Medical Center, in West Palm Beach, Florida, on April 27, 2018.
On October 21, 2019, DOAH mailed a copy of the Petition to Respondent and to Dr. Thomas, and St. Mary’s Medical Center via certified mail.
Respondent was served with the same on October 22, 2019.
After granting six extensions of time to respond to the Petition, on August 28, 2020, Respondent filed a Motion for Summary Final Order (Respondent’s Motion), requesting that a summary final order be entered finding that the claim is not compensable because Princess did not sustain a “birth-related neurological injury,” as defined by section 766.302(2), Florida Statutes. Petitioner did not file a response to Respondent’s Motion. On September 9, 2020, an Order to Show Cause was issued directing Petitioner to show cause in writing as to why Respondent’s Motion should not be granted. Petitioner did not respond to the Order to Show Cause.
In response to the undersigned’s October 2, 2020, Order Requiring Response, on October 6, 2020, Respondent filed an affidavit and report from Donald C. Willis, M.D., in support of Respondent’s Motion. Petitioner has not responded to Respondent’s Motion.
FINDINGS OF FACT
Princess was born on April 27, 2018, at St. Mary’s Medical Center in West Palm Beach, Florida.
Princess was a single gestation and her weight at birth exceeded 2500 grams.
As set forth in greater detail below, the unrefuted evidence establishes that Princess did not sustain a “birth-related neurological injury,” as defined by section 766.302(2).
Donald Willis, M.D., a board certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Saulsberry and Princess and opine as to whether
Princess sustained an injury to her brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.
On November 22, 2019, Dr. Willis authored a report that included his findings and opinions. The report provides, in pertinent part, as follows:
I have reviewed the medical records, pages 1-1,361, regarding [Princess Smith]. The mother was a 30 year old G4 P3003 with “scant” prenatal care. Medical history was positive [f]or Hypertension, Gestational Diabetes and a drug screen positive for THC. Two prior deliveries were by Cesarean section.
She presented to the hospital at 38 6/7 weeks gestational age with uterine contractions and bleeding. Cervical dilation was 3 cm at 70% effaced. Placenta abruption was suspected and repeat Cesarean section was done. Operative not [sic] describes presence of blood clots in the uterine cavity, consistent with placental abruption. Birth weight was 3,095 grams.
The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required. Newborn hospital course was benign. The baby was breastfeeding shortly after birth.
The child was in Foster Care at some point after birth. Physical Therapy appointments were made for uncoordinated movement, avoiding movement on the left side. At 7-months of age, Developmental delay was noted.
In summary, the mother presented at term with placental abruption in labor. Repeat Cesarean section resulted in delivery of a newborn with Apgar scores of 9/9. No resuscitation was required after birth. Newborn hospital course was benign.
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 post-delivery period.
In his affidavit dated October 2, 2020, Dr. Willis affirmed that the statements and opinions contained in the above-quoted report were true and correct and all within a reasonable degree of medical probability.
The undisputed findings and opinions of Dr. Willis are credited. The undersigned finds that Princess did not sustain an injury to the brain or spinal cord 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 rendered her permanently and substantially mentally and physically impaired.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla. Stat.
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.
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. Respondent, 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.
If Respondent determines that the injury alleged is a claim that 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 (ALJ) to whom the claim has been assigned. § 766.305(7), Fla. Stat. If, on the other hand, compensability is disputed, the dispute must be resolved by the assigned ALJ in accordance with the provisions of chapter 120, Florida Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.
In discharging this responsibility, the ALJ is required to make the following threshold determinations based upon the available evidence:
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.
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.
If the ALJ determines that the injury is not a birth-related neurological injury, or that obstetrical services were not delivered by a participating physician at birth, he or she is required to enter an order and immediately provide a copy to the parties. § 766.309(2), Fla. Stat.
The undisputed evidence establishes that there was not an injury to Princess’s brain 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. Thus, she did not sustain a compensable birth- related neurological injury, as defined in section 766.302(2), and, therefore, is not eligible for benefits under the Plan.
CONCLUSION
Based on the Findings of Fact and the Conclusions of Law, it is ORDERED that Respondent’s Motion is granted and the Petition is dismissed with prejudice.
DONE AND ORDERED this 30th day of October, 2020, 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 30th day of October 2020.
COPIES FURNISHED:
(via certified mail)
Aria Saulsberry Apartment C104
1555 Dr. Martin Luther King Jr. Boulevard Riviera Beach, Florida 33404
(Certified No. 7019 2280 0001 7689 4873)
Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association Suite 1
2360 Christopher Place
Tallahassee, Florida 32308 (eServed)
(Certified No. 7019 2280 0000 5623 6724)
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 4880)
Shevaun L. Harris, Acting Secretary Health Quality Assurance
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1
Tallahassee, Florida 32308
(Certified No. 7019 2280 0001 7689 4897)
Desmond Thomas, M.D. Suite 303
927 45th Street
West Palm Beach, Florida 33407 (Certified No. 7019 2280 0001 7689 4903)
St. Mary’s Medical Center Attention: Risk Management 901 45th Street
West Palm Beach, Florida 33407 (Certified No.7019 2280 0001 7689 4910)
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).
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 30, 2020 | DOAH Final Order | Summary final order of dismissal entered wherein it was determined minor infant had not sustained a birth-related neurological injury, and, therefore, claim was not compensable under the plan. |
