STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (“NICA”), on June 11, 2020.

STATEMENT OF THE CASE

On July 31, 2019, Nicolasa Villa Guadalupe and Arturo Abundis Pablo, on behalf of and as parents and natural guardians of Bryan Arturo Abundis Villa (“Bryan”), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (the “Petition”) with the Division of Administrative Hearings (“DOAH”) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (the “Plan”).1

1 Petitioners did not submit all the information or the filing fee required for a complete NICA claim under section 766.305 until October 24, 2019.

The Petition identified James Palmer, M.D., Peeraya Sawangkum, M.D., Adetola Fadeyini Louis-Jacques, M.D., Elizabeth Ann Hoover, M.D., and Christina Jean Carter, M.D., as the physicians who provided obstetrical services at Bryan’s birth on July 23, 2018, at Tampa General Hospital (“Tampa Hospital”) in Tampa, Florida.

DOAH served Dr. Palmer, Dr. Sawangkum, Dr. Louis-Jacques,

Dr. Hoover, and Dr. Carter with copies of the Petition on November 18, 2019, and served Tampa General Hospital that same date. DOAH also served NICA with a copy of the Petition on November 18, 2019.

On April 2, 2020, NICA filed its Response to Petition for Benefits (the “Response”), taking the position that Petitioners’ claim is not compensable under the Plan. NICA requested DOAH schedule a hearing to determine compensability.

On June 11, 2020, NICA filed a Motion for Summary Final Order requesting the Administrative Law Judge enter a summary final order finding Petitioners’ claim not compensable under the NICA statute because Bryan did not suffer a “birth-related neurological injury” as defined in section 766.302(2).

FINDINGS OF FACT

1. Bryan was born on July 23, 2018, at Tampa Hospital located in Tampa, Florida.

2. The Petition alleges that James Palmer, M.D., Peeraya Sawangkum, M.D., Adetola Fadeyini Louis-Jacques, M.D., Elizabeth Ann Hoover, M.D., and Christina Jean Carter, M.D., were the delivering physicians for Bryan’s birth. No evidence was presented to DOAH regarding whether these doctors were “participating physicians” under the Plan at the time Bryan was born. See § 766.302(7), Fla. Stat.

3. Upon receiving the Petition, NICA retained Donald Willis, M.D., a board certified obstetrician/gynecologist specializing in maternal-fetal

   medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Bryan’s medical records and condition. NICA sought to determine whether Bryan suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Bryan experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Bryan permanently and substantially mentally and physically impaired.

4. Dr. Willis reviewed Bryan’s medical records and noted:

   The baby was depressed at birth... . Bag and Mask ventilation initiated for respiratory distress and subsequently intubated... . The baby was transferred to the NICU for respiratory distress.

   
   

   * * *

   
   

   The newborn hospital course was complicated and prolonged with discharge on DOL 63.

   
   

   Based on available medical records, there appears to be an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post- delivery period. The oxygen deprivation appears to have resulted is [sic] some degree of brain injury.

   
   

   Dr. Willis, however, was “not able to comment on the severity of any injury.”

5. Dr. Bella-Espinosa, on the other hand, did comment on the extent of Bryan’s brain injury. Dr. Bella-Espinosa reviewed Bryan’s medical records, as well as conducted an independent medical examination of Bryan on

   February 1, 2020. Dr. Bella-Espinosa opined, within a reasonable degree of medical probability:

   During today’s evaluation, Bryan has a completely normal neurological examination for his age, except for mild facial asymmetry as seen in child born

   with congenital Hypoplasia of the Depressor Angularis Oris Muscle, with normal development.

   
   

   Bryan is found to have no evidence of substantial physical impairment, and no evidence of substantial mental impairment at this time.

   
   

   There is no evidence of apparent residual neurological injury to the brain or spinal cord.

   
   

   The prognosis of full recovery is excellent. His estimated life expectancy is expected to be normal.

   
   

   Considering the clinical presentation, I do feel that there is not enough evidence to recommend Bryan is included in the NICA program.

   
   

6. Based on the statements from Dr. Willis and Dr. Bella-Espinosa, NICA determined that Petitioners' claim was not compensable under section 766.302(2). As of the date of this Order, Petitioners have not responded to NICA’s Motion for Summary Final Order.

7. A review of the documents in the record reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bella-Espinosa. Their opinions are credible and persuasive.

   
   

   CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to sections 766.301 through 766.316. The undersigned, as an Administrative Law Judge, has “exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable.” §§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stat.

9. The Florida Legislature established the Plan “for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims.” § 766.303(1), Fla. Stat.

10. To seek compensation under the Plan, a legal representative on behalf of an injured infant files a claim with DOAH. §§ 766.302(3) and 766.305(1), Fla. Stat. NICA, which administers the Plan, then 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.

11. 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.

12. In this matter, however, NICA determined that Petitioners' claim is not compensable under the Plan. Therefore, NICA filed the Motion for Summary Final Order, requesting an order be entered finding the claim not compensable.

13. In reviewing the compensability of a claim, section 766.309(1) directs the Administrative Law Judge to make the following determinations based upon the available evidence:

    1. Whether the injury claimed is a birth-related neurological injury;

       
       

    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; and

       
       

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

       
       

14. The term “birth-related neurological injury” is defined in section 766.302(2) as:

    
    

    injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation ... 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. “The [NICA] Statute is written in the conjunctive and can only be interpreted to require permanent and substantial impairment that has both physical and mental elements.” Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349, 1356 (Fla. 1997).

1. In reviewing the injury in this matter, the preponderance of the evidence does not establish that Bryan sustained a “birth-related neurological injury” as defined in section 766.302(2). Dr. Willis, other than concluding that Bryan did experience a birth-related injury, did not comment on the extent of possible brain injury. Dr. Bella-Espinosa, on the other hand, credibly opined that Bryan currently has no evidence of substantial physical impairment, and no evidence of substantial mental impairment. Neither did Dr. Bella-Espinosa find any evidence of apparent residual neurological injury to the brain or spinal cord. Dr. Bella-Espinosa commented that the “prognosis of full recovery is excellent.”

2. Therefore, based on the available evidence in the record,2 the undersigned determines that Bryan has not suffered a “birth-related neurological injury” and is not eligible for NICA benefits.

2 See Florida Administrative Code Rule 28-106.204(1).

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is dismissed, with prejudice.

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

S

J. BRUCE CULPEPPER 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)

Nicolasa Villa Guadalupe Arturo Abundis Pablo

2111 West Grey Street, Apartment 1

Tampa, Florida 33606

(Certified No. 7019 2280 0001 7689 4040)

Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 2280 0001 7689 4057)

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 4064)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified No. 7019 2280 0001 7689 4583)

James Marshall Palmer, M.D.

2 Tampa General Circle, 6th Floor Tampa, Florida 33606

(Certified No. 7019 2280 0001 7689 4071)

Elizabeth Ann Hoover, M.D. 17 Davis Boulevard, Suite 308

Tampa, Florida 33606

(Certified No. 7019 2280 0001 7689 4088)

Christina Jean Carter, M.D. 17 Davis Boulevard, Suite 308

Tampa, Florida 33606

(Certified No. 7019 2280 0001 7689 4095)

Adetola Fadeyini Louis-Jacques, M.D. STC 6th Floor

2 Tampa General Circle Tampa, Florida 33606

(Certified No. 7019 2280 0001 7689 4101)

Peeraya Sawangkum, M.D.

2 Tampa General Circle, 6th Floor Tampa, Florida 33606

(Certified No. 7019 2280 0001 7689 4118)

Tampa General Hospital Attention: Risk Management 1 Tampa General Circle Tampa, Florida 33606

(Certified No. 7019 2280 0001 7689 4125)

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: 19-005912N

Orders for Case No: 19-005912N