STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELO F. PACE AND ANDI R. PACE, ON BEHALF OF AND AS PARENTS AND NATURAL GUARDIANS OF PENELOPE ROSE PACE, A MINOR,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

Case No. 20-1102N

SUMMARY FINAL ORDER

On June 6, 2020, Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a Motion for Summary Final Order (Motion), which is due for consideration. The Motion relies on the expert opinion and affidavit of Luis E. Bello-Espinosa, M.D. Petitioners have not responded to the Motion.

STATEMENT OF THE ISSUE

The issue to be determined is whether Penelope Rose Pace (Penelope) suffered a birth-related neurological injury as that term is defined in section 766.302(2), Florida Statutes (2018), compensable by the Florida Birth- Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On February 13, 2020, Angelo F. Pace and Andi R. Pace (Petitioners), as parents and natural guardians of Penelope, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (the Petition), alleging

that Penelope suffered a birth-related neurological injury. The Petition identified Mary L. Perry, M.D., as the physician providing obstetrical services, and Holmes Regional Medical Center (Holmes) as the hospital where Penelope was born. On March 4, 2020, Dr. Perry, Holmes, and NICA were served copies of the Petition by certified mail. Certified return receipts for each indicate that all three received copies of the Petition.

On May 5, 2020, NICA filed a response to the Petition, asserting that the injury was not compensable. It also filed a Motion to Determine Confidentiality of Document, which has been granted by separate Order. On May 8, 2020, the parties were directed to confer and advise the undersigned as to the need for a hearing; and if one is necessary, the issues remaining in dispute, when they would be prepared to proceed to hearing, how long would be required, and the parties’ choice of venue.

On May 22, 2020, NICA filed a response indicating that it did not believe a hearing would be necessary. It further advised that Petitioners had not responded to its correspondence related to scheduling a hearing, and Petitioners did not file a separate response. After allowing additional time for Petitioners to file a response, and receiving none, on June 5, 2020, a Notice of Hearing was issued, scheduling the case for September 17, 2020.

On June 10, 2020, NICA filed a Motion for Summary Final Order. Petitioners did not file a response within the time provided in Florida Administrative Code Rule 28-106.204. In an abundance of caution, an Order to Show Cause was issued on June 22, 2020, directing Petitioners to file a response no later than June 26, 2020. To date, Petitioners have not filed a response either to the Motion or to the Order to Show Cause. Moreover, Petitioners have not filed anything with the Division of Administrative Hearings since filing their Petition in February.

FINDINGS OF FACT

Based on the Motion for Summary Final Order and the documents attached thereto, the following facts are found:

1. Andi R. Pace gave birth to Penelope at Holmes on March 7, 2019. Penelope was delivered via emergency Cesarean section because of placental abruption and fetal distress.

2. Penelope weighed 3,542 grams at birth.

3. Penelope had no heart rate or respiratory effort at birth. According to Dr. Bello-Espinosa’s review of the medical records, Penelope was intubated and given chest compressions in addition to epinephrine, resulting in a heart rate greater than 100 beats per minute. She was transferred to the NICU where she remained on a ventilator. Due to the need for active cooling, Penelope was transferred to Winnie Palmer Hospital NICU (Winnie Palmer) by air ambulance.

4. Penelope was admitted to Winnie Palmer about five hours after birth on March 7, 2019, and remained there until discharge on March 25, 2019. There were concerns regarding seizure activity while at Winnie Palmer, for which EEGs were obtained on March 8 and March 13, 2019, and an MRI on

   March 12, 2019. No electroclinical seizure activity has occurred since her discharge.

5. Dr. Bello-Espinosa is the Division Head of Pediatric Neurology and Director of the Pediatric Epilepsy Program at Arnold Palmer Hospital for Children. He reviewed the medical records for both Penelope and her mother, and conducted an independent medical examination of Penelope in order to determine whether she suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury.

6. Dr. Bello-Espinosa’s opinion is summarized in his affidavit, which states in pertinent part:

   Penelope is a 13-month and 24-day-old girl with a history of moderate hypoxic-ischemic

   
   

   encephalopathy of birth for which she underwent therapeutic hypothermia. She was documented to have had movements suggestive of seizures, which were treated with phenobarbital and levetiracetam. She had two EEGs which showed a propensity for focal onset seizures on day 1 and day 6 of life, as well an MRI of the brain obtained on day 5th of life which was indicative of an acute hypoxic-ischemic injury. In her examination Penelope today showed only a mild increased tone of her right arm, but with the rest of her neurological examination completely normal.

   
   

7. Dr. Bello-Espinosa opined with a reasonable degree of medical certainty that Penelope has no substantial mental impairment, and while she has a mild physical impairment limited to her right arm, there is no substantial physical impairment at this time.

8. There is no evidence in the record to rebut Dr. Bello-Espinosa’s opinion, and it is credited.

   
   

   CONCLUSIONS OF LAW

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

10. The Plan was established by the Florida 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.

11. An injured child, his or her personal representative, parents, dependents, or 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 a petition, and to submit relevant written

    
    

    information relating to whether the alleged injury is a birth-related neurological injury.

12. 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 an administrative law judge in accordance with chapter 120, Florida Statutes.

    §§ 766.304, 766.30, and 766.31, Fla. Stat.

13. A birth-related neurological injury is 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 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, deliver, 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.

    
    

14. 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.

15. In this case, there is evidence of a hypoxic event during the birth process, and evidence of a slight physical impairment with respect to one

    
    

    arm. However, there was no evidence that the physical impairment is substantial, or that Penelope suffers from any mental impairment.

16. The unrebutted evidence presented in the form of Dr. Bello-Espinosa’s report and affidavit demonstrates that there is no birth-related neurological injury as that term is defined in section 766.302(2). Accordingly, Petitioners are not eligible for an award of benefits under the Plan.

CONCLUSION

Based on the foregoing, Petitioners’ claim is not compensable under the Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 14th day of July, 2020, 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 14th day of July, 2020.

COPIES FURNISHED:

(via certified mail)

Angelo F. Pace Andi R. Pace 6124 Serene Place

Melbourne, Florida 32904

(Certified Mail No. 7015 0640 0001 2706 9297)

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

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9303)

Tana D. Storey, Esquire Rutledge Ecenia, P.A. Suite 202

119 South Monroe Street Tallahassee, Florida 32301 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9310)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7015 0640 0001 2706 9327)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7015 0640 0001 2706 9334)

Mary L. Perry, M.D.

330 East Hibiscus Boulevard Melbourne, Florida 32901

(Certified Mail No. 7015 0640 0001 2706 9341)

Holmes Regional Medical Center Attention: Risk Management 1350 South Hickory Street Melbourne, Florida 32901

(Certified Mail No. 7015 0640 0001 2706 9358)

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: 20-001102N

Orders for Case No: 20-001102N