STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMBER REGISTER AND ETHAN REGISTER, ON BEHALF OF AND AS PARENTS AND NATURAL PARENTS OF WILLOW REGISTER, A MINOR,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent, and

LAKE SHORE HMA, LLC D/B/A SHANDS LAKE SHORE REGIONAL MEDICAL CENTER,

Intervenor.

/

Case No. 20-2518N

SUMMARY FINAL ORDER OF DISMISSAL

This came before the undersigned on Respondent’s Motion for Summary Final Order (Motion), filed September 18, 2020. Neither Petitioners nor Intervenor filed a response to the Motion within the allowable response period.

In its Motion, the Florida Birth-Related Neurological Injury Compensation Association (NICA) asserts that in order for a claim to be compensable under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), the statutory prerequisites of section 766.309, Florida Statutes, must be met, including:

1. The administrative law judge shall make the following determinations based upon all available evidence:

   
   

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

      
      

      * * *

      
      

2. If the administrative law judge determines that the injury alleged is not a birth-related neurological injury . . ., she or he shall enter an order . . . .

(emphasis added).

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

(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. (emphasis added).

FINDINGS OF FACT

1. On May 9, 2020, Petitioners filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. for benefits pursuant to sections 766.301-766.316, otherwise known as the Plan.

2. The baby was born on November 16, 2019, at Shands Lake Shore Regional Medical Center (Hospital). The circumstances of the labor, delivery,

   
   

   and birth of the minor child are reflected in the medical records provided by NICA in response to the Petition.

3. In the instant case, NICA has retained Donald C. Willis, M.D., as its medical expert specializing in maternal-fetal medicine. Dr. Willis’s medical report was attached to the Motion as Exhibit 1. Upon examination of the pertinent medical records, Dr. Willis opined:

   Based on available medical records, there was an apparent obstetrical event that may have resulted in some possible degree of oxygen deprivation during the birth process. However, any oxygen deprivation that may have occurred did not result in identifiable brain injury. It is likely the subdural and subgaleal hematomas resulted from failed vacuum application and not related to brain injury.

   
   

4. Additionally, NICA retained Raj Sheth, M.D., as its medical expert specializing in Pediatric Neurology. Dr. Sheth’s medical report was attached to the Motion as Exhibit 2. Upon examination of the pertinent medical records and performance of an independent medical examination, Dr. Sheth opined:

   Willows’ neurological examination reveals mild gross motor delays for expected age. There was no evidence of generalized hypotonia or hypertonia. The remainder of her neurological examination was normal for age. She was thought to have moderate HIE in the immediate neonatal course. Her head circumference is growing appropriately. PT and OT evaluation expected good prognosis. Currently, Willow is making constant ongoing progress, although the family notes this is slower than for her 4-year-old brother. The neurologic examination and developmental examination indicate that she has mild developmental delays and subtle hand preferences where she uses both hands but tends to prefer her right hand more than the left. At this point she does not demonstrate significant mental or physical impairments. Her EEG post cooling was

   
   

   normal. Her head ultra-sound was normal. Her head MRI was normal and showed no evidence of IE or hemorrhage.

   
   

5. The medical reports of Dr. Willis and Dr. Sheth are the only evidence of record relating to the issue of whether the subject claim is compensable as defined by the statute. The Petition, along with the unrebutted medical reports of Dr. Willis and Dr. Sheth, establishes that there are no genuine issues of material fact regarding the compensability of this claim.

   
   

   CONCLUSIONS OF LAW

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

7. 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.

8. 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 DOAH. §§ 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.

9. 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

   
   

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

10. The first inquiry is whether the infant has sustained a birth-related neurological injury as defined by section 766.302(2), which provides:

    “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 amultiple 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 geneticor congenital abnormality. (emphasis added).

    
    

11. If the administrative law judge determines that the infant meets the statutory threshold for weight and has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that as a result of the injury 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.

12. In this case, the evidence does not support a finding that the injury is a birth-related neurological injury. This issue is dispositive with respect to compensability. Based upon this evidence, Willow Register did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law provided above, Petitioners’ claim is not compensable under the Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 27th day of October, 2020, in Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS 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 27th day of October, 2020.

COPIES FURNISHED:

(via certified mail)

Grant A. Kuvin, Esquire Morgan & Morgan

Suite 1100

76 South Laura Street Jacksonville, Florida 32202 (eServed)

(Certified Mail No. 7019 2970 0000 6014 1973)

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

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7019 2970 0000 6014 1980)

Karina Haycook, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A. 50 North Laura Street

Jacksonville, Florida 32202 (eServed)

(Certified Mail No. 7019 2970 0000 6014 1997)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7019 2970 0000 6014 2000)

Shevaun L. Harris, Acting Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7019 2970 0000 6014 2031)

Emad Ismael Atta, M.D. 4812 West Highway 90 Lake City, Florida 32055

(Certified Mail No. 7019 2970 0000 6014 2048)

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: 20-002518N

Orders for Case No: 20-002518N