Findings Of Fact Based on the Stipulation of the Parties, the following facts are found: Petitioners are the parents and legal guardians of Leina Gotay (Leina), and are the “Claimants” as defined by section 766.302(3). Leina incurred a “birth-related neurological injury” as that term is defined in section 766.302(2). At birth, Leina weighed 2,750 grams. B. Vereen Chithriki, M.D., rendered obstetrical services in the delivery of Leina and, at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7). Baptist Medical Center South is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Leina was born. Petitioners filed a Petition for Benefits pursuant to section 766.305, seeking compensation from NICA, and that Petition for Benefits is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Amy Nicole Alvarez was born on June 16, 2010, at Jackson South Community Hospital in Miami, Florida. Michael S. Duchowny, M.D. (Dr. Duchowny), was requested by NICA to do an independent medical examination of Amy and to review her medical records. Dr. Duchowny examined Amy on July 2, 2014. In an affidavit dated September 22, 2014, Dr. Duchowny reported his findings and gave the following opinion: In summary, Amy’s neurological examination today reveals mild right spastic hemiparesis, speech dysarthria and a complex visual agnosia. She additionally evidences microcephaly. Although I am concerned about Amy’s overall cognitive development due to her microcephaly, she appears to be progressing satisfactory and is making progress with respect to verbal communication both in the receptive and expressive domains. Her visual impairment is likely to be centrally-based. I had an opportunity to review Amy’s medical records. It contained information that is consistent with Amy’s overall history but I have not reviewed Amy’s brain MRI scans. However, in view of Amy’s relatively good mental development and only mild degree of motor impairment, I would not recommend inclusion within the NICA program. As such, it is my opinion that AMY NICOLE ALVAREZ is not permanently and substantially mentally impaired nor is she permanently and substantially physically impaired due to oxygen deprivation or mechanical injury occurring during the course of labor, delivery or the immediate post-delivery period in the hospital during the birth of AMY NICOLE ALVAREZ. (Emphasis in original.) A review of the file does not show any contrary opinion, nor was any potential contrary expert disclosed during the telephone hearing on the Motions for Summary Final Order. The opinion of Dr. Duchowny that Amy does not have a permanent and substantial mental or physical impairment is credited.
The Issue On November 17, 2020, Petitioners Meghan Gibson and Jarrod Gibson, as parents and natural guardians of Oliver Gibson (Oliver), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 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 identified Michelle Rothen, M.D., and Shawn Lee, M.D., as the physicians who provided obstetric services at the birth of Oliver on July 31, 2016, at Orlando Health, Inc., d/b/a Winnie Palmer Hospital (Winnie Palmer Hospital), located in Orange County, Florida. DOAH served Michelle Rothen, Shawn Lee, Winnie Palmer Hospital, and NICA with a copy of the Petition on December 11, 2020. On February 9, 2021, NICA filed a Notice of Non-Compensability and Request for Evidentiary Hearing on Compensability, asserting that Oliver did not sustain a “birth-related neurological injury” as that term is defined in section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to determine compensability. On February 15, 2021, the undersigned entered an Order that required the parties to confer and advise concerning the need for a hearing, if any, and if a hearing is needed, when the parties will be prepared to proceed to a hearing, the issues in dispute, the estimate of time required for hearing, and the choice of venue. On March 5, 2021, NICA filed a Response to Order Dated February 15, 2021. The Response to Order Dated February 15, 2021, noted that NICA “does not anticipate a hearing will be required in this matter[,]” and stated, in part, that “NICA has filed a Motion for Summary Final Order seeking a ruling that the claim is not ‘Compensable’ …..” Intervenors Michelle Rothen, Shawn Lee, and Women’s Care Florida, LLC, filed a Response to Order Dated February 15, 2021, which similarly noted that “a hearing will not be required in this matter” and that they will not oppose NICA’s Motion for Summary Final Order. Petitioners did not respond to the February 15, 2021, Order. On March 16, 2021, NICA filed its Motion for Summary Final Order (Motion). Petitioners have not filed a response to the Motion within the seven-day time period for a response set forth in Florida Administrative Code Rule 28-106.204(4), and, as noted above, did not respond to the undersigned’s February 15, 2021, Order.
Findings Of Fact Oliver was born on July 31, 2016, at Winnie Palmer Hospital, located in Orange County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Oliver. In a medical report dated December 24, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor was induced at 37 weeks for preeclampsia. Chorioamnionitis developed during labor and Cesarean delivery was done for a non- reassuring FHR pattern and failed induction. The newborn was depressed with cord blood gas pH < 7.00 However, the baby responded to resuscitation efforts and was on room air by six hours after birth. Neurologic exam was noted to be essentially normal. Head imaging studies were not done during the newborn hospital course. Brain MRI at three years of age was normal. There was likely some degree of oxygen deprivation at birth, based on the low Apgar scores and cord blood pH < 7.00. However, the baby responded to resuscitation efforts with no identifiable brain injury. Although there was an obstetrical event that resulted in some degree of oxygen deprivation to the baby during labor and delivery and possibly extending into the immediate post-delivery period, the oxygen deprivation did not result in identifiable brain injury. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello-Espinosa), a medical expert specializing in pediatric neurology, to examine Oliver and to review his medical records. Dr. Bello-Espinosa examined Oliver on February 5, 2021. In a medical report dated February 7, 2021, Dr. Bello- Espinosa summarized his examination of Oliver and opined, in pertinent part, as follows: Oliver is a four-year-six-month-old boy with a history of perinatal depression after birth. He had rapid recovery in the NICU. He did not need therapeutic hypothermia. He did not have symptomatic seizures or other clinical signs to indicate a perinatal hypoxic event. His neurological examination today was completely normal except for dysfluency of speech as frequently seen in children with mixed receptive-expressive language disorders. * * * Oliver does not suffer of a substantial mental or physical impairment at this time. * * * Oliver does not have mental or physical impairments. * * * In reviewing all the available documents, the evolution of [his] symptoms, there is no evidence of mental and physical impairments due to severe injury to the brain acquired due to oxygen deprivation to the brain occurring during the labor- delivery period. * * * There are no permanent substantial mental and physical impairments that occurred during birth. Considering the clinical presentation, I feel there is no[t] enough evidence to recommend Oliver be included in the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Oliver that resulted in identifiable brain injury. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bella-Espinosa’s opinion that Oliver should not be considered for inclusion in the NICA program. Dr. Bella-Espinosa’s opinion is credited. Petitioner has failed to respond to the Motion.
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") regarding Certificate of Need (“CON”) Application No. 10198, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. The Agency preliminarily approved the application. 1. On December 10, 2013, the Agency published notice of its preliminary decision to approve CON Application 10198, submitted by Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. 2. On December 30, 2013, Memorial Healthcare Group, Inc. d/b/a Memorial Hospital Jacksonville (“Memorial”), timely filed a petition for formal administrative hearing to contest the preliminary approval of CON Application 10198. 3. The matter was referred to the Division of Administrative Hearings (DOAH), where it was assigned Case No. 14-0123CON. Filed July 21, 2014 1:02 PM Division of Administrative Hearings 4. On July 3, 2014, Memorial filed a Notice of Voluntary Dismissal. 5. On July 7, 2014, the DOAH issued an Order Closing File and Relinquishing Jurisdiction to the Agency. It is therefore ORDERED: 6. The Agency’s preliminary decision to approve CON Application No. 10198 is UPHELD subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this f x day of eeley , 2014. Elizabeth Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below- BE 45 named persons by the method designated on this SL K day of a , 2014. —4 : FS Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration Lorraine. Novak@ahca.myflorida.com (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) Seann M. Frazier, Esquire Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 Sfrazier@phrd.com Jlr@phrd.com (Electronic Mail) Karl David Acuff, Esquire Law Offices of Karl David Acuff 1615 Village Square Blvd., Suite 2 Tallahassee, Florida 32309-2770 Kdacuff@fioridacourts.com (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration James.McLemore@ahca.myflorida.com (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration Marisol. Fitch@ahca.myflorida.com (Electronic Mail)
Findings Of Fact Maximilian was born on October 26, 2017, at Winnie Palmer Hospital, located in Orange County, Florida. According to the medical records from Winnie Palmer Hospital, Maximilian weighed four pounds and three ounces, or 1900 grams, at birth.
Findings Of Fact Based on all available evidence, the undersigned makes the following findings of fact. Mateo was born on July 10, 2019, at the Hospital located in Orlando, Florida. Petitioner filed the Petition with DOAH on August 28, 2019. DOAH then served a copy of the Petition on NICA on September 17, 2019. In reviewing the claim, NICA obtained medical records regarding Mateo’s birth. The medical records document that Mateo’s weight at birth was 2,365 grams. A review of the medical records submitted in this matter reveals no evidence disputing a finding that Mateo weighed under 2,500 grams at his delivery at the Hospital. Based on the evidence that Mateo weighed less than 2,500 grams at birth, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Summary Final Order asserting that Mateo did not suffer a “birth-related neurological injury” as defined by section 766.302(2).
