12-000850N Gail Gaskin, Individually And As Parent Of Cairo Gaskin-Dacosta, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 18, 2016.

Summary: Child does not have substantial mental and physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAIL GASKIN, individually and as

parent of CAIRO GASKIN - DACOSTA,

a minor,

Petitioner,

vs. Case No. 12 - 0850N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

________________ _______________/

FINAL ORDER

Pursuant to notice, a final hearing was held in this case

on June 2, 2016, via video teleconference with sites in Miami

and Tallahassee, Florida, before Barbara J. Staros, an

Administrative Law Judge of the Division of Administrative

H earings (DOAH).

APPEARANCES

For Petitioner: Jonathan T. Gilbert, Esquire

Cassidy Perdue, Esquire

Colling, Gilbert, Wright & Carter, LLC

801 N orth Orang e Avenue, Suite 830

Orlando, Florida 32801

For Respondent: Robert J. Grace , Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

S TATEMENT OF THE ISSUE

The issue in this case is whether Cairo Gaskin - Dacosta

suffered an injury for which compensation should be awarded under

the Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

PRELIMINARY STATEMENT

On March 8, 2012, G ail Gaskin, individually and as parent

and guardian of Cairo Gaskin - Dacosta (Cairo), a minor, filed a

Petition for Determination of Compensability Pursuant to Florida

Statute Section 766.301 et seq. (Petition) , with DOAH. The case

was assigned to Administ rative Law Judge Susan B. Kirkland. The

Petition alleged that Cairo suffered oxygen deprivation at birth

resulting in cerebral palsy and sought a determination as to

compensability under the Florida Birth - Related Neurological

Injury Compensation Associati on ( NICA ) statutes.

The Petition named Megan Indermaur, M.D., as the physician

providing obstetric services at CairoÓs birth, and that Cairo was

born at Tampa General Hospital which is located in Tampa,

Florida, on October 18, 2008.

DOAH served NICA with a copy of the Petition on March 15,

2012 , and served Tampa General Hospital and Megan Dawn Indermaur,

M.D., with a copy of the Petition on March 16, 2012. As of the

date of this Final Order, neither Tampa General Hospital nor

Megan Indermaur, M.D., has pe titioned to intervene into this

proceeding.

On May 4, 2012, NICA filed a response to the Petition,

giving notice that the alleged injury did not "meet the

definition of a 'birth - related neurological injury' as defined in

section 766.3021(2), Florida Statut es, which specifically

requires that the injury render 'the infant permanently and

substantially mentally and physically impaired.'" 1/ NICA

requested that a hearing be scheduled to resolve whether the

claim was compensable.

A final hearing was scheduled for October 1, 2012. After

several motions for continuance were granted, Judge Kirkland

entered an Order Placing Case in Abeyance requiring the parties

to advise the status of the case by August 14, 2015. The case

was reassigned to the undersigned A dmini strative L aw J udge on

September 18, 2014, due to Judge KirklandÓs retirement.

Following one continuance, the final hearing ultimately took

place on June 2, 2016.

Petitioner, Gail Gaskin, testified at the final hearing.

PetitionerÓs E xhibits 1 through 4, which included the deposition

testimony of Michael Freimark, M.D., and Dan Ha, PT, DPT, were

admitted into evidence. Respondent, NICA, did not present

testimony of any live witnesses. RespondentÓs E xhibits 1

through 4, which included the deposition testi mony of

Michael Duchowny, M.D., and Gail Gaskin, were admitted into

evidence.

The parties filed a Pre - h earing Stipulation, in which they

agreed to certain facts as set forth in section 3 of the Pre -

h earing Stipulation. These facts have been incorporated into

this Final Order.

A one - volume transcript of the final hearing was filed on

June 21, 2016. The parties timely filed their proposed final

orders, which have been carefully considered in the drafting of

this Final Order.

FINDINGS OF FACT

1. Gail Ga skin 2/ is the natural mother of Cairo Gaskin -

Dacosta.

2. At all times material hereto, Gail Gaskin was an

obstetrical patient of Megan Indermaur, M.D., who was a

participating physician as defined in section 766.302(7), Florida

Statutes.

3. Dr. Inderma ur provided obstetrical services in the

course of Ms. GaskinÓs labor and delivery.

4. Cairo Gaskin - Dacosta was born on October 18, 2008.

5. Cairo weighed in excess of 2,500 grams at birth.

6. Cairo was born live at Tampa General Hospital, which is

a l icensed Florida hospital.

7. Petitioner , Gail Gaskin , had a cerclage procedure when

she was five months pregnant. On October 17, 2008, Ms. Gaskin

had that removed and was sent home. She went into labor the

following day and was admitted to Tampa General Hospital on

October 18, 2008. Upon arrival to the labor and delivery triage

area, she went to the restroom and noticed she was bleeding and

shivering. According to her medical records, she went to the

restroom to void and there was evidence of a small a mount of

vaginal bleeding. She was immediately placed on a fetal heart

monitor. Fetal heart tones were in the 90s - 70s. The fetal heart

tones did not improve. A fetal scalp electrode was placed which

revealed the fetal heart tracing to be consistently i n the 70s

to 60s. A stat cesarean delivery was called and Ms. Gaskin was

taken to the operating room. Delivery was complicated by

placental abruption.

8. At birth, he was limp, blue, with no respiratory effort.

Bag and mask ventilation was done for fo ur minutes, at which time

Cairo was intubated for poor respiratory effort. At about ten

minutes of life, Cairo started spontaneous respiration. CairoÓs

Apgar scores were 2 (one minute), 4 (five minutes), and 4 (ten

minutes). 3/ The cord pH was 6.87.

9. Following delivery, the placenta was sent to pathology.

The final pathology diagnosis was:

- Third trimester placenta 665 grams,

- Placentomegaly,

- Focal chorangiosis,

- stage 2 acute chorioamnionitis ,

- Trivascular umbilical cord.

10. Cairo was taken t o the NICU, where he stayed for seven

days and discharged home on October 25, 2008 . His Discharge

Summary includes the following:

Diagnoses:

1. Respiratory Distress;

2. Hypoxic ischemic event - Stage 1; and

3. Sepsis ruled out .

* * *

Neurologic: EEG done on DOL 0 secondary to

increased tone and abnormal movements. This

showed no seizures, however, was consistent

with diffuse enc e phalopathic process that

could include encephalopathy or

toxic/metabolic cause. A UDS was negative

from 10/18. A CT of h ead (10/20) was found

to be negative. Neurology was consulted and

recommended a follow up EEG prior to

discharge. A follow up EEG was performed on

10/24 and found to be negative. Neurology

did not believe a follow up with them was

required.

Medical Records of Early Treating Physicians

11. CairoÓs medical records reflect that he was evaluated

for developmental delay in March 2010 , when he was 17 months old ,

by pediatric neurologist Carmen Ferreira, M.D. His history

included: rolling over at three to four months, sitting at

around six months, crawling at around seven months, pulling up

and cruising at about nine months, and taking a few steps at the

time of the exam. Verbally, he spoke a few words, understood and

followed simple commands. Dr. Ferr eiraÓs assessment was

developmental delay, motor or speech, and noted that he was

progressing very well with his development and did not have any

focal neurologic findings that may suggest a neurologic

condition. She advised Ms. Gaskin to continue with th e plan of

therapy through early steps.

12. During a follow - up exam two months later, Dr. Ferr ei ra

noted under History that Cairo had done very well with motor

development, ran well, walked upstairs, and went downstairs with

help. She noted that he was not saying many words yet. Her

assessment was similar to the previous visit, and she added

Ðgait, abnormal, noted to be wobbly when walkingÑ to her

assessment.

13. After moving from Tampa to Miami, Dr. Oscar Papazian, a

pediatric neurologist, evaluated Cairo at Miami ChildrenÓs

Hospital in January 2012. The medical records reflect the

following:

Physical Examination:

1. Vital Signs: HR 78 per minute and

regular. RR 18 per minute and regular.

WT: 35 pounds. HT: 38 HC: 49 cm

2. General e xamination reveals no

neurocutaneous abnormality or dysmorphic

features.

3. Systemic examination is normal.

Permanent contractures NO .

4. Neurological examination reveals MS:

normal except for short attention span,

hyperactivity, impulsivity, languag e delay.

CN: normal except for drooling. Muscles:

mild increase muscle tone in both

gastrocnemius, biceps, and pectoralis and

less degree wrist and finger flexor. MSR are

3 at both quadriceps and gastrocnemius

without clonus and 2 biceps. Plantar

re sponse. Extension bilateral. Gait: mild

tip toes and toe in. Station: normal.

Sensory: normal.

His diagnosis was

1. Cerebral Palsy mild spastic

quadriparesis,

2. Global developmental delay,

3. Preschool ADHD combined type.

Etiology: Isc hemic hypoxic encephalopathy)

14. Cairo was treated more recently by Dr. Tatyana

Dubrovsky, a pediatric neurologist. The medical records date

from April 2013 through May 2015. On May 20, 2015, Dr. Dubrovsky

made the following notation and assessment:

Neurological exam: The patient is awake,

alert, with normal affect and behavior and

cooperative with the exam. Examination of

the cranial nerves II - XII was normal except

poor tong u e agility probably due to

pseudobulbar palsy causing dysarthria and

inter mittent drooling. No abnormality of

tone, motor and deep tendon reflexes noted.

No nystagmus, ataxia or dysmetria noted. No

abnormality of stance appreciated.

Assessment:

1. Epilepsy seizure, generalized, convulsive

2. CP (cerebral palsy), spastic

3. ADD (attention deficit hyperactivity

disorder, inattentive type)

Testimony of Treating Physicians and Health Providers

15 . Petitioner presented the deposition testimony of

Dr. Michael Freimark, a pediatric physician with Sunrise

Pediatrics in Plantati on, Florida. Cairo became a patient there

in 2011 and was first seen by Dr. Freimark in 2012 and last seen

by Dr. Freimark in February 2013.

16. Dr. Freimark noted that Cairo has an abnormal gait and

delayed speech, as well as some degree of weakness o n his right

side. He characterized CairoÓs abnormal gait as ÐslightÑ lower

extremity spasticity. When explaining his use of the word

Ðslight,Ñ he testified: Ð We do have patients here with severe

spasticity who require bracing and are wheelchair bound. ThatÓs

not the case with Cairo.Ñ

1 7 . Dr. Freimark noted CairoÓs history from the discharge

summary from Tampa General Hospital. Based solely upon the

hospitalÓs discharge summary, Dr. Freimark surmised that Cairo

sustained loss of oxygen at birth. Whil e Dr. Fr ei mark believes

that CairoÓs deficits are amount to permanent and substantial, he

deferred to pediatric neurologists to make those determinations

as he is a pediatrician, not a pediatric neurologist.

Dr. Freimark also noted that Cairo had experien ced both febrile

and non - febrile seizures.

1 8 . Petitioner presented the deposition testimony of

Dan Ha, a p hysical t herapist who practices at Little Steps

Rehabilitation Clinic in North Miami Beach. Cairo receives

physical therapy, occupational therapy , and speech therapy at

Little Steps. Dr. Ha holds a doctorate in physical therapy.

CairoÓs initial evaluation at Little Steps took place on

September 13, 2011. The deposition was taken on December 9,

2013, so Dr. HaÓs testimony relates to that two - year period of

time (when Cairo was approximately three - to - five years old).

Dr. Ha was asked about whether CairoÓs problems were permanent

and whether they constitute a substantial physical impairment:

Q. Well, are you able to say what sort of

physical impa irments he will have on a

permanent basis?

A. That would be on my problem list in all

my reevals ; the tone, the cerebra l palsy.

Off the top of my head -- let me turn to that

page.

Q. I have his most recent problem list here.

A. Yeah. There you go.

Ce rebral palsy, I mean thatÓs a lifelong

diagnosis. Developmental delay, he will

always be behind other kids. Spasticity,

lifelong. Tone, lifelong. Rigidity,

lifelong. Balance issue, it can get worse.

Why, because, you know, for the next 10 years

heÓs g oing to gain more weight. HeÓs going

to get taller, heÓs going to get bigger. His

center of gravity will shift. His base of

support will change. Postural stability and

balance, itÓs connected. ItÓs going to

change. It can get worse. And motor

planni ng, like I said, the ability for you to

stir a cup of coffee with a spoon. You and I

take that for granted, he might not be able

to do that.

19 . When asked about whether Cairo has a substantial

physical impairment, Dr. Ha replied as follows:

A. For me, based on my professional

opinion, when you say Ðsubstantial,Ñ itÓs

someone that cannot walk. You know, someone

that requires total assistance to transfer

from a wheelchair to a bed, thatÓs

substantial. Will he be functional in life,

yes. Can he live on his own in the future,

thatÓs to be determined, based on his

cognition. WeÓll know Ï - by the time heÓs

like 12, 13, weÓll know for sure.

* * *

Q: Do you have an opinion now after weÓve

talked about his employability a little bit

more on whether Cairo ha s a substantial

physical impairment?

Mr. Grace: Same objection.

A: Again, the word ÐsubstantialÑ in my

field is someone that is bedbound, canÓt

walk. So ÐsubstantialÑ is what I would

write on my report i f someone requires

assistance to even transfer f rom a

wheelchair to a bed, I would put the word

Ðsubstantial.Ñ

Q: You would for Cairo?

A: I would not say substantial. I would

not use the word Ðsubstantial.Ñ ICD - 9 codes

who use the word substantial for a person

that would need assistance just to -- j ust

like I say, transfer from a wheelchair to

someone that requires assistance to even put

on their clothes, thatÓs what you would call

substantial in my field and in the ICD - 9

coding .

Testimony of CairoÓs M other and S chool R ecords

2 0 . Ms. Gaskin is a s ingle mother who is CairoÓs

caregiver. She described CairoÓs continuing problems with both

fine and gross motor skill deficits that cause him to drop

things, knock things over, and to have difficulty with eating

food. Cairo is not allowed to use a knife so she cuts his food

for him. Cairo needs help opening a milk carton and Ðmakes a

messÑ when eating meals. His speech is poor so she often has to

ask him to repeat himself and often has to translate what he

says to others, including his teachers.

2 1 . He has a short attention span that carries over to

school. He receives special education services from Miami - Dade

County Public Schools. The most recent Individual Educational

Plan (IEP) in evidence placed him in Other Health Impaired,

Language Impaired, a nd continuing to be eligib le to receive, to

a limited extent, physical, occupational and speech therapy

within the school context. Cairo still receives these therapies

on Saturdays at Little Steps, although Ms. Gaskin indicated that

insurance coverage for that will run out soon.

2 2 . On May 6, 2016, Miami - Dade Public Schools performed an

IEP for Cairo. He was finishing the first grade at Gratigny

Elementary School. Cairo was reported to be able to follow

classroom routines and participate in activitie s with minimal

support. He could identify most 2D and 3D shapes. He knew the

letters of the alphabet and their sounds. He could identify and

add coins. He could add two - digit numbers with regrouping ,

subtract two - digit numbers without regrouping , and f ind missing

numbers. He was having difficulty writing legibly and using

correct writing conventions such as punctuation, capitalization ,

and spelling. He had issues with regard to distractibility. He

was having difficulty identifying words that rhyme an d words

with the same medial sound. Cairo was walking independently in

line on all terrains. He had good sitting balance, his posture

was appropriate when standing and sitting, his gait pattern and

arm swing continued to improve. He could pick up things from

the floor. He enjoyed participating in gross motor activities.

He was independent in toileting and feeding. He could string

beads, insert pegs , and build with L ego blocks. His writing and

cutting skills were showing improvement. He was noted to have

low muscle tone and difficulty with standing balance. Writing

assignments took much time and effort.

2 3 . Respondent presented the deposition testimony of

Dr. Michael Duchowny, M.D. , who was retained to evaluate Cairo .

Dr. Duchowny was deposed on Nov ember 27, 2012 , and again on

May 10, 2016. Dr. Duchowny is board - certified in pediatric s,

neurology with special competence in child neurology , and in

clinical neurophysiology. He is a senior staff attending

physician in neurology at Nicklaus ChildrenÓs Hospital where he

is emeritus director of the Comprehensive Epilepsy Center and is

the director of the neurology training programs. Dr. Duchowny

is a clinical professor of neurology and pediatrics at the

University of Miami School of Medicine and clinical professor of

neurology at the Florida International University School of

Medicine. His roles include patient care, teaching, research ,

and administration.

2 4 . Dr. Duchowny reviewed Cairo Ós medical records and

performed an independent medical examinatio n (IME) on Cairo on

April 25 , 201 2, and again on March 23, 2016 .

2 5 . During his first deposition on November 27, 2012,

Dr. Duchowny was of the opinion that Cairo began to suffer

oxygen deprivati o n before labor began. He believed the slight

tightness of the heel cords and the absence of any post - natal

situation would suggest any neurological compromise was acquired

during labor and delivery. As additional support, Dr. Duchowny

noted that Cairo did not require prolonged intubation or

mechanical ventilatio n. There was no evidence of multi - organ

system failure and his CT scan on day of life 3 was normal.

This suggested to Dr. Duchowny more likely than not that CairoÓs

neurological problems were acquired prior to the onset of labor.

Dr. Duchowny expected t hat if a brain MRI was done currently on

Cairo , it would provide better information as to whether Cairo

suffered hypoxic ischemic encephalopathy. Dr. Duchowny thought

it was too early at 3.5 years to tell if CairoÓs speech would be

completely normal , but he believed his speech would improve and

progress. Dr. Duchowny also believed that CairoÓs drooling

would improve , but his oral motor coordination would remain poor

and his speech articulation will never be 100 percent .

2 6 . On March 23, 2016, Dr. Duchown y performed an updated

IME on Cairo. On physical examination , his findings were

normal. Head circumference was not only within standard

percentages but was an appropriate increase from the

circumference measurement taken at the 2012 IME. From a

neurolog ical standpoint , Cairo was interactive and playful but

also impulsive and did not stay on task. CairoÓs speech was not

clear. It was dysarthic for all sounds and consonants that

involve movement of the lips, tongue and cheek muscles. The

motor exam did reveal some abnormalities with tone more

increased in the lower extremities. Range of motion was full ,

there was no focal weakness, no atrophy of muscles , and no

involuntary movement. Hand coordination was impaired and he had

difficulty with individual f inger movements and pincer grasp.

His gait was stable , although he walked in an awkward manner.

Dr. Duchowny was still of the opinion that Cairo did not suffer

a birth - related neurological injury. He testified that his

opinion was supported by the brain MRI which was done on

February 21, 2014. Dr. Duchowny read the scan as normal and saw

nothing which would suggest Cairo suffered hypoxic ischemic

encephalopathy. Dr. Duchowny did not know the cause of CairoÓs

s eizures because the brain MRI was normal , b ut regard s CairoÓs

seizure disorder as developmentally based because the brain MRI

had no obvious lesions that provide a structural acquired

symptomatic explanation for the seizures. Dr. Duchowny believed

Cairo did suffer from neurological impairments but his motor

disability was mild to moderate, not a substantial motor

disability. Dr. Duchowny , in his March 30, 2016, report , stated

the following .

In summary, CairoÓs neurological examination

again reveals evidence of a spastic

diparesis and marked ex pressive language

dysfluency with oromotor and oculo - motor

dyspraxia. He has developed a seizure

disorder that is relatively well controlled

and additionally evidences problems in

learning and behavior.

I have reviewed additional medical records

sent on July 29, 2014, deposition testimony

of CairoÓs mother, his pediatrician

D r . Michael Freinark [ sic ] , and physical

therapist, Mr. Dan Ha. I also reviewed MR

imaging studies including his most recent

studies acquired in 2014. His last study is

notable as t he brain is entirely normal with

the possible exception of a slight asymmetry

in the hippocampi.

Although Cairo is unequivocally disabled

from both a motor and mental standpoint, he

is ambulatory and is demonstrating learning

capacity. Also, his recent b rain MR imaging

study does not show significant abnormality

which suggests that CairoÓs neurological

disability was acquired prenatally and is

not birth related. Certainly, there are no

features to suggest either a mechanical

injury or oxygen deprivation in the course

of either labor or delivery. For these

reasons, I am not recommending Cairo for

inclusion within the NICA program.

2 7 . Dr. DuchownyÓs opinion that CairoÓs injury is

inconsistent with either a mechanical injury or oxygen

deprivation to the brain in the course of labor or delivery is

credited.

2 8 . The greater weight of the evidence establishes through

the expert opinions of Dr. Duchowny that that there was no

apparent obstetrical event that resulted in loss of oxygen to

CairoÓs brain during labor, delivery and continuing into the

post - delivery period that resulted in brain injury.

29 . Dr. Duchowny Ós opinion that Cairo has permanent, but

not substantial, mental and physical impairments is credited.

3 0 . Dr. DuchownyÓs opinion in this regard is consistent

with CairoÓs physical therapist, Dr. Ha, who does not

characterize CairoÓs physical impairments as substantial because

Cairo is ambulatory. Moreover, Dr. Fr ei mark characterized

CairoÓs abnormal gait as Ðslight,Ñ in contrast to those patient s

who require bracing and who are wheelchair bound.

3 1 . The greater weight of the evidence , including CairoÓs

educational records, along with Dr. DuchownyÓs expert opinions,

establishes that while Cairo has permanent motor and mental

deficits, these defi cits do not render him substantially

mentally and physically impaired.

CONCLUSIONS OF LAW

3 2 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. (2011).

3 3 . The Plan was established by the Legislature "to provide

compensation on a no - fault basis, for a limited class of

catastrophic injuries that result in unusually high costs for

custodial care and rehabilitation ." § 766.301 , Fla. Stat .

(emphasis added ) . The Plan applies only to a birth - related

neurological injury, which 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 g estation 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).

3 4 . The injured infant, her or his personal representative,

parents, dependents, and next of kin, may seek compensation under

the P lan by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. NICA ,

which admini sters the Plan, has "45 days from the date of service

of a complete claim . . . in which to file a response to the

petition and submit relevant written information relating to the

issue of whether the injury is a birth - related neurological

injury." § 766. 305(4), Fla. Stat.

3 5 . 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 cl aim has been

assigned. § 766.305(7), Fla. Stat. If, on the other hand, NICA

disputes the claim, as it has in the instant case, the dispute

must be resolved by the assigned Administrative Law Judge in

accordance with the provisions of chapter 120, Florida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

3 6 . In discharging this responsibility, the Administrative

Law Judge must make the following determinations based upon all

available evidence:

(a) Whether the injury claimed is a birth -

related neu rological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.302(2).

(b) 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 resuscitat ion in the

immediate postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

Administrative Law Judge concludes that the "infant has sustained

a birth - related neurological injury and that obstetrical services

we re delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

3 7 . In the instant case, Petitioner filed a claim alleging

that Cairo did sustain oxygen deprivation resulting in cerebral

palsy and as a result is substantially impaired. As t he

proponent of the issue of compensability, the burden of proof is

upon Petitioner. § 766.309(1)(a), Fla. Stat. See also Balino v.

Dep't of Health & Rehab. Servs . , 348 So. 2d 349, 350 (Fla. 1st

DCA 1977)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative of an issue before an

administrative tribunal.").

3 8 . The parties have stipulated that a participating

physician provided obstetric services at CairoÓs birth in a

hospital licensed in Florida. Cairo was born a live in fant and

weighed in excess of 2,500 grams. The parties agree that CairoÓs

mental and motor deficits are permanent but disagree as to

whether they were caused by oxygen deprivation or mechanical

injury during labor, delivery, or the immediate post - delivery

period, and whether his deficits are substantial as contemplated

by section 766.302(2).

39 . Dr. DuchownyÓs expert opinion establishes that that

there was no apparent obstetrical event that resulted in loss of

oxygen to CairoÓs brain during labor, deliver y and continuing

into the post - delivery period that resulted in brain injury.

40 . Dr. DuchownyÓs expert opinion that CairoÓs deficits are

not ÐsubstantialÑ is consistent with CairoÓs physical therapist,

Dr. Ha, who does not characterize CairoÓs physical i mpairments as

substantial because Cairo is ambulatory. Moreover, Dr. Fr ei mark

characterized CairoÓs abnormal gait as Ðslight,Ñ in contrast to

those patients who require bracing and who are wheelchair bound.

4 1 . Even if the evidence support ing an ischemi c event were

more substantial, the remaining issue to be determined is whether

the injury resulted in a permanent and substantial mental

impairment and a permanent and substantial physical impairment,

inasmuch as both are required to establish compensabili ty. Fla.

Birth - Related Neurological Injury Comp. Ass'n v. Div. of Admin.

Hearings , 686 So. 2d 1349 (Fla. 1997)(the Ð Birnie " decision).

4 2 . While Petitioner has presented factual evidence

regarding CairoÓs difficult birth, and that he has physical and

mental impairments, it has not been established through expert

opinion that Cairo has a substantial mental and physical

impairment as contemplated by section 766.302. There have been

no expert opinions filed contrary to the credible opinions of

NICAÓs expert pediatric neurologist. Thus, Cairo is not entitled

to benefits under the NICA Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the P etition filed by Gail Gaskin, on

behalf of and as parent of Cair o Gaskin - Dacosta, is dismissed

with prejudice.

DONE AND ORDERED this 18th day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The D eSoto 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 18th of August , 2016 .

ENDNOTE S

1/ T his response w as based in part on a medical report from

NICAÓs maternal - fetal expert, Dr. Donald Willis. However,

Dr. WillisÓ report or opinion is not in evidence and was,

therefore, not considered.

2/ PetitionerÓs name is occasionally referenced as Gail Gaskin -

Her nandez in the record. At hearing, she identified herself as

Gail Gaskin.

3 / The 10 - minute Apgar score was referenced as 4 on the NICU

admission form, but in a later record was referenced as 5. The

correct 10 - minute score appears to be 4.

COPIES FU RNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0001 2700 7145)

Robe rt J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7015 0640 0001 2700 7 152 )

Jonathan T. Gilbert, Esquire

Cassidy Perdue, Esquire

Colling, Gilbert, Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7015 0640 0001 2700 7343)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certif ied Mail No. 7015 0640 0001 2700 7350)

Elizabeth Dudek, 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 2700 7367)

Megan Dawn Indermaur, M.D.

Suite B

600 8th Street South

St. Petersburg, Florida 33701

(Certified Mail No. 7015 0640 0001 2700 7374)

Tampa General Hospital

1 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7015 0640 0001 2700 7381)

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 a gency c lerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be

reviewed, and a copy, accompanied by filing fees prescribe d 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).