14-004019N Amber Evans And Fleming Garland, Individually And As Parents Of Jordan S. Garland, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, September 23, 2016.

Summary: Child did not sustain oxygen deprivation during birth. Child does not have a substantial physical impairment..

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMBER EVANS AND FLEMING GARLAND,

Individually and as Parents of

JORDAN S. GARLAND, a minor,

Petitioners,

vs. Case No. 14 - 4019N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Responden t,

and

SOUTHERN BAPTIST HOSPITAL OF

FLORIDA, INC.,

Intervenor.

_______________________________/

FINAL ORDER

Pursuant to an Order dated June 7, 2016, the parties were

granted leave to submit a stipulated factual record an d written

argument in lieu of a contested hearing in this case. The

S tipulated R ecord was filed on July 1, 2016. The parties were

granted until July 27, 2016, in which to file proposed final

orders or written arguments. A Joint Motion for Extension of

T ime was granted and the parties timely filed their proposed

final orders on August 22, 2016.

APPEARANCES

For Petitioner s : Jonathan T. Gilbert, Esquire

Cassidy Perdue, Esquire

Colling, Gilbert, Wright & Carte r, LLC

801 N orth Orange Avenue, Suite 830

Orlando, Florida 32801

For Respondent: M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue, Suite 301

Jacksonville, Florida 32256

STATEMENT OF THE ISSUE

The issue in this case is whether Jordan S. Garland suffered

an injury for which compensation should be awarded under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan ).

PRELIMINARY STATEMENT

On July 23, 2014, Amber Evans and Fleming Garland,

individually and as parents of Jordan S. Garland (Jordan), a

minor, filed a Petition for Determination of Compensability

Pursuant to Florida Statute Section 766.301 et seq. (Petiti on),

with DOAH. The Petition alleged that Jordan suffered oxygen

deprivation or mechanical injury occurring during labor, delivery

or the immediate post - delivery period, and sought a determination

as to compensability under the Florida Birth - Related Neuro logical

Injury Compensation Association (NICA) statutes.

The Petition asserted Martin A. Garcia, M.D., as the

physician providing obstetric services at JordanÓs birth, and

asserted Jordan was born at Baptist Medical Center in

Jacksonville, Florida, on Sept ember 22, 2009.

DOAH served NICA with a copy of the Petition on August 27,

2014, and served Baptist Medical Center and Martin A. Garcia,

M.D., with a copy of the Petition on August 28, 2014.

Southern Baptist Hospital of Florida, Inc., d/b/a Baptist

Medi cal Center filed a Petition to Intervene, which was granted.

As of the date of this Final Order, Martin A. Garcia, M.D., has

not petitioned to intervene into this proceeding.

On June 30, 2015, 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 Statutes.'" NICA requested that a hearing be

scheduled to resolve whether the claim was compensable.

A final hearing was sched uled for June 9, 2016. On May 13,

2016, the parties filed a Pre - h earing Stipulation in which they

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

hearing Stipulation. These facts have been incorporated into this

Final Order.

On June 6, 2016 , the parties filed a Joint Motion to Submit

Stipulated Record in Lieu of a Contested Hearing, which was

granted. A Notice of Filing Stipulated Record was filed on

June 24, 2016. On June 27, 2016, Intervenor filed a Notice of

Filing Additional Exhibit as Evidence for Consideration in Case,

despite having taken no position for or in opposition to the issue

of compensability in the Pre - h earing Stipulation.

Petitioners and Respondent timely filed their Proposed Final

Orders on August 22, 2016, which have be en carefully considered in

the preparation of this Final Order. On the same date,

Petitioners also filed a Motion to Strike or Limit the Testimony

of Defense Expert Dr. Donald Willis and a Motion to Limit the

Testimony of Defense Expert Dr. Raymond Fernan dez. Respondent

filed a Response in Opposition to PetitionersÓ Motion s to Strike

and/or Limit Testimony of Experts. These motions are addressed by

separate order.

FINDINGS OF FACT

1. Amber Evans and Fleming Garland are the natural parents

of Jordan Gar land.

2. Jordan was born on September 2 2, 2009, at Baptist Medical

Center , which is a licensed hospital located in Jacksonville,

Florida.

3. Jordan weighed in excess of 2,500 grams at birth.

4. Amber Evans was an obstetrical patient of Dr. Martin

Garc ia, who at all times material to this proceeding, was a

participating physician in the NICA program. 1/

5. On September 21, 2009, Amber Evans contacted Dr. GarciaÓs

office because she was going into labor. She was told to come

into the office where Dr. G arcia checked her and instructed her to

go to the hospital to be admitted. She was admitted to Baptist

Medical Center at approximately 3:30 p.m., and was sent to labor

and delivery.

6. Ms. Evans recalls that between approximately 7:00 and

8:00 p.m., the heart rate monitor alarm periodically sounded ,

until the nurses repositioned her. Ms. Evans estimates that the

monitor alarm went off approximately every 45 minutes, at which

time the nurses would reposition her and the alarm would stop.

Based upon conv ersations which took place in the labor and

delivery room, Ms. Evans believed that the alarm went off when the

babyÓs heart rate went down.

7. Jordan was born by vaginal delivery at 2:24 a.m.

According to Ms. Evans, Dr. Garcia arrived in the delivery room

when JordanÓs head Ðwas basically already out . Ñ When Jordan was

delivered, she recalls that he was blue in color, was not

breathing, and that Dr. Garcia instructed the nurses to perform

resuscitation on Jordan. After he was resuscitated, she heard him

cry and was able to hold him before he was taken to the nursery.

8. Fleming Garland, JordanÓs father, was present in the

delivery room and also recalls the heart monitors going off and

Ms. Evans being repositioned. He recalled Dr. Garcia turning

Jord an from a face - down position to a face - up position as he was

delivering Jordan.

9. Mr. Garland cut the umbilical cord, and Jordan was taken

to the warming table where he was resuscitated. Mr. Garland

recalls that Jordan was covered in birth film, was a little blue,

and that his eyes were closed. He saw three or four people

huddled around the warming table while Jordan was being

resuscitated. After hearing Jordan cry, he recalled that the

delivery room staff brought Jordan to them. Ms. Evans held Jorda n

first, followed by Mr. Garland. At that time, Mr. Garland

described Jordan as being really pink, a little yellowish, with

his eyes closed.

10 . Mr. Garland then accompanied the nurses who took Jordan

to the nursery, where he assisted in giving Jordan h is first bath.

Mr. Garland returned to the delivery room and after a period of

time, the nurses brought Jordan back into the delivery room to his

parents, where Ms. Evans attempted to nurse Jordan. Jordan was

unable to latch, so he was fed formula. Jorda n stayed with his

parents in the labor and delivery room for the rest of that night.

Mr. Garland recalls that Jordan was periodically taken back to the

nursery where he was monitored for jaundice. Otherwise, Jordan

stayed in the room with his mother and/o r his father. Attempts at

breastfeeding remained unsuccessful.

1 1 . Carrie Anderson is a neonatal physician assistant. She

was employed at Baptist Medical Center at the time Jordan was

born, and was known at that time as Carrie Smith. She was called

to the labor and delivery unit where Jordan was born. She arrived

in the labor and delivery room seven minutes after Jordan was

born. When she arrived, she was provided information about what

had happened up to that point. According to her report, the baby

had been in distress with no respirations, with a heart rate less

than 100. Bag mask valve had been used Ðtimes 90 seconds

intermittentlyÑ meaning that bag and mask ventilation was used

intermittently for a total of 90 seconds. The report reflects

that Jordan became pink and stayed pink with spontaneous

respirations and a heart rate greater than 100.

1 2 . At the time Ms. Smith arrived, resuscitative efforts

were no longer ongoing. Jordan had Ðmild acrocyanosis moving

times four , Ñ meaning that he had a bluish color of the palms and

soles of his feet and that the extremities were moving. Ms. Smith

explained that was indicative of continuation of transition from

fetal blood flow to infant blood flow. JordanÓs one - minute and

five - minute Apgar scores, whi ch were 3 and 7, had been determined

before Ms. Smith arrived. Ms. Smith determined the 10 - minute

Apgar score to be 10. She cleared Jordan to be sent to the

nursery unit.

1 3 . When asked about her involvement when she arrived in the

room, Ms. Smith reviewed her progress notes and testified as

follows:

A. According to my note I walked in -- when

it says RN reports, then itÓs indicative of m e

saying whatÓs going on. And the RN tells me

that the baby came out with no respirations.

She bagged the bab y for 90 seconds

intermittently. And then the baby was pink

and stayed pink, spontaneous respirations,

heart rate above 100. I approached the baby,

and the baby is in the radiant warmer, and,

according to my note, pink and not crying, but

you can -- I co uld clearly see the baby was

breathing on his own and there was some slight

retractions which is your -- just your

subcostal retractions of having a little bit

difficulty breathing. And then no nasal

flaring, which is also a sign of no

respiratory distres s. The nasal flaring

indicates respiratory distress.

* * *

Q. The baby was still having difficulty

breathing still when you arrived?

A. According to my note he was having slight

retractions. And then according to my

physical exam, his bilateral b reath sounds

were equal and had mild rales throughout, but

-- that were clearing with crying, which is

showing improvement in the baby.

Q. Okay. By ten minutes of life would those

have resolved?

A. According to my Apgar of 10 out of 10,

yes.

1 4 . Jor danÓs blood cord pH was 7.21.

1 5 . Jordan was discharged from the hospital on September 24,

20 09 , on his third day of life.

1 6 . Ms. Evans first began to have concerns about JordanÓs

development when he was three - to - six months old. Jordan was

ÐwobblyÑ wh en trying to sit up and needed support under his head

and neck as he had trouble holding his head up.

1 7 . JordanÓs parents expressed their concerns to

Dr. Silberman, who was JordanÓs pediatrician at that time.

Dr. Silberman referred them to Early Steps which came to their

home once or twice a week and provided physical therapy and

occupational therapy to Jordan. Ms. Evans noticed improvements in

Jordan from the physical therapy including his ability to balance

his neck correctly, his ability to start t o crawl and an

improvement in eating. The physical therapist provided physical

therapy to Jordan until he was three years old.

1 8 . When Jordan was about five months old, Dr. Silberman

referred JordanÓs parents to Dr. Sheth, a pediatric neurologist at

Nem ours. Dr. Sheth performed a neurological exam on Jordan on

March 1, 2010. It is not entirely clear from the record whether

Dr. Silberman or Dr. Sheth ordered an MRI, but one took place.

1 9 . Following the neurological exam and reviewing the MRI

report, Dr. Sheth wrote a letter to Dr. Silberman which reads in

pertinent part:

IMPRESSION:

Jordan is a 5 - month - old male presenting with a

history of head [lag] as well as an MRI scan

that is suggestive of a possible structural

abnormality in the form of nodula r

heterotopia. On exam, patient does appear to

have a mild delay in terms of his head control

with a head lag. Jordan has reached other

developmental milestones including cooing,

bringing his hands together and moving his

arms and legs equally and symmetr ically. In

other words there are no other features on

exam that would point to gross motor delay.

The MRI of the brain performed in [ sic ]

02/25/2010 shows benign extracerebral cerebral

fluid collection that does correspond with his

head circumference at th e 95 th percentile. In

addition there was a suspected nodule

heterotopia reported on the MRI scan; however,

this will need to be reviewed with Radiology

to further confirm these findings. The benign

extracerebral fluid collection is anticipated

to resolve over time.

RECOMMENDATIONS:

1. We will review the MRI of the brain at the

next Neuroradiology conference to further shed

light on the possible structural abnormality

in the form of nodular bilateral frontal horn

nodular heterotopia. The parents were

r ecommended to call the office 1 week after

the conference for the results.

2. If no abnormality is confirmed, the

patient will not need to followup in Neurology

Clinic; however, if the findings are confirmed

then we will contact the patient.

3. The pat ientÓs parents were recommended to

call the office with any new additional

developmental or other concerns for that

matter.

20 . Dr. Sheth conducted a reevaluation of Jordan about six

months following the previous visit. He wrote another letter to

Dr. Si lberman which reads in pertinent part:

ASSESSMENT:

Jordan Garland has developmental delay

associated with thinning of the corpus

callosum, although the corpus callosum is

intact, as well as 2 nodular heterotopias that

were seen, 1 in each ventricle in the frontal

horns. No other heterotopias were seen

anywhere else. He has no ash leaf spots to

suggest tuberous sclerosis; however, this is

clearly in consideration. I discussed the

findings of this and told the mother that

these did not need surgery by them selves.

They sometimes are associated with seizures

which she will watch for.

PLAN: Genetics consultation. I have not

scheduled a further followup appointment for

her ; however, should seizures develop, mother

knows to return to see us.

2 1 . Dr. Sh eth again examined Jordan in 2014. In a letter

dated May 27, 2014, to Dr. Robert Colyer, JordanÓs current

pediatrician, Dr. Sheth stated in pertinent part as follows:

I saw your 4 - year - old patient, Jordan Garland,

in the Pediatric Neurology Clinic in

cons ultation for evaluation of speech issues

that he is not talking.

HISTORY OF PRESENT ILLNESS: Jordan is a

4 - year - old boy who I first saw when he was an

infant for evaluation delays. Since that

time, the most prominent problem he has is

speech relat ed issues, particularly related to

and associated with difficulty swallowing. He

drools a lot as well. He has poor

coordination in his mouth and tongue.

Reviewing his MRI scans I see modular

heterotopias plus hypoplastic corpus callosum

and wider opened sylvian fissures than normal.

Clearly, one wonders if while the sylvian

fissures are not as wide open as you would

expect with open opercular syndrome, if there

are features of this. His findings are

consistent with delays that are related to

cerebral ma lformation and the delays manifest

both in expressive language and in swallowing.

Because of this, I recommend the following

specific plan:

1. Genetic consultation. Mom had blood drawn

when he was 1 - year - old, but the sample was

apparently lost and she was very frustrated

and did not see Genetics at that time.

Clearly this is important now. He is the only

child for this family. They are considering a

2 nd child and it would heavily depend on the

ratios of likelihood to have another child

similarly aff ected.

2. I have recommended speech and language

evaluation. This is to identify issues that

could be consistent with the open opercular

syndrome as well as suggest management

strategies for this. He does not have any

nutritional problems as a result o f these

problems.

2 2 . In his deposition taken on May 23, 2016, Dr. Sheth was

asked about his May 27, 2014, letter to Dr. Colyer. Dr. Sheth

testified in relevant part as follows:

Q. All right. Now again, referring to this

letter to Dr. Colyer in 2014, you indicated in

here that , ÐHis findings are consistent with

delays that are related to cerebral

malformation and that the delays manifest both

in expressive language and in swallowing .Ñ

Did I read that correctly?

A. Yes.

Q. Okay. And can you plea se explain what

that means:

A. Well, the -- so the findings of diffuse

low white matter volume and the heterotopias,

to an extent, would all be indicating, you

know, that they manifest in many ways, but

expressive language and swallowing were one of

the ways in which I thought it might be

manifesting in this situation.

* * *

Q. And so what you are saying there is that

the pattern of brain malformation and, in

particular, correct me if IÓm wrong, the

nodular heterotopias are consistent with the

pattern o r impairment that you see in this

child?

A. That is correct.

2 3 . Jordan is now seven years old. According to his

mother, he still suffers from developmental delay. He only says

a few words. He has shown improvement in physical abilities in

that he i s able to walk and run. He can jump in that he can now

successfully get both feet off of the ground. He wore orthotics

on his feet until a few months ago. He is still a little

unbalanced although his walking and running have noticeably

improved over the past year. Jordan enjoys playing outside. He

loves to throw a ball and enjoys playing basketball using a

childÓs basketball set. He loves playing with remote - control

cars. He still has training wheels on his bicycle and still uses

his feet to push the bike along. Jordan enjoys using an iPad,

playing with Legos, and taking selfies.

2 4 . Jordan is in kindergarten in a special education

program. He is improving with writing skills and starting to

pick up math. He can identify letters, colors, and shap es. He

is able to follow instructions.

2 5 . Jordan receives physical, occupational, and speech

therapy at school. He also sees a speech pathologist once a week

at Nemours. At the time of her deposition in March 2016,

Ms. Evans was waiting for a referra l for Jordan to receive some

additional physical therapy at Nemours.

2 6 . Jordan still has significant problems with his speech,

although he has shown improvement with vowel sounds. According

to his mother, Jordan has never had a seizure.

2 7 . NICA ret ained Dr. Donald Willis, an obstetrician

specializing in maternal fetal medicine, who reviewed the medical

records related to JordanÓs birth and subsequent development to

determine whether Jordan sustained an injury to the brain or

spinal cord caused by ox ygen deprivation or mechanical injury in

the course of labor, delivery , or resuscitation in the immediate

post - delivery period. In two separate reports dated November 7,

2014 , and February 2, 2016 , Dr. Willis stated in pertinent part:

(November 7, 2014 Re port)

Delivery was by vaginal birth. There is no

record of forceps or vacuum extractor use.

Amniotic fluid was clear. Birth weight was

3,414 grams.

The newborn was depressed initially at birth.

Apgar scores were 3/7/10. Cord blood gas had

a normal p H of 7.21 with a base excess of

only - 3. Bag and mask ventilation was

required at birth and continue d for [90

seconds]. [ 2 ] The baby was noted to be

responsive and clinically stable after the

initial bag mask resuscitation.

Evaluation in the nursery indic ated the

initial respiratory distress at birth had

resolved. The baby had problems with

hypoglycemia and failed the newborn hearing

test. The baby was approved for discharge

home on 0 9/24/2009, which would be DOL 3.

Subsequent problems after hospital di scharge

include recurrent otitis media, abnormal

peripheral auditory function and

developmental delay.

MRI of the brain at 9 months of age showed

marked thinning of the corpus callosum,

diffuse white matter volume loss with

enlarged lateral ventricles an d bilateral

nodular heterotopia in the frontal horns of

the brain.

Genetic evaluation showed normal chromosomes

and normal microarray studies. Evaluation at

16 months by Genetics stated the clinical and

imaging findings Ðimply early fetal

developmental i nsult.Ñ

In summary: Although there was initial

depression at birth, the cord blood pH was

normal. The respiratory depression at birth

resolved with resuscitation efforts. The

newborn hospital course was not complicated

by multisystem failures or seizur es, which

are commonly seen with birth hypoxia. The

baby was discharged home on DOL 3, which

again would not be expected with a

significant hypoxic brain injury at birth.

MRI finding of nodular heterotopia is

consistent with early fetal brain development

abnormalities and not hypoxic injury.

Nodular Heterotopia is a condition in which

nerve cells do not migrate properly during

the early development of the fetal brain.

This abnormality generally occurs from the

time of early brain development to about 24 -

weeks gestational age. This is a congenital

brain developmental abnormality and not a

hypoxic birth related injury.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery or the immediate post delivery

period.

(February 2, 2016 , Report)

I have reviewed the additional medical record

concerning the above case, which include

Labor and Delivery hospital records for the

mother, fetal heart rate monitor tracing

during labor, p renatal records, school

records, out - patient office visits and

billing records.

The fetal heart rate (FHR) monitor tracing

during labor was reviewed. Baseline FHR was

140 bpm with normal variability on admission,

which would be consistent with no fetal

distress at time of hospital admission.

Contractions were every 2 to 4 minutes,

consistent with labor. Occasional variable

FHR decelerations occurred during labor, but

FHR variability remained normal. This would

suggest some umbilical cord compression, but

no fetal distress.

The remainder of the additional medical

records confirmed findings already discussed

in the letter dated 11/07/2014.

In summary: FHR monitor tracings are

consistent with no apparent fetal distress

during labor. The additional rec ords would

agree with the previous statement that there

was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

injury to the babyÓs brain during labor,

delivery or the immediate post delivery

period.

2 8 . Dr. Willis was deposed on May 26, 2016, in which he

reaffirmed the opinions expressed in the above referenced

reports. He noted that while Jordan required some bag

ventilation, he responded to resuscitation and recovered well, as

evidenced by the five - minute Apgar score of seve n, which is

considered normal. He explained that the one - minute Apgar score

is not a good predictor of the ultimate outcome. The five and

10 - minute scores are generally more predictive of the ultimate

outcome of the child with respect to any oxygen depri vation

experienced during labor and delivery. He further explained that

10 is the highest Apgar score, so the fact that Jordan had an

Apgar score of 10 is indicative that the baby was very stable at

that time.

2 9 . Dr. WillisÓ opinion that there was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor, delivery or the

immediate post - delivery period is credited.

30 . NICA also retained Dr. Raymond Fernandez, a pediatric

neurologist, to evalua te Jordan . Dr. Fernandez reviewed Jordan Ós

medical records and performed an independent medical examination

on Jordan on June 17 , 201 5. In a medical report dated June 23,

2015, Dr. Fernandez stated the following:

IMPRESSION:

Delay in all areas of d evelopment, probably

due to a developmental brain abnormality

characterized as nodular heterotopias seen on

brain MRI.

Jordan has substantial mental impairment that

will probably be permanent. While in general

he is not well - coordinated, his motor

impair ment is not considered to be

substantial, but rather of less severity.

There is no evidence in the medical record to

suggest oxygen deprivation or mechanical

trauma of brain or spinal cord during labor,

delivery, or the immediate post - delivery

period of r esus c itation, is the cause of

JordanÓs neurodevelopmental and brain MRI

abnormalities.

3 1 . Dr. Fernandez reaffirmed his opinions contained in his

June 2015 written report when he was deposed on May 11, 2016.

That is, that Jordan has substantial mental i mpairment that will

most likely be permanent. However, while Jordan is not well -

coordinated, he is of the opinion that his motor impairment is

not considered to be substantial, but rather is less severe. He

also believes that JordanÓs motor development can improve.

3 2 . Dr. Fernandez also is of the opinion that the cause of

JordanÓs impairments relates to his early brain malformation

characterized as nodular heterotopias, not to any oxygen

deprivation or mechanical trauma during labor, delivery or the

im mediate post - delivery period of resus c itation. This is

consistent with the testimony of JordanÓs treating pediatric

neurologist, Dr. Sheth, and supports the opinion of Dr. Willis.

3 3 . Dr. FernandezÓs opinion that Jordan is permanently and

substantiall y mentally impaired is credited. Dr. FernandezÓs

opinion that JordanÓs physical impairment is less than

substantial is credited.

3 4 . The greater weight of the evidence establishes through

the expert opinion of Dr. Willis that that there was no apparent

obstetrical event that resulted in loss of oxygen to JordanÓs

brain during labor, delivery and continuing into the post -

delivery period that resulted in brain injury.

3 5 . The greater weight of the evidence establishes through

the expert opinion of Dr. Fernandez that while Jordan has motor

impairments, his motor impairment is less severe than substantial

and that his motor development can improve.

3 6 . While Petitioners have presented factual evidence

regarding JordanÓs birth and his mental and physical impairments,

they have not established through expert opinion that there was

an obstetrical event that resulted in oxygen deprivation or

mechanical trauma to the babyÓs brain during labor, delivery, or

the immediate post - delivery period, or that Jordan ha s a

permanent and substantial motor impairment as contemplated by

section 766.302. Thus, Jordan is not entitled to benefits under

the P lan.

CONCLUSIONS OF LAW

3 7 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subje ct matter of this proceeding.

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

3 8 . 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

custo dial 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 spi nal 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 de ath caused by genetic

or congenital abnormality . (emphasis added).

39 . The injured infant, her or his 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. NICA, which

administers 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.

4 0 . 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 tha t the award is approved

by the Administrative Law Judge to whom the claim 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 Administrati ve Law Judge in

accordance with the provisions of chapter 120, Florida Statutes.

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

4 1 . In discharging this responsibility, the Administrative

Law Judge must make the following determinations based upon all

avail able evidence:

(a) Whether the injury claimed is a birth -

related neurological 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 dep rivation 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 resuscitation 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 sustai ned

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

4 2 . In the instant case, Petitioners filed a claim alleging

Jordan did sustain oxygen deprivation or mech anical injury

resulting in significant developmental delay and neurology

impairment. As the proponent of the issue of compensability, the

burden of proof is upon Petitioners. § 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.").

4 3 . The parties have stipulated that Jordan was born a live

infant in a hospi tal licensed in Florida and weighed in excess of

2,500 grams. There is no dispute that the physician who provided

obstetric services at JordanÓs birth was a participating physician

in the NICA program. The parties disagree as to whether JordanÓs

impairme nts were caused by oxygen deprivation or mechanical injury

during labor, delivery, or the immediate post - delivery period, and

whether his motor deficits are substantial as contemplated by

section 766.302(2).

4 4 . Dr. WillisÓ expert opinion establishes that that there

was no apparent obstetrical event that resulted in loss of oxygen

to JordanÓs brain during labor, delivery and continuing into the

post - delivery period that resulted in brain injury.

4 5 . Even if the evidence supporting an ischemic event were

p resent, 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 compensability. Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Div. of Admin. Hearings , 686

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

4 6 . While Petitioners have presented factual evidence

regarding JordanÓs birth, and that he has physical and mental

impairments, it has not been established through expert opinion

that Jordan has a substantial physical impairment as contemplated

by section 766.302. There have been no expert opinions filed

contrary to the credible opinion of NICAÓs expert pediatric

neurologist.

4 7 . Mor eover, section 766.302(2) expressly states that the

definition of birth - related neurological injury shall not include

disability or death caused by a genetic or congenital abnormality.

Dr. Fernandez is of the opinion that the cause of JordanÓs

impairments relates to his early brain malformation characterized

as nodular heterotopias. This is consistent with the opinion of

Dr. Willis and with the testimony of JordanÓs treating pediatric

neurologist. In addition to the reasons set forth above, this

does not comport with the definition of birth - related neurological

injury as contemplated by section 766.302(2).

4 8 . Accordingly, Jordan 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 Petition filed by Amber Evans and

Fleming Garland, Individually and as parents of Jordan S. Garland,

is dismissed with prejudice.

DONE AND ORDERED this 23rd day of September , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 Cl erk of the

Division of Administrative Hearings

this 23rd day of September , 2016 .

ENDNOTE S

1/ The parties referenced different physicians in their Proposed

Final Orders as to who performed obstetrical services at JordanÓs

birth. Petitioners referenced D r. Garcia, the physician named in

the Petition. NICA referenced Dr. Frank Trogolo, who at the time

of JordanÓs birth, was in practice with Dr. Garcia. Drogolo

testified that he was not involved in the labor and delivery of

Jordan. Dr. Garcia did not testify but was identified as the

obstetrician by JordanÓs parents. Both parties identified the

referenced physician as a participating provider in the NICA

program. In any event, there appears to be no dispute that the

physician providing obstetric ser vices at JordanÓs birth was a

participating physician at all times material to this proceeding.

2 / Dr. WillisÓ initial report stated Ð9 minutes.Ñ Dr. Willis

corrected this error during his May 26, 2016, deposition, and

explained that the reference to Ð 9 minutesÑ was a typographical

error and should read Ð90 seconds.Ñ

COPIES FURNISHED:

(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 2701 0985)

Jonathan T. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7015 0640 0001 2701 0992)

Megan R. Heiden, Esquire

Smith Hulsey & Busey

Suite 1800

225 Water Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7015 0640 0001 2701 1005)

M. Mark Bajalia, Esquire

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256

(eServe d)

(Certified Mail No. 7015 0640 0001 2701 1012)

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 2701 1029)

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 2701 1036)

Martin A. Garcia, M.D.

Baptist Medical Pavilio n

836 Prudential Driv e , Suite 1103

Jacksonville, Florida 32207

(Certified Mail No. 7015 0640 0001 2701 9964)

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

76 6.311(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 Hearing s

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).