15-000983N Evelyn Green And Akeem E. Brown, Individually And On Behalf Of Akeem Brown, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Friday, December 2, 2016.

Summary: Child does not have a permanent and substantial mental impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN GREEN and AKEEM E. BROWN,

individually and on behalf of

AKEEM BROWN, a minor,

Petitioners,

vs. Case No. 15 - 0983N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Resp ondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Ass ociation (NICA), on

October 17, 2016.

STATEMENT OF THE CASE

On February 1 8 , 2015, Petitioners, Evelyn Green and Akeem E.

Brown, individually and on behalf of Akeem Brown (Akeem), a minor,

filed a Petition Under Protest Pursuant to Florida Statute Section

7 66.301 et seq. (Petition), with the Division of Administrative

Hearings (DOAH). The Petition was subsequently amended, and the

Amended Petition Under Protest was filed on June 18, 2015.

The Petition named Marwan Munib Shaykh, M.D., as the

physician prov iding obstetric services at the birth of Akeem at

Memorial Hospital in Jacksonville, Florida, on May 15, 2012.

DOAH served NICA with a copy of the Petition on February 25,

2015. DOAH served Marwan Munib Shaykh, M.D., with a copy of the

Petition on Februa ry 26, 2015. DOAH served Memorial Hospital

Jacksonville with a copy of the Petition on February 27, 2015.

On June 29, 2015, Memorial Healthcare Group, Inc., d/b/a

Memorial Hospital Jacksonville, filed a Petition to Intervene,

which was granted.

On Nove mber 17, 2015, NICA filed a response to the Amended

Petition, giving notice that the injury does not "meet the

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

section 766.302(2), Florida Statutes, which specifically requires

that the inju ry render 'the infant permanently and substantially

mentally and physically impaired.'" NICA requested that a hearing

be scheduled to resolve whether the claim was compensable.

A hearing was scheduled for June 28, 201 6 . A Motion for

Continuance was gran ted and the hearing was rescheduled for

October 6, 2016. On September 23, 2016, Intervenor Memorial

Hospital Jacksonville filed a Notice of Withdrawal, stating that

it would take no part in advancing or opposing any argument

regarding the issue of compens ability. Petitioners and Respondent

filed a Joint Notice Regarding Need for Final Hearing, stating

that with the withdrawal of Intervenor Memorial Hospital

Jacksonville, there was no longer any need for a final hearing.

The hearing scheduled for October 6, 2016, was canceled.

On October 17, 2016, NICA filed a Motion for Summary Final

Order, asserting that Akeem did not sustain a birth - related

neurological injury as that term is defined in section 766.302(2),

Florida Statutes. While no response to the mot ion was filed by

Petitioners, it is noted that the Petition was filed under protest

and asserted that the Petitioners are not claimants.

FINDINGS OF FACT

1. Akeem Brown was born on May 15, 2012, at Memorial

Hospital Jacksonville in Jacksonville, Florida.

2. NICA retained Donald C. Willis, M.D. (Dr. Willis), to

review AkeemÓs medical records. In a medical report dated May 14,

2015, Dr. Willis made the following findings and expressed the

following opinion:

Spontaneous vaginal delivery was apparently

u ncomplicated. Birth weight was 3,626 grams

or 8 lbs. The baby was not depressed. Apgar

scores were 8/9.

Newborn hospital course appears to be

uncomplicated. Progress note on the day after

birth recommended routine newborn care.

Neurology evaluation a t 20 months of age

stated the baby had global developmental

delay, hypotonia, and hyperreflexia. MRI at

about 2 years of age showed bilateral motor

cortex hyperintense FLAIR, suggestive of

gliosis. A subsequent neurology note stated

this finding was like ly related perinatal

ischemia.

In summary, there was no apparent fetal

distress during labor. Delivery was

uncomplicated. The newborn was not depressed.

Newborn hospital course was uncomplicated.

The baby was subsequently found to have global

developme ntal delay and an abnormal MRI as

described above. There is nothing in the

medical records to suggest this brain injury

was related to hypoxia or trauma during the

birth process.

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.

3. Dr. Willis reaffirmed his opinion in an affidavit dated

October 31 , 2016.

4. Dr. WillisÓ opinion that there was no obstetrical event

that resulted in loss of oxygen or mechanical trauma to the

babyÓs brain during labor, delivery or in the immediate post -

delivery period is credited.

5. Respondent retained Laufey Y. Sigurdardottir, M.D.

(Dr. Sigurdardottir), a pediatric neurologist, to evaluate Akeem.

Dr. Sigurdardottir reviewed AkeemÓs medical records, and

performed an independent medical examination on him on

October 21, 2015. Dr. Sigurdardottir made the following findings

and summarized her evaluation as follows:

Summary: Akeem is a 3 - year 5 - mont h - old black

male who has a possible bilateral hemiplegic

cerebral palsy following a fairly

uncomplicated pregnancy and delivery. His

MRI shows evidence of old hypoxia. After

review of fairly extensive maternal records

and labor and delivery records, it s eems

clear that timing his injury is difficult as

he did not show any evidence of recent

neurologic injury at the time of birth.

Although sparse medical records of Akeem are

made available to us, such as physical

therapy or occupational therapy records,

co gnitive testing or language assessments and

no additional neurologic evaluations are at

hand it seems clear that Akeem has relatively

spared cognitive abilities.

Final result:

Results of question 1: The patient is found

to have a permanent substantial p hysical

impairment, but to have relatively mild

mental impairment mainly in the areas of

language.

Results of question 2: There is evidence on

neuroimaging that AkeemÓs difficulties could

relate to hypoxic neurologic injury, but no

clear evidence to sugg est the timing of such

an injury and, therefore, it cannot be

established that it occurred in the immediate

perinatal period.

Results of question 3: We would expect full

life expectancy, although a guarded prognosis

for motor recovery and likely ongoing

disability from his significant bilateral

hemiplegia. We expect favorable recovery in

areas of cognition and language. In light of

the above - mentioned details, difficulty with

clear timing of AkeemÓs injury, we do not

recommend Akeem to be included into the

Neurologic Injury Compensation Association

(NICA) Program and would be happy to answer

additional questions.

6. Dr. Sigurdardottir reaffirmed her opinions in an

affidavit dated November 29 , 2016.

7. In order for a birth - related injury to be compen sable

under the Plan, the injury must meet the definition of a birth -

related neurological injury and the injury must have caused both

permanent and substantial mental and physical impairment.

8. Dr. SigurdardottirÓs opinion that while Akeem has a

substant ial physical impairment, he has a relatively mild mental

impairment , mainly in the area of language , is credited.

9. 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. Sigurdard ottir that Akeem does not have a

substantial mental impairment.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (2014).

11. T he 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. 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 gestation or, in the case o f 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 th e 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).

12. The injured infant, h er 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. The Florida

Birth - Related Neurological Injur y Compensation Association, 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 bir th - related neurological injury."

§ 766.305(4), Fla. Stat.

13. 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 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 Administrative Law Judge in

accordance wit h the provisions of chapter 120, Florida Statutes.

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

14. In discharging this responsibility, the Administrative

Law Judge must make the following determinations based upon all

available evidence:

(a) Whether t he 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 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 se rvices 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 sustained

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

15. In the instant case, Petitioners filed a claim seeking a

determination of whether Akeem sustained a birth - related

neurological injury that is compensable under the NICA plan. 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 ilitative 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.").

16. Dr. Willis established that there was no apparent

obstetrical event which resulted in oxygen deprivation or

mechanical trauma to the babyÓs brain during labor, delivery and

the immediate post - delivery period. The remaining issue to be

determined is whether the injury resulted in a permanent and

substantial mental impairment and a permanent and substantial

physi cal 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).

17. The evidence, which is not refuted, established that

Akeem does not have a permanent and substantial mental impairment.

Thus, Akeem is not entitled to benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

T hat the P etition filed by Evelyn Green and Akeem E . Brown,

individually and on behalf of Akeem Brown, is dismissed with

prejudice.

DONE AND ORDERED this 2nd day of December , 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 Clerk of the

Division of Administrative Hearings

this 2nd day of December , 2016 .

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. 7012 3050 000 1 0080 3624)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Ave.

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3648)

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Flor ida 32256

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3655)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0001 0080 3662)

Justin Senior , Interim Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3679)

Marwan Munib Shaykh, M.D.

Suite 450

3627 Un iversity Boulevard

Jacksonville, Florida 32216

(Certified Mail No. 7012 3050 0001 0080 3686)

FOR INFORMATIONAL PURPOSES:

Travase Lloyd Erickson, Esquire

Saalfield, Shad, Stokes, Inclan,

Stoudemire and Stone, P.A.

Suite 400

245 Riverside Avenue

Jackson ville, Florida 32202

(eServed)

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 gove rned 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 reviewe d, 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).