15-004433N Terrance Drake, Jr., A Minor Child, By And Through His Next Friends, Natural Guardians And Natural Parents, Desiree Little And Terrance Drake; Desiree Little, Individually And As Mother Of Terrance Drake, Jr.; And Terrance Drake, Et Al. vs. Florida Birth-Related Neurological Injury Compensation Association (Nica) Status: Closed DOAH Final Order on Thursday, June 30, 2016.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRANCE DRAKE, JR., a minor

child, by and through his next

friends, natural guardians and

natural parents, DESIREE LITTLE

and TERRANCE DRAKE; DESIREE

LITTLE, individually and as

mother of TERRANCE DR AKE, JR.;

and TERRANCE DRAKE et al.,

Petitioners,

vs. Case No. 15 - 4433N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION (NICA),

Respondent,

and

FOUNDATION FOR A HEALTHY ST.

PETERSBURG, INC., f/k/a BAYFRONT

MEDICAL CENTER, INC.; RICHARD

CRA IG BROWN, D.O.; DANIELO J.

ESCOTO, M.D.; WEST COAST

NEONATOLOGY, INC.; ALL

CHILDREN'S HOSPITAL; WOMEN'S

CARE FLORIDA, LLC; THOMAS

MCNEILL, M.D.; CARLOS REYES; AND

LUCINDA BOSLEY, CNM,

Intervenors.

_______________________________/

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 Association (NICA), on June 24, 2016.

STATEMENT OF THE CASE

On August 5, 2015, Petitioner, Terrance Drake, Jr.

(Terrance), a minor, by and through his next friends, natural

guardians and natural parents, Desiree Little and Terrance Drake,

filed a Petition for Benefits Pursuant to Florida Statute Section

766.301 et seq. (Petition), wi th the Division of Administrative

Hearings (DOAH). The Petition alleged that Terrance suffered

brain damage as the result of a birth - related neurological injury.

The Petition named Richard Craig Brown, D.O., as the

physician providing obstetric services a t the birth of Terrance at

Bayfront Medical Center, Inc., a/k/a Bayfront Baby Place, in

St. Petersburg, Florida, on April 27, 2012.

DOAH served NICA with a copy of the Petition on August 12,

2015. DOAH served Richard Craig Brown, D.O., on August 13, 2015.

DOAH served Bayfront Medical Center with a copy of the Petition on

August 17, 2015.

Motions to Intervene were filed by Danielo J. Escoto, M.D.;

West Coast Neonatology, Inc.; All ChildrenÓs Hospital, Foundation

for a Healthy St. Petersburg, Inc., f/k/a B ayfront Medical Center,

Inc. ; Richard Craig Brown, D.O. ; WomenÓs Care Florida, LLC ;

Thomas McNeill, M.D. ; Carlos Reyes, M.D. ; and Lucinda Bosley, CNM,

which were granted by Orders dated September 9 and 10, 2015.

On October 29, 2015, NICA filed a Response to Petition,

giving notice that the injury does not "meet the definition of a

'birth - related neurological injury' as that term is defined in

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

an injury to the brain or spinal cord caused by oxygen deprivation

or mechanical injury occurring in the course of labor, delivery,

or the immediate post delivery period as well as permanent and

substantial mental and physical impairment." NICA requested that

a hearing be scheduled to resolve whether t he claim was

compensable.

On June 20, 2016, Intervenors filed a Response to ALJ Order

indicating that Intervenors do not oppose NICAÓs determination

that this is not a compensable claim and that it does not appear

that a hearing is necessary. Petitioners Ó Response to ALJ Order

was filed on June 29, 2016, similarly stating that they do not

oppose NICAÓs determination that this is not a compensable claim

and agree that a hearing to determine compensability is not

necessary.

On June 24, 2016, NICA filed a M otion for Summary Final

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

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

Florida Statutes.

FINDINGS OF FACT

1. Terrance Drake, Jr., was born on April 27, 2012, at

Bayfront M edical Center in St. Petersburg, Florida.

2. Respondent retained Laufey Sigurdardottir, M.D.

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

Terrance. Dr. Sigurdardottir reviewed TerranceÓs medical

records, and performed an independent medic al examination on him

on October 14, 2015. In a neurology evaluation based upon this

examination and an extensive medical records review,

Dr. Sigurdardottir made the following findings and summarized her

evaluation as follows:

Summary: Here we have a 3 - year - 5 - month - old

boy with a near miraculous recovery after a

near fatal bradycardia due to likely

placental abruption during delivery. He is

at this time physically healthy but has a

mild microcephaly. He has no obvious motor

impairment and likely but n ot established

mild language delay. The patient is doing

well compared to his extremely dire situation

at birth.

Results as to question 1: The patient is

found to have no substantial physical or

mental impairment.

Results as to question 2: There is ev idence

of near terminal hypoxia at birth resulting

in infant being declared deceased, but self

resuscitation occurred followed by a period

of critical illness. Presumed hypoxic

neurologic injury is plausible and timing of

injury is in immediate perinatal period. No

evidence suggests his injury having occurred

apart from the immediate perinatal period.

Results as to question 3: We expect a full

life expectancy and an excellent prognosis,

although mild mental delays relating to

attention span, language, a nd/or behavior

cannot be ruled out at this time.

In light of the above - mentioned details, and

with lack of substantial physical and motor

impairment, I do not recommend Terrance being

included into the Neurologic Injury

Compensation Association (NICA) Prog ram and

would be happy to answer additional

questions.

3. Dr. SigurdardottirÓs opinion was affirmed in her

affidavit dated March 29, 2016.

4. In order for a birth - related injury to be compensable

under the NICA 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.

5. Dr. SigurdardottirÓs opinion that Terrance does not have

a substantial physical or mental impairment is credited.

6. 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. Sigurdardottir that Terrance does not have a

substantial physical or mental impairment.

CONCLUSIONS OF LAW

7. The Division o f Administrative Hearings has jurisdiction

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

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

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

compensation on a no - fault basis, for a limited cl ass 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 - relate d neurological injury" means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a multiple

gestation, a live infant weighing at least

2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired . This definition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality. (emphasis added).

9. 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. The Florida

Birth - Related Neurological Injury Compensation Association, which

administers the Plan, has "45 days from the date of service of a

complet e 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.

10. If NICA determines that the injury allege d 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 with the provisions of chapter 120, Florida Statutes.

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

11. In d ischarging 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 neurological injury. If the claimant

has demonstrated, to the satisf action 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

t he 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.

§ 766.30 9(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.

12. In the instant case, Petitioners Ó parents filed a claim

on his behalf alleging that Terrance did suffer a birth - related

neurological injury that is compensable under the NICA Plan. As

the proponent of the issue of compensability, the burd en 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 bef ore an

administrative tribunal.").

13. To be compensable under the NICA Plan, there must have

been an obstetrical event which resulted in loss of oxygen to the

babyÓs brain during labor, delivery, and continuing into the

immediate post delivery period, re sulting 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).

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

Terrance does not have a substantial mental or physical

impairment. Thus, Terrance is not entitled to benefits under the

Plan.

CONCLUSION

Based on the foregoing Findings o f Fact and Conclusions of

Law, it is ORDERED :

T hat the P etition filed by Terrance Drake, Jr., a minor, by

and through his next friends, natural guardians and natural

parents, Desiree Little and Terrance Drake, is dismissed with

prejudice.

DONE AND ORDERED this 30th day of June , 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 - 3 060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of June , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Relat ed Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5230)

David Ryan Best, Esquire

Best Law Firm Florida, P.A.

Post Office Box 3306

Orlando, Florid a 32802

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5247)

C. Howard Hunter, Esquire

Hill, Ward & Henderson, P.A.

Suite 3700

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5254)

David S. Nelson, E squire

La Cava and Jacobson, P.A.

Suite 2500

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5261)

Jeffrey Marc Goodis, Esquire

Goodis Thompson & Miller

Suite 1500

150 Second Avenue North

St. Petersburg, Florida 33701

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5278)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5285)

Amie Rice, Investi gation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0003 7652 5292)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administr ation

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5308)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court o f 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 n otice of a dministrative a ppeal

with the a gency c lerk of the Div ision of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Re lated Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).