16-001391N Shannon Breen And Alexandra Zayas, On Behalf Of And As Parents And Natural Guardians Of Eleanor Breen Zayas, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, December 9, 2016.

Summary: The child does not have a substantial physical or mental impairment and is, therefore, not eligible for benefits under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHANNON BREEN AND ALEXANDRA

ZAYAS, on behalf of and as

parents and natural guardians of

ELEANOR BREEN ZAYAS, a minor,

Petitioners,

vs. Case No. 16 - 1391N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

AS SOCIATION,

Respondent,

and

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summar y Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

November 4, 2016.

STATEMENT OF THE CASE

On March 4, 2016, Petitioners, Shannon Breen and Alexandra

Zayas, on behalf of and as parents and natur al guardians of

Eleanor Breen Zayas, (Eleanor), a minor, filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition), with the Division of Administrative Hearings (DOAH).

The Petition alleged that Eleanor suffered brain da mage as the

result of a birth - related neurological injury.

The Petition named Scott Riddell, M.D., as the physician

providing obstetric services at the birth of Eleanor at University

of South Florida Health , South Tampa Center, in Tampa, Florida, on

May 8, 2015.

DOAH served NICA with a copy of the Petition on March 16,

2016. DOAH served Scott Riddell, M.D., and James Palmer, M.D.,

with a copy of the Petition on March 17, 2016. On March 21, 2016,

DOAH received a return receipt from the United States Postal

Service showing that Tampa General Hospital had been served with a

copy of the Petition.

A Motion to Intervene w as filed by the University of South

Florida Board of Trustees, which was granted by O rder dated

April 19, 2016. A s of the date of this Summa ry Final Order of

Dismissal, neither Dr. Riddell nor Dr. Palmer has petitioned to

intervene in this proceeding.

On August 24, 2016, NICA filed a Response to Petition, giving

notice that the injury does not "meet the definition of a 'birth -

related neurolo gical injury' Ñ as that term is defined in section

766.302(2), Florida Statutes, which specifically requires that the

injury render Ðthe infant permanently and substantially med ic ally

and physically impaired.Ñ NICA requested that a hearing be

scheduled to resolve whether the claim was compensable.

On September 7, 2016, NICA filed a letter indicating that the

parties were in agreement that a hearing to determine

compensability will not be necessary and that a motion for summary

final order will be forthcomi ng.

On November 4, 2016, NICA filed a Motion for Summary Final

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

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

Florida Statutes.

The Motion was served by United States mail on November 4,

2016. An Order to Show Cause was entered on November 17, 2016,

advising Petitioners to show cause in writing why RespondentÓs

Motion for Summary Final Order should not be granted. As of

todayÓs date, no response has been filed to the Motion for

Summary Final Order or to the Order to Show Cause.

FINDINGS OF FACT

1. Eleanor Breen Zayas was born on May 8, 2015, at

University of South Florida Health , South Tampa Center , in Tampa,

Florida.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA

to review the medical records for Eleanor . In a n affidavit dated

October 28 , 201 6 , Dr. Willis described his findings in pertinent

part as follows:

In summary, delivery was complicated by a

prolonged FHR deceleration about 8 hours

prior to delivery, maternal chrioamnionitis

and fetal tachycardia. Cesarean section was

done with thick Meconium present. The baby

was not depressed at birth. Cord blood gas

pH was normal (pH 7.36). However, oxygen

desaturation occurred at 5 hours after birth

with seizur e activity following shortly

after. MRI within 24 - hours of birth showed

acute cerebral infarction.

The baby suffered a cerebral infarction. The

exact timing of the infarction is difficult

to determine. However, it is possible the

infarction occurred du ring the severe and

prolonged FHR deceleration 8 hours prior to

birth. It appears the baby recovered from

this hypoxic event during the remaining 8

hours of labor. Therefore, the cord blood

gas was not abnormal at birth and the baby

was not depressed at birth. Infection

(Choriomnionitis) could be a contributing

factor. The other opinion would be the

infarct occurred after delivery, primarily

related to infection.

There was an apparent obstetrical event that

may have resulted in loss of oxygen to the

b abyÓs brain during labor. Oxygen

deprivation resulted in brain injury. I am

unable to comment about the severity of the

injury.

3. Dr. WillisÓ opinion that there was an apparent

obstetrical event that may have resulted in loss of oxygen to the

babyÓs brain during labor is credited.

4. Respondent retained Laufey Sigurdardottir, M.D.

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

Eleanor. Dr. Sigurdardottir reviewed EleanorÓs medical records,

and performed an independent medical examinatio n on her on

August 10, 2016. In a neurology evaluation based upon this

examination and a medical records review, Dr. Sigurdardottir made

the following findings and summarized her evaluation as follows:

Summary: Here we have a 14 - month - old girl

with a si nus vein thrombosis at birth, focal

seizures and possible subsequent infarction.

This is likely a birth related injury. Her

recovery has been remarkable and neurologic

exam today is suggestive of mild expressive

language delay, but no focal motor

abnorma lities are found.

Results as to Question 1: The patient is

found to have no substantial physical or

mental impairment at this time.

Results as to Question 2: EleanorÓs injury

is a neurologic injury to the brain occurred

[sic] due to oxygen deprivation and is felt

to be birth related.

Results as to Question 3: EleanorÓs

prognosis for full recovery is extremely good

and mild expressive delays are not likely to

have any lasting ill effect.

In light of the above - mentioned details,

although clear eviden ce is that EleanorÓs

infarct and thrombosis was due to a difficult

prolonged birth with chrioamnionitis and

recurrent decelerations, she has made such

good recovery that at this time I do not

recommend Eleanor being included into the

Neurologic Injury Comp ensation Association

(NICA) Program and would be happy to answer

additional questions.

5. 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.

Dr. SigurdardottirÓs opinion that Eleanor 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 Eleanor does not have a

substantial physical or mental impairment.

CONCLUSIONS OF LAW

7. 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).

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

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 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, del ivery, 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 Plan by filing a claim for compensation with DOAH.

§§ 766.30 2(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

whe ther the injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

10. 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 with the provisions of chapter 120, Florida Statutes.

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

11. In discharging this responsibility, the Administrative

Law Judge must make the following determinations based upon all

available e vidence:

(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 deprivati on 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

partici pating 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 bi rth - 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 filed a claim alleging

that Eleanor did suffer 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. 1 st DCA

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

asserting the affirmative of an issue before an administrative

tribunal.").

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

been an obstetrical event which resulted in los s of oxygen to the

babyÓs brain during labor, delivery, and continuing into the

immediate post - delivery period, resulting 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

Eleanor does not have a substantial mental or physical impa irment.

Thus, Eleanor 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 Shannon Breen and Alexandra

Zayas, on behalf of and parents and natural guardians of

Eleanor Breen Zayas, is dismissed with prejudice.

DONE AND ORDERED this 9th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrati ve 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 9th 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 0001 0080 3747)

Al exandra Zayas

Shannon Breen

1209 East Park Circle

Tampa, Florida 33604

(Certified Mail No. 7012 3050 0001 0080 3754)

Justine D. Adamski, Esquire

La Cava & Jacobson, P.A.

501 E ast Kennedy B oulevard , Suite 1250

Tampa, Florida 33602

(eServed)

(Certified Ma il No. 7012 3050 0001 0080 3761)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3778)

Amie Rice, Investigation Manager

Consumer Services Unit

Depar tment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0001 0080 3785)

Justin Senior , Interim Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Ta llahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0001 0080 3792)

Scott Ridell, M.D.

6th Floor

2 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7012 3050 0001 0080 3808)

James Palmer, M.D.

6th Floor

2 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7016 0910 0001 7980 9853)

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 St atutes. 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 Division 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 - Related Neurological

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

1992).