16-003826N Resie Cadeau And Smith Francois, On Behalf Of And As Parents And Natural Guardians Of Reshnaya E. Francois, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 9, 2018.

Summary: Child does not have a permanent and substantial physical impairment. Therefore, she is not eligible for NICA benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RESIE CADEAU AND SMITH FRANCOIS,

on behalf of and as parents and

natural guardians of RESHNAYA E.

FRANCOIS, a minor,

Petitioners,

vs. Case No. 16 - 3826N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASS OCIATION,

Respondent,

and

BROWARD HEALTH CORAL SPRINGS,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order 1/ fi led on August 24, 2017, by Respondent,

Florida Birth - Related Neurological Injury Compensation

Association (NICA). Petitioners did not file a response to the

motion, and accordingly, on September 18, 2017, the undersigned

entered an Order to Show Cause, di recting Petitioners to show

cause within 10 days as to why the motion should not be granted.

No response to the Order to Show Cause has been filed as of the

date of this Order.

STATEMENT OF THE CASE

On July 7, 2016, Petitioners, Resie Cadeau and Smith

Fra ncois, on behalf of and as parents and natural guardians of

Reshnaya E. Francois (Reshnaya), a minor, filed a Petition

Pursuant to Florida Statute Section 766.301 et seq. (Petition)

with the Division of Administrative Hearings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan ( the Plan). The Petition

named Arif Wajid, M.D. (Dr. Wajid), as the physician who provided

obstetric services at the birth of Reshnaya on January 31, 2016,

at Broward He alth Coral Springs Hospital (Broward Health) in

Coral Springs, Florida.

DOAH served NICA, Broward Health, and Dr. Wajid with a copy

of the Petition on July 7, 2016.

On July 25, 2016, a Motion to Intervene was filed by Broward

Health. On August 9, 2016 , an Order was entered granting Broward

HealthÓs Motion to Intervene.

On August 24, 2017, NICA filed a Motion for Partial 2/

Summary Final Order on the issue of a birth - related neurological

injury. Through its motion, NICA requested the entry of a

s ummary f inal o rder determining that the claim is not compensable

under the Plan as a matter of law, and denying the Petition for

Benefits, with prejudice.

STATEMENT OF THE ISSUE

The issue in this case is whether Reshnaya E. Francois

suffered a birth - related inju ry as defined by section 766.302(2),

Florida Statutes, for which compensation should be awarded under

the Plan.

FINDINGS OF FACT

1 . Reshnaya E. Francois was born on January 31, 2016, at

Broward Health, in Coral Springs, Florida. Reshnaya weighed in

exces s of 2,500 grams at birth. The circumstances of the labor,

delivery, and birth of the minor child are reflected in the

medical records of Broward Health submitted with the Petition.

2 . At all times material, both Broward Health and Dr. Wajid

were active members under NICA pursuant to sections 766.302(6)

and (7).

3 . Reshnaya was delive red by Dr. Wajid, who was a NICA -

participating physician, on January 31, 2016.

4 . Petitioners contend that Reshnaya suffered a birth -

related neurological injury and seek co mpensation under the Plan.

Respondent contends that Reshnaya has not suffered a birth -

related neurological injury as defined by section 766.302(2).

5 . In order for a claim to be compensable under the Plan,

certain statutory requisites must be met. Secti on 766.309

provides:

(1) The Administrative Law Judge shall 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

satisfactio n 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 rebu ttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in

§ 766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immed iate 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.

(c) How much com pensation, if any, is

awardable pursuant to § 766.31.

(2) If the Administrative Law Judge

determines that the injury alleged is not a

birth - related neurological injury or that

obstetrical services were not delivered by a

participating physician at birth, she or he

shall enter an order . . . .

(3) The term Ðbirth - related neurological

injuryÑ is defined in Section 766.302(2),

Florida Statutes, as:

. . . injury to the brain or spinal cord of

a live infant weighing at least 2,500 grams

for a single gestati on 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 hospit al, 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).

6 . In the instant case, NICA has retained Donald

Willis, M.D. (Dr. Willis) , as its medical expert specializing in

maternal - fetal medicine and pediatric neurology. Upon

examination of the pertinent medical records, Dr. Willis opined:

The newborn was not depress ed. Apgar scores

were 8/8. Decreased movement of the right

arm was noted. The baby was taken to the

Mother Baby Unit and admission exam

described the baby as alert and active. The

baby had an ErbÓs palsy or Brachial Plexus

injury of the right arm. Cli nical

appearance of the baby suggested Down

syndrome.

Chromosome analysis was done for clinical

features suggestive of Down syndrome and

this genetic abnormality was confirmed.

Chromosome analysis was consistent with 47,

XX (Down syndrome).

Dr. Willis Ós medical Report is attached to his Affidavit. His

Affidavit reflects his ultimate opinion that:

In summary: Delivery was complicated by a

mild shoulder dystocia and resulting ErbÓs

palsy. There was no evidence of injury to

the spinal cord. The newbor n was not

depressed. Apgar scores were 8/9.

Chromosome analysis was consistent with Down

syndrome.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

during labor, delivery or t he immediate post

delivery period. The baby has a genetic or

chromosome abnormality, Down syndrome.

7 . 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. Willis. The opinion of Dr. Willis that Reshnaya

did not suffer an obstetrical event that resulted in loss of

oxygen or mechanical trauma to the babyÓs brain or spinal cord

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

credited.

8 . In the instant case, NICA has retained Michael S.

Duchowny, M.D. (Dr. Duchowny), as its medical expert in

pediatric neurology. Upon examination of the child and the

pertinent medical records, Dr. Duchowny opined:

In summary, ReshnayaÓs examination today

reveals findings consiste nt with Down

syndrome including multiple dysmorphic

features, hypotonia, and hyporeflexia. She

has minimal weakness at the right shoulder

girdle and her delayed motor milestones are

likely related to her underlying genetic

disorder. There are no focal o r

lateralizing features suggesting a

structural brain injury.

Dr. DuchownyÓs medical report is attached to his Affidavit. His

Affidavit reflects his ultimate opinion that:

Neither the findings on todayÓs evaluation

nor the medical record review indicate that

Reshnaya has either a substantial mental or

motor impairment acquired in the course of

labor or delivery. I believe that her

present neurological disability is more

likely related to Downs syndrome. For this

reason, I am not recommending that Reshn aya

be considered for compensation within the

NICA program.

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. Duchowny. The opinion of Dr. Duchowny that

Reshnaya did not su ffer a substantial mental or motor impairment

acquired in the course of labor or delivery is credited.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 766 .301 - 766.316, Fla. Stat.

11 . The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303 (1), Fla. Stat.

12 . 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. NIC A, 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 to submit relevant written

information relating to the issue of whether the injury is a

birth - related neurologica l injury." § 766.305(4), Fla. Stat.

13 . If NICA determines that the injury alleged in a claim

is a compensable brain - related neurological injury, it may award

compensation to the claimant, provided that the award is

approved by the Administrative Law Ju dge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. The Administrative Law

Judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the

claima nt 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 m entally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in

s. 766.303(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

sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating p hysician

at birth." § 766.31(1), Fla. Stat.

14 . The term "birth - related neurological injury" 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, delivery,

or resuscitation in the immediate

p ostdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired.

15 . In the instant case, Petitioners filed a claim

alleging that Reshnaya did sustain a birth - related neurological

injury that is compensable under the Plan. As the proponent of

the issue of compensability, the burden of proof is upon

Petitioner s . § 766.309(1)(a), Fla. Stat.; see also Balino v.

Dep't of HRS , 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' opinion that "[t]here was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spina l cord during labor, delivery

or the immediate post delivery period" and Dr. Duchowny's

opinion that Ð[n]either the findings on todayÓs evaluation nor

the medical record review indicate that Reshnaya has either a

substantial mental or motor impairment acqu ired in the course of

labor or delivery" are credited.

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

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. Fla.

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

Hearings , 686 So. 2d 1349 (Fla. 1997).

18 . The evidence in this case reveals that there have been

no expert opinions filed that are contrary to the opinion of

Drs. Willis and Duchowny that Reshnaya does not have a permanent

substantial mental or motor impairment acquired in the course of

labor or delivery. Thus, Reshnaya has not suffered a birth -

related neurological injury as defined by sectio n 766.302(2),

and is therefore not entitled to benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Petitioners, Resie

Cadeau and Smith Francois, on behalf of and as pa rents and

natural guardians of Reshnaya E. Francois, is dismissed with

prejudice.

DONE AND ORDERED this 9th day of January , 2018 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 9th day of January , 2 018 .

ENDNOTE S

1/ Although styled as a Motion for Partial Summary Final Order,

the motion seeks the entry of a Summary Final Order denying the

Petition for Benefits, as clarified in Paragraph 7 of the

motion.

2/ See Endnote 1.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7653 0029)

Resie Cadeau

Sm ith Francois

Apartment D - 3

550 Northeast 44th Street

Pompano Beach, Florida 33064

(Certified Mail No. 7015 0640 0003 7653 0036)

Steven M. Lury, Esquire

Sonneborn Rutter & Cooney, P.A.

1400 Centrepark Boulevard , Suite 400

West Palm Beach, Florida 33401

( eServed)

(Certified Mail No. 7015 0640 0003 7653 0043)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7015 0640 0003 7653 0050)

Amie Rice, Investigation Manager

Con sumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0003 7653 0067)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Driv e, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7653 0074)

Arif Wajid, M.D.

Suite 122

4400 West Sample Road

Coconut Creek, Florida 33073

(Certified Mail No. 7015 0640 0003 7653 00 81 )

NOTICE OF RIGHT TO JUDICI AL 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 proc eedings

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).