16-004253N Asia Adger And Dontae Bess, Sr., On Behalf Of And As Parents And Natural Guardians Of Dontae Bess, Jr., A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, February 17, 2017.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASIA ADGER and DONTAE BESS, SR.,

on behalf of and as parents and

natural guardians of DONTAE

BESS, JR., a minor,

Petitioners,

vs. Case No. 16 - 4253N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIA TION,

Respondent.

_______________________________/

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 Association (NICA), on

February 2, 2017.

STATEMENT OF THE CASE

On July 1 5 , 2016, Petitioners, Asia Adger and Dontae Bess,

Sr., on behalf of and as parents and natural guardians of Dontae

Bess, Jr. (Dontae), a minor, filed a Petition Under Pro test

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

with the Division of Administrative Hearings (DOAH).

The Petition named Jennifer Ivy, ARNP ; Sheri Small, ARNP ; and

Jill Hendry, CNM, as the persons providing obstetric services at

the birth of Dontae at Lakeland Hills Medical Center in Lakeland,

Florida, on July 21, 2011.

DOAH served NICA with a copy of the Petition on August 1,

2016. DOAH served Jill Henry, ARNP, with a copy of the Petition

on August 1, 2016. DOAH served Lakeland R egional Hospital with a

copy of the Petition on August 4, 2016. DOAH served Sheri Shree

Small, ARNP, with a copy of the Petition on August 23, 2016. DOAH

mailed copies of the Petition to Jennifer Ivey, ARNP , on August 1

and 19, 2016. However, these enve lopes were returned to DOAH

stamped ÐReturn to Sender, Unable to Forward.Ñ

On October 21, 2016, NICA filed a response to the Petition,

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

'birth - related neurological injury' as defined in secti on

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

injury render 'the infant permanently and substantially mentally

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

scheduled to resolve whether the claim was compensable.

On February 2, 2017, NICA filed a Motion for Summary Final

Order, asserting that Dontae 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 motion was filed by

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

and asserted that Petitioners are not claimants.

FINDINGS OF FACT

1. Dontae Bess, Jr., was born on July 21, 2011, at Lakeland

Regional Medical Center in Lakeland, Florida.

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

review DontaeÓs medical records. In a medical report dated

August 19, 2016, Dr. Willis made the following findings and

expressed the following opinion:

Spontaneous vaginal delivery was without

difficulty. Birth weig ht was 3,220 grams.

The baby was not depressed. Apgar scores were

9/9. No resuscitation was required at birth.

The baby went to the normal newborn nursery

and had an uncomplicated newborn hospital

course with discharge on DOL 2.

The child had developm ental delays. MRI was

done at 5 years of age and was Ðunremarkable.Ñ

In summary, pregnancy was induced for

hypertension at term. There was no fetal

distress during labor and the baby was not

depressed at birth. The newborn hospital

course was benign. MRI at 5 years of age did

not suggest brain injury.

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 the immediate post

delivery period.

3. Dr. Will is reaffirmed his opinion in an affidavit dated

January 26, 2017.

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

that resulted in loss of oxygen or mechanical trauma to the

babyÓs brain or spinal cord 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

Dontae. Dr. Sigurdardottir reviewed DontaeÓs medical records,

and performed an independent medical examina tion on him on

September 21, 2016. Dr. Sigurdardottir made the following

findings and summarized her evaluation as follows:

Summary: Dontae is a 5 - year 2 - month - old

African - American male who is brought to the

visit for an independent medical examination

on his developmental delays. On review of

his prenatal and birth history, I do not see

any evidence of a likely hypoxic injury. He

was born healthy and had no complications in

the immediate postnatal period. He has then

progressed to have mild gross mo tor delay and

a quite significant language delay, although

he is at this time in a regular education

kindergarten. Neuroimaging did not show

evidence of significant ischemic injury.

Result as to question 1: The patient is

found to have no substantial physical

impairment, but to have a substantial

language impairment at this time.

Results as to question 2: There is no

evidence in the medical record review of a

substantial hypoxic event during labor or

delivery, the infant had no signs of an

encephalop athy in the immediate post natal

period and no evidence of ischemic injury on

neuroimaging. His language delay is not felt

to be birth - related.

Results as to question 3: DontaeÓs prognosis

for life expectancy is excellent and for full

recovery is good.

I n light of the above - mentioned details and

the lack of any evidence to suggest a birth

related hypoxic injury, I do not recommend

Dontae being included in the Neurologic

Injury Compensation program, and I would be

happy to answer additional questions.

6 . Dr. Sigurdardottir reaffirmed her opinions in an

affidavit dated January 20, 2017.

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

under the Florida Birth - Related Neurological Injury Compensation

Plan ( Plan ) , the injury must meet the definiti on 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 Dontae has a

substantial language impairment, he has no substantial physica l

impairment, 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. Sigurdardottir that Dontae does not have a

substantial physical 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. The Plan was established by the Legislature "to provide

compensation on a no - fault ba sis, 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 fo llows:

"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 postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired . This defin ition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality.

12. The injured infant, her or his personal representative,

parents, dependents, and next of kin, may seek compensation under

t he P lan 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.

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

a compensable birth - related neurological injur y, 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.

14. In discharging this responsibility, the Administrative

Law Judge m ust 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 satisfaction of the

administrative law judge, that the infant has

su stained 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

the immediate postdelivery period in a

hospital; or by a certif ied 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

Admini strative 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 clai m seeking a

determination of whether Dontae sustained a birth - related

neurological injury that is compensable under the NICA P lan. 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 & Rehabilitative 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 establis hed that there was no apparent

obstetrical event which resulted in oxygen deprivation or

mechanical trauma to the babyÓs brain or spinal cord during labor,

delivery and the immediate post - delivery period.

17. Further, had there been a birth - related neur ological

injury, the remaining issue to be determined is whether any such

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).

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

Donte does not have a permanent and substantial physical

impairment. Thus, Dontae is not e ntitled 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 Asia Adger and Dontae Bass, Sr.,

on behalf of and as parents and natural guardians of Dontae Bass,

Jr ., is dismissed with prejudice.

DONE AND ORDERED this 17th day of February , 2017 , 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 17th day of February , 2017 .

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. 7014 2120 0003 1053 2030)

Brent R. Bigger, Esquire

Knopf B igger

Suite 450

511 West Bay Street

Tampa, Florida 33606

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2047)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7014 212 0 0003 1053 2054)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 2061)

Justin Senior , Secretary

Health Quality Assuranc e

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 2078)

Lakeland Regional Medical Center

Attention: Risk Management

1324 Lakeland Hills Boulevard

Lakeland, Florida 33805

(Certified Mail No. 7014 2120 0003 1053 2085)

Jennifer Ivy, ARNP

Suite 205

1118 South Orange Avenue

Orlando, Florida 32806

(Certified Mail No. 7014 2120 0003 1053 2092)

Sheri Shree Small, ARNP

Central Florida Health Care

1729 Lakeland Hil ls Boulevard

Lakeland, Florida 33805

(Certified Mail No. 7014 2120 0003 1053 2108)

Jill Hendry, ARNP

Lakeland OB/GYN

1733 Lakeland Hills Boulevard

Lakeland, Florida 33805

(Certified Mail No. 7014 2120 0003 1053 2115)

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 governed by

the Florida Rules of Appellate Procedure. Such proceedings a re

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 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).