17-001315N Jason Breiner And Wendy Ramirez-Mendoza, Individually And As Parents And Next Friends Of James Breiner, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, November 30, 2018.

Summary: There was not an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JASON BREINER and WENDY RAMIREZ -

MENDOZA, individually and as

parents and next friends of

JAMES BREINER, a minor,

Petitioner s ,

vs. Case No. 17 - 1315N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIA TION,

Respondent,

and

HERNANDO HMA, LLC , d/b/a

BAYFRONT HEALTH SPRING HILL,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This matter came before the undersigned on Respondent

Flori da Birth - Related Neurological Injury Compensation

AssociationÓs (NICA) Motion for Summary Final Order, filed May 4,

2018. Neither Petitioners nor Intervenor filed a response.

STATEMENT OF THE CASE

On February 23, 2017, Petitioners filed a Petition for

B enefits 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 (Plan). The

Petition nam ed Natalie Leibensperger, D.O., as the physician

providing obstetric services for the birth of James Breiner

(James) on February 25, 2012, at Bayfront Health Spring Hill

(Bayfront), in Spring Hill, Florida. 1 /

DOAH served NICA with a copy of the Petition o n March 3,

2017. Dr. Leibensperger and Bayfront were served with a copy of

the Petition on or before March 8, 2017. On March 9, 2017,

Hernando HMA, LLC , d/b/a Bayfront Health Spring Hill filed a

Petition for Limited Intervention. Said petition was grant ed on

March 16, 2017.

On June 30, 2017, NICA filed its Response to Petition for

Benefits, suggesting that the subject claim was not compensable

and requesting a final hearing to address said issue. On July 3,

2017, the undersigned issued an O rder direct ing the parties to

confer and advise the undersigned, on or before July 18, 2017, as

to the need for a hearing. Thereafter, Petitioners requested an

extension of time to respond, and the extension was granted. On

August 21, 2017, Petitioners filed a resp onse to the prior O rder

indicating that a hearing would be needed to determine the issue

of compensability.

On October 10, 2017, Petitioners Ó counsel filed a motion for

leave to withdraw as counsel, and an O rder granting the same and

placing the case in abeyance was issued on October 24, 2017. On

December 15, 2017, at PetitionersÓ request, the matter was

continued in abeyance. The matter remained in abeyance, without

opposition to allow Petitioners the opportunity to obtain new

counsel.

Following a tel ephonic status conference on February 23,

2018, the undersigned issued an O rder whereby the matter was no

longer in abeyance and ordering the parties to provide hearing

dates on or before March 2, 2018. Ultimately, the matter was

scheduled for final heari ng on June 6, 2018.

On May 4, 2018, NICA filed its Motion for Summary Final

Order, requesting that a summary final order be entered finding

that the claim is not compensable because James did not sustain a

Ðbirth - related neurological injuryÑ as that term is defined in

section 766.302(2), Florida Statutes, and dismissing the

Petition. Petitioners did not timely respond to said motion. On

May 18, 2018, the undersigned issued an Order to Show Cause.

Said order directed Petitioners to show cause, in writin g, on or

before May 30, 2018, why NICAÓs Motion for Summary Final Order

should not be granted. Petitioner s did not respond to the Order

to Show Cause. As noted above, Intervenor did not file a

response to NICAÓs motion.

FINDINGS OF FACT

1. James w as born on February 25, 2012, at Bayfront in

Spring Hill, Florida.

2. NICA retained Donald Willis, M.D., who is b oard -

c ertified in obstetrics, gynecology, and maternal - fetal medicine,

to review the medical records of Wendy Ramirez - Mendoza and James ,

and opine as to whether there was an injury to his brain or

spinal cord that occurred in the course of labor, delivery, or

resuscitation in the immediate post - delivery period due to oxygen

deprivation or mechanical injury.

3. In Dr. WillisÓs fina l report, dated June 12, 2017, he

concluded the following:

In summary, the baby was delivered at term

and was not depressed at birth. Apgar scores

were 8/8. The baby was transferred to the

newborn nursery with the mother. Episodes of

cyanosis occurred in the nursery, followed

intermittent twitching. Head Ultrasound was

normal. CT and MRI did not suggest hypoxic

brain injury. EEG was normal.

There was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

injury to the brain or spinal cord .

4. Attached to NICAÓs Motion for Summary Final Order is the

affidavit of Dr. Willis, dated May 2, 2018. In his affidavit

Dr. Willis affirms his prior reports and opines within a

reasonable degree of medical probability that there was no

obstetrical event that resulted in oxygen deprivation or

mechanical injury to JamesÓs brain or spinal cord.

5. NICA also retained Laufey Y. Sigurdardottir, M.D., who

is board - c ertified in pediatrics, psychiatry, and neurology, to

review the pertinent medical records, conduct and Independent

Medical Examination (IME), and opine as to whether he suffers

from a permanent and substantial mental and physical impairment

as a result of a birth - related neurological injury.

Dr. Sigurdardottir revie wed the available medical records,

obtained a historical account from Petitioners, and conducted an

IME of James on April 19, 2017.

6. Dr. SiguradottirÓs affidavit, dated May 1, 2018,

attached to NICAÓs Motion for Summary Final Order, provides, in

part, as follows:

Summary: James is a 5 yr old boy with motor

and speech delay from birth. There is no

documented fetal depression at birth, and FHR

tracings from the onset of induction of labor

fails to show heart rate decelerations.

Respiratory distr ess after birth and ensuing

hypotonia and feeding difficulties point to

patientÓs difficulties to have apparent from

birth but timing of insult is not found to

correlate with active labor or delivery. His

current status suggests moderate to severe

neurolo gical deficits that are likely to be

lifelong. It is of note that limited records

were available for my review after patientÓs

transfer to ACH. If there are forwarded to

NICA I would be able to review them and make

appropriate adjustments to this IME.

James is found to have a permanent and

substantial physical impairment at this time.

He is found to have a permanent and

substantial language/cognitive impairment at

this time.

In review of available documents, although

having respiratory distress short ly after

birth, there is no clear acute hypoxic event

during labor and/or delivery, and fetal

hearth [sic] rate strips were benign. MRI

performed in the neonatal period, EEG

performed in the neonatal period did not

support an acute encephalopathy (per rep ort).

No laboratory evidence of multisystem hypoxic

changes were noted in post natal period.

The prognosis for full motor and mental

recovery is poor but his life expectancy is

full.

Due to absence of evidence of hypoxic event

during active labor, ab sence of secondary

findings supportive of a hypoxic

encephalopathy (MRI, laboratory or EEG), I do

not feel James should be included in the NICA

program.

7. Dr. SigurdardottirÓs opinions contained in her affidavit

are within a reasonable degree of m edical probability.

8. A review of the file reveals that no contrary evidence

was presented to refute the findings and opinions of Dr. Willis

and Dr. Sigurdardottir. Their unrefuted opinions are credited.

CONCLUSIONS OF LAW

9. DOAH has jurisdict ion over the parties to and the

subject matter of these proceedings. §§ 766.301 - 766.316,

Fla. Stat.

10. 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.

1 1 . 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 compen sation 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 to submit relevant written informati on relating to

the issue of whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

12. NICA has determined that Petitioners do not have a

claim that is compensable under the Plan and has filed an

unopposed Motion for Summa ry Final Order, requesting that an

order be entered finding that the claim is not compensable.

13. In ruling on the motion, the administrative law judge

must make the following threshold determination based upon the

available evidence:

(a) Whether the in jury 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 t hat 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. 766.303(2).

§ 766.309(1), Fla. Stat.

14. T he 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 postdelivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

15. The evidence establishes that James sustained an injury

that rendered him permanently and substantially mentally and

physically impaired. The unrefuted evidence, however,

establ ishes that there was not an injury to the brain or spinal

cord caused by oxygen deprivation or mechanical injury occurring

in the course of labor, delivery, or resuscitation in the

immediate post - delivery period. Thus, James did not sustain a

birth - relate d neurological injury a s defined in section

766.302(2) and, therefore, is not eligible for benefits under the

Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition is dismissed with prejudice.

D ONE AND ORDERED this 31st day of May , 2018 , in Tallahassee,

Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 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 31st day of May , 2018 .

ENDNOTE

1/ According to the Petition, at the time of the birth, Bayfront

Health Spring Hill was known as Spring Hill Regional Hospital.

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 Number 7018 0040 0000 9773 6895)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail Number 7018 0040 0000 9773 6901)

Jason Breiner

Wendy Ramire z - Mendoza

14607 Copeland Way

Brooksville, Florida 34604

(Certified Mail Number 7018 0040 0000 9772 5714 )

John David Gallagher

Fulmer, Leroy & Albee, P.L.L.C.

Suite 100

11300 4th Street North

St. Petersburg, Florida 33716

(eServed)

(Certified Mail Number 7018 0040 0000 9772 5721 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9772 5738 )

Justin Senior , Secretary

Health Qua lity Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9772 5745 )

Natalie Leibensperger, D.O.

11175 County Line Road

Spring Hill, Florida 34609

(Certi fied Mail Number 7018 0040 0000 977 2 5752

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 proceeding s are governed 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 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 D CA

1992).