17-002303N Ashley Grant, On Behalf Of And As Parent And Natural Guardian Of Brooklyn Grant, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association
 Status: Closed
DOAH Final Order on Thursday, February 21, 2019.


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Summary: The child did not sustain a "birth-related neurological injury" as defined in section 766.302(2). Therefore, the child is not eligible for benefits under the NICA Plan.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ASHLEY GRANT, on behalf of and

14as parent and natural guardian

19of BROOKLYN GRANT, a minor,

24Petitioner,

25vs. Case No. 17 - 2303N

31FLORIDA BIRTH - RELATED

35NEUROLOGICAL INJURY COMPENSATION

38ASSOCIATION,

39Respondent,

40and

41WUESTHOFF MEDICAL CENTER -

45ROCKLEDGE; LAHNEEN MARIE

48SLANTIS, R.N.; AND CHG

52HEALTHCARE SERVICES, INC.,

55Intervenors.

56_______________________________/

57SUMMARY FINAL ORDER OF DISMISSAL

62This came before the undersigned on RespondentÓs Amended

70Response to Petition for Benefits, filed January 17, 2019. In

80its Amended Response, the Florida Birth - Related Neurological

89Injury Compensation Association ( NICA ) states that, following

98further review of additional documentation, incl uding school

106records and testing data, it has now concluded that Brooklyn

116Grant (Brooklyn) has not suffered a permanent and substantial

125mental impairment, and is therefore not a candidate for NICA

135compensation. Finally, the Amended Response represents tha t

143counsel for NICA has communicated NICAÓs current position on the

153issue of compensability to all parties and is authorized to

163represent that no party intends to challenge the position that

173the claim is not compensable.

178In response to NICAÓs new position that the subject claim

188is not compensable, on January 17, 2019, the undersigned issued

198an Order to Show Case, stating, inter alia:

206Within 10 days of the date of this Order,

215any party that opposes the dismissal of

222PetitionerÓs claim shall show cause in

228wri ting as to why PetitionerÓs claim should

236not be dismissed. The failure to timely

243respond to this Order will result in the

251dismissal of PetitionerÓs claim, with

256prejudice .

258As of the date of this Final Order, no party has filed a

271response to the Orde r to Show Cause indicating it intends to

283challenge NICAÓs determination of non - compensability.

290FINDINGS OF FACT

2931. Petitioner filed her Pe tition for Benefits on

302November 7, 2016.

3052. NICA reviewed the claim and initially responded by

314letter on Septem ber 25, 2017, indicating that it was of the

326opinion that Brooklyn Grant suffered a birth - related

335neurological injury as defined in s ection 766.302(2), Florida

344Statutes. In addition, NICA filed expert reports from

352Dr. Willis and Dr. Sigurdardottir in suppo rt of its position

363that the claim was compensable.

3683. Following NICAÓs initial review of the claim,

376additional information was provided to Dr. Sigurdardottir for

384further evaluation and consideration. Upon review and

391consideration of this additional information, Dr. Sigurdardottir

398issued an amended report dated December 28, 2018, in which she

409stated, ÐIn light of these results, I feel we cannot at this

421time determine that Brooklyn has a permanent substantial mental

430impairment and I feel she is therefo re not a candidate for NICA

443compensation.Ñ

4444. Based on Dr. SigurdardottirÓs opinion that Brooklyn

452does not have a permanent and substantial mental impairment,

461NICA is now of the opinion that her claim is not compensable

473because the NICA Plan (the Pla n) requires the child seeking

484compensation to have both a permanent and substantial physical

493impairment and a permanent and substantial mental impairment in

502order to qualify for compensation.

5075. No party has contested NICAÓs determination that the

516cl aim at issue is not compensable. Further, no party has

527offered evidence, in affidavit form or otherwise, to rebut

536NICAÓs determination in this regard.

541CONCLUSIONS OF LAW

5446. The Division of Administrative Hearings has

551jurisdiction over the parties to an d the subject matter of these

563proceedings. §§ 766.301 - 766.316, Fla. Stat.

5707. The Plan was established by the Legislature "for the

580purpose of providing compensation, irrespective of fault, for

588birth - related neurological injury claims" relating to bi rths

598occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

6098. The injured infant, her or his personal representative,

618parents, dependents, and next of kin may seek compensation under

628the Plan by filing a claim for compensation with the Div ision of

641Administrative Hearings . §§ 766.302(3), 766.303(2), and

648766.305(1), Fla. Stat. NICA, which administers the Plan, has

"65745 days from the date of service of a complete claim . . . in

672which to file a response to the petition and to submit relevant

684w ritten information relating to the issue of whether the injury

695is a birth - related neurological injury." § 766.305(4), Fla.

705Stat.

7069. If NICA determines that the injury alleged in a claim

717is a compensable birth - related neurological injury, it may awa rd

729compensation to the claimant, provided that the award is

738approved by the administrative law judge to whom the claim has

749been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

760NICA disputes the claim, as it has in the instant case, the

772dispute must be resolved by the assigned administrative law

781judge in accordance with the provisions of chapter 120, Florida

791Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

79910. In discharging this responsibility, the administrative

806law judge must make the following determination based upon the

816available evidence:

818(a) Whether the injury claimed is a birth -

827related neurological injury. If the

832claimant has demonstrated, to the

837satisfaction of the administrative law

842judge, that the infant has sustained a brain

850or spinal cord injury caused by oxygen

857deprivation or mechanical injury and that

863the infant was thereby rendered permanently

869and substantially mentally and physically

874impaired, a rebuttable presumption shall

879arise that the injury is a birth - related

888n eurolo gical injury as defined in

895s. 766.303(2).

897(b) Whether obstetrical services were

902delivered by a participating physician in

908the course of labor, delivery, or

914resuscitation in the immediate postdelivery

919period in a hospital; or by a certified

927nurse m idwife in a teaching hospital

934supervised by a participating physician in

940the course of labor, delivery, or

946resuscitation in the immediate postdelivery

951period in a hospital.

955§ 766.309(1), Fla. Stat. An award may be sustained only if the

967administrative la w judge concludes that the "infant has

976sustained a birth - related neurological injury and that

985obstetrical services were delivered by a participating physician

993at birth." § 766.31(1), Fla. Stat.

99911. The term "birth - related neurological injury" is

1008de fined in section 766.302(2) as follows:

"1015Birth - related neurological injury" means

1021injury to the brain or spinal cord of a live

1031infant weighing at least 2,500 grams for a

1040single gestation or, in the case of a

1048multiple gestation, a live infant weighing

1054at l east 2,000 grams at birth caused by

1064oxygen deprivation or mechanical injury

1069occurring in the course of labor, delivery,

1076or resuscitation in the immediate

1081postdelivery period in a hospital, which

1087renders the infant permanently and

1092substantially mentally and physically

1096impaired.

109712. The evidence, which is not refuted by any contrary

1107expert opinions, established that Brooklyn does not suffer from

1116a permanent and substantial mental impairment. Therefore,

1123Brooklyn is not eligible for be nefits under the Plan.

1133§§ 766.302(2) and 766.309(1), Fla. Stat.

1139CONCLUSION

1140Based upon the foregoing Findings of Fact and Conclusions

1149of Law, it is ORDERED that the Petition filed by Ashley Grant,

1161on behalf of and as parent and natural guardian of Brooklyn

1172Grant, a minor , is dismissed with prejudice.

1179DONE AND ORDERED this 21st day of February , 2019 , in

1189Tallahassee, Leon County, Florida.

1193S

1194W. DAVID WATKINS

1197Administrative Law Judge

1200Division of Administrative

1203Hearings

1204The DeSoto Building

12071 230 Apalachee Parkway

1211Tallahassee, Florida 32399 - 3060

1216(850) 488 - 9675

1220Fax Filing (850) 921 - 6847

1226www.doah.state.fl.us

1227Filed with the Clerk of the

1233Division of Administrative

1236Hearings

1237this 21st day of February , 2019 .

1244COPIES FURNISHED:

1246(via certified mail)

1249Kenney Shipley, Executive Director

1253Florida Birth Related Neurological

1257Injury Compensation Association

1260Suite 1

12622360 Christopher Place

1265Tallahassee, Florida 32308

1268(eServed)

1269(Certified Mail No. 7016 0910 0001 7987 8774)

1277Sean C. Domnick, Esquire

1281Domnick Cu nningham & whalen

1286Barnhart & Shipley, P.A.

12902401 PGA Boulevard

1293Palm Beach Gardens, Florida 33410

1298(eServed)

1299(Certified Mail No. 7016 0910 0001 7987 8781)

1307Michael R. D`Lugo, Esquire

1311Wicker, Smith, O`Hara, McCoy, Ford, P.A.

1317Suite 1000

1319390 North Orange A venue

1324Orlando, Florida 32802

1327(eServed)

1328(Certified Mail No. 7016 0910 0001 7987 8798)

1336M. Mark Bajalia, Esquire

1340Bajalia Law

1342Suite 301

134411512 Lake Mead Avenue

1348Jacksonville, Florida 32256

1351(eServed)

1352(Certified Mail No. 7016 0910 0001 7987 8804)

1360Brian Thomas Bellavia, Esquire

1364Quintairos, Prieto, Wood & Boyer, P.A.

1370Suite 900

1372255 South Orange Avenue

1376Orlando, Florida 32810

1379(eServed)

1380(Certified Mail No. 7016 0910 0001 7987 8811)

1388Amie Rice, Investigation Manager

1392Consumer Services Unit

1395Department of Health

13984052 Bald Cypress Way, Bin C - 75

1406Tallahassee, Florida 32399 - 3275

1411(Certified Mail No. 7016 0910 0001 7987 8828)

1419Mary C. Mayhew , Secretary

1423Health Quality Assurance

1426Agency for Health Care Administration

14312727 Mahan Drive, Mail Stop 1

1437Tallahassee, Florida 32308

1440(e Served)

1442(Certified Mail No. 7016 0910 0001 7987 8835)

1450Hae Soo Lim, M.D.

1454Suite 200

14563627 University Boulevard South

1460Jacksonville, Florida 32216

1463(Certified Mail No. 7016 0910 0001 7987 8842)

1471NOTICE OF RIGHT TO JUDICIAL REVIEW

1477Review of a final order of an administrative law judge shall be

1489by appeal to the District Court of Appeal pursuant to section

1500766.311(1), Florida Statutes. Review proceedings are governed

1507by the Florida Rules of Appellate Procedure. Such proceedings

1516are commenced by filing the or iginal n otice of a dministrative

1528a ppeal with the a gency c lerk of the Division of Administrative

1541Hearings within 30 days of rendition of the order to be

1552reviewed, and a copy, accompanied by filing fees prescribed by

1562law, with the clerk of the appropriate Dis trict Court of Appeal.

1574See § 766.311(1), Fla. Stat., and Fla. Birth - Related

1584Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

1594(Fla. 1st DCA 1992).

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Date
Proceedings
PDF:
Date: 04/03/2019
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 03/04/2019
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 03/01/2019
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 02/27/2019
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 02/27/2019
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 02/21/2019
Proceedings: DOAH Final Order
PDF:
Date: 02/21/2019
Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
PDF:
Date: 02/21/2019
Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
PDF:
Date: 02/21/2019
Proceedings: Summary Final Order of Dismissal. CASE CLOSED.
PDF:
Date: 01/17/2019
Proceedings: Order to Show Cause.
PDF:
Date: 01/17/2019
Proceedings: Amended Response to Petition for Benefits filed.
PDF:
Date: 12/07/2018
Proceedings: Notice of Cancellation of Deposition Duces Tecum filed.
PDF:
Date: 11/16/2018
Proceedings: Re-notice of Taking Videotaped Deposition- Duces Tecum filed.
PDF:
Date: 11/14/2018
Proceedings: Re-notice of Taking Deposition filed.
PDF:
Date: 10/16/2018
Proceedings: Re-notice of Taking Videotaped Depositions filed.
PDF:
Date: 10/15/2018
Proceedings: Order Rescheduling Hearing by Video Teleconference (hearing set for February 27, 2019; 9:30 a.m.; Daytona Beach and Tallahassee, FL).
PDF:
Date: 10/15/2018
Proceedings: Joint Response to Order Granting Continuance filed.
PDF:
Date: 10/01/2018
Proceedings: Order Granting Continuance (parties to advise status by October 11, 2018).
PDF:
Date: 09/27/2018
Proceedings: Notice of Cancellation of Videotaped Depositions filed.
PDF:
Date: 09/24/2018
Proceedings: Intervenors', Lahneen Marie Slantis, R.N. and CHG Healthcare Services, Inc., Notice of Joinder in Respondent, Florida Birth-Related Neurological Injury Compensation Association, Motion for Continuance filed.
PDF:
Date: 09/21/2018
Proceedings: Motion for Continuance filed.
PDF:
Date: 09/20/2018
Proceedings: Notice of Cancellation of Deposition filed.
PDF:
Date: 09/19/2018
Proceedings: Notice of Taking Videotaped Depositions filed.
PDF:
Date: 09/12/2018
Proceedings: Notice of Cancellation of Deposition of Donald Willis, M.D. filed.
PDF:
Date: 09/12/2018
Proceedings: Notice of Taking Deposition of Laufey YR Sigurdardottir, M.D. filed.
PDF:
Date: 08/31/2018
Proceedings: Petitioner's Notice of Serving Answers to Respondent's First Set of Interrogatories filed.
PDF:
Date: 08/17/2018
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 08/14/2018
Proceedings: Notice of Taking Deposition (Kyle Stromquist) filed.
PDF:
Date: 08/14/2018
Proceedings: Notice of Taking Deposition (Ashley Grant) filed.
PDF:
Date: 08/14/2018
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 08/02/2018
Proceedings: Notice of Service of First Interrogatories to Petitioners filed.
PDF:
Date: 08/02/2018
Proceedings: Amended Notice of Designation of Email Addresses filed.
PDF:
Date: 08/02/2018
Proceedings: Amended Motion to Intervene by Lahneen Marie Slantis, RN, and CHG Healthcare Services, Inc. filed.
PDF:
Date: 08/02/2018
Proceedings: Motion to Intervene by Lahneen Marie Slantis, RN, and CHG Healthcare Services, Inc. filed.
PDF:
Date: 08/02/2018
Proceedings: Notice of Designation of Email Addresses filed.
PDF:
Date: 07/30/2018
Proceedings: Notice of Appearance (Brian Bellavia) filed.
PDF:
Date: 05/14/2018
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 04/23/2018
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/23/2018
Proceedings: Notice of Hearing (hearing set for November 6, 2018; 9:00 a.m.; Daytona Beach, FL).
PDF:
Date: 04/20/2018
Proceedings: Joint Response to Order Granting Extension of Time and Requesting Status Report filed.
PDF:
Date: 04/16/2018
Proceedings: Notice of Appearance (M. Bajalia) filed.
PDF:
Date: 03/27/2018
Proceedings: Motion to Intervene by Wuesthoff Medical Center-Rockledge filed.
PDF:
Date: 03/09/2018
Proceedings: Order Granting Extension of Time.
PDF:
Date: 03/07/2018
Proceedings: Status Report filed.
PDF:
Date: 02/16/2018
Proceedings: Petitioner's Response to Respondent NICA's Offer of Benefits filed.
PDF:
Date: 09/25/2017
Proceedings: Motion for Entry of Protective Order Regarding Confidential Documents Related to Petitioner's Medical Records filed.
PDF:
Date: 09/19/2017
Proceedings: Order Granting Third Extension of Time.
PDF:
Date: 09/15/2017
Proceedings: Motion for Extension of Time in which to Respond to Petition filed.
PDF:
Date: 08/22/2017
Proceedings: Response to Respondent's Motion for Extension of Time filed.
PDF:
Date: 08/21/2017
Proceedings: Notice of Appearance (Sean Domnick) filed.
PDF:
Date: 08/17/2017
Proceedings: Order Granting Second Extension of Time.
PDF:
Date: 07/27/2017
Proceedings: Motion for Extension of Time in which to Respond to Petition filed.
PDF:
Date: 06/28/2017
Proceedings: Order Granting Extension of Time.
PDF:
Date: 06/15/2017
Proceedings: Order (Motion to accept K. Shipley as qualified representative granted).
PDF:
Date: 06/12/2017
Proceedings: Motion For Extension of Time in Which to Respond to Petition filed.
PDF:
Date: 06/02/2017
Proceedings: Motion to Act as Qualified Representative Before the Division of Administrative Hearings filed.
PDF:
Date: 05/22/2017
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 04/27/2017
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 04/26/2017
Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
PDF:
Date: 04/20/2017
Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
PDF:
Date: 04/20/2017
Proceedings: Letter to Kenney Shipley from Claudia Llado enclosing NICA claim for compensation.
PDF:
Date: 04/20/2017
Proceedings: Initial Order.
Date: 04/17/2017
Proceedings: Letter to Terri Dikko from Sean Domnick enclosing NICA filing fee (Check No. 3809; $15.00 filed (not available for viewing)
PDF:
Date: 11/16/2016
Proceedings: Letter to Ashley Grant from Terri Dikko regarding the filing fee.
PDF:
Date: 11/07/2016
Proceedings: Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. filed.

Case Information

Judge:
W. DAVID WATKINS
Date Filed:
04/17/2017
Date Assignment:
04/20/2017
Last Docket Entry:
04/03/2019
Location:
Daytona Beach, Florida
District:
Northern
Agency:
Florida Birth-Related Neurological Injury Compensation Associati
Suffix:
N
 

Counsels

Related Florida Statute(s) (9):