17-004793N Lauren M. And Kristopher M. Shold, As Parents And Natural Guardians Of Amelia Ann Shold vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 23, 2018.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAUREN M. AND KRISTOPHER M.

SHOLD, as parents and natural

guardians of AMELIA ANN SHOLD,

Petitioners,

vs. Case No. 17 - 4793N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

BAPTIST HEALTH SYSTEM, INC.,

d/b/a BAPTIST MEDICAL CENTER,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon NICAÓs Unopposed

Motion for Summary F inal Order filed on October 15 , 201 8 , by

Respondent, Florida Birth - Related Neurological Injury Compensation

Association (NICA).

STATEMENT OF THE CASE

On August 9, 201 7 , Petitioner s , Lauren M. and Kristopher M.

Shold, on behalf of and as parents and natur al guardian s of Amelia

Ann Shold ( Amelia ), a minor, filed a Petition for Benefits

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 Bir th - Related

Neurological Injury Compensation Plan ( the Plan). The Petition

indicates in relevant part that the physician providing obstetric

services , and who was present at the birth , w as Staci

Tanouye, M.D., and that Amelia was delivered at Ba ptist Medi cal

Center (Baptist) on August 11, 2015.

DOAH served Baptist with a copy of the Petition on

September 1 , 201 7 . Dr. Tanouye was served with a copy of the

Petition on September 5, 2017, and NICA was served a copy of the

Petition on September 13, 2017.

On October 11 , 201 8 , NICA filed its Unopposed Motion for

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 as a

matter of law because Amelia did not suffer a birth - related

neurological injury as defined by section 766.302(2), Florida

Statutes , and denying the Petition for Benefits, with prejudice.

STATEMENT OF THE ISSUE

The issue in this case is whether Amelia Ann Shold s uffered a

birth - related injury as defined by section 766.302(2), Florida

Statutes, for which compensation should be awarded under the Plan.

FINDINGS OF FACT

1 . Amelia Ann Shold was born on August 11, 2015, at Baptist

Medical Center South located at 800 Prudential Drive,

Jacksonville, Florida 32207. The Petition alleged that the child

Ðsuffered from brain damage as a result of a prolonged second

stage labor.Ñ The circumstances of the labor, delivery , and birth

of the minor child are reflected in the med ical records submitted

to NICA in conjunction with the Petition.

2 . At all times material, both Baptist and Dr. Tanouye were

active members under NICA pursuant to section 766.302(6) and (7).

3 . Petitioner s contend that Amelia suffered a birth - related

neu rological injury and seek s compensation under the Plan.

Respondent contends that Amelia has not suffered a birth - related

neurological injury as defined by section 766.302(2).

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

certain statutory req uisites must be met. Section 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 demon strated, 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

mentally and physically impaired, a

rebuttable 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 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 h ospital.

* * *

(c) How much compensation, 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 . . . .

(Emphasis added).

5. The term Ðbirth - related neurological injuryÑ is defined

in s ection 766.302(2), Florida Statutes, as:

[I] njury to the brain or spinal cord of a

live infa nt 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

resuscita tion 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 geneti c

or congenital abnormality.

(Emphasis added).

6 . In the instant case, NICA has retained Laufey Y.

Sigurdardottir , M.D. (Dr. Sigurdardottir ) , as its medical expert

specializing in pediatric neurology.

7 . Dr. Sigurdardottir reviewed the medical record s and

conducted an in dependent medical examination (IME ) of the child

on November 16, 2017. Dr. Sigurdardottir subsequently rendered a

report and opined, in pertinent part, that:

Summary: Patient is a 2 - year - old girl with

history of neonatal focal seizur es and

evidence of subdural and intraventricular

hemorrhage along with several small foci of

diffusion restriction in left frontal lobe

after prolonged vaginal delivery. She has

had a good developmental trajectory and

currently exhibits mild right monopar esis and

a mild expressive language delay.

Substantial motor or mental delays are not

noted.

* * *

In light of evidence presented I believe

Amelia does not fulfill criteria of a

substantial mental and physical impairment at

this time. I do not feel tha t Amelia should

be included in the NICA program.

8 . 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 . The opinion of Dr. Sigurdardottir

that Amelia d oes no t suffer from a substantial mental and

physical impairment at this time is credited.

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has jurisdiction

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.

11 . 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. NICA,

which administer s 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 neurological

injury." § 766.3 05(4), Fla. Stat.

12 . 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 Judge to whom the cla im 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 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 that the infant was thereby

rendered permanently and substantially

mentally and physica lly 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 resu scitation

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 hospit al.

§ 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 physician at birth."

§ 766.31(1), Fla. Stat.

13 . 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

sin gle 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.

14 . In the instant case, Petitioner s file d a claim alleging

that Amelia 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.").

15 . Dr. Sigurdardottir 's opinion that Ð [ I ] n light of

evidence presented I believe Amelia does not fulfill criteria of

a substantial mental and physical impairment at this ti me. I do

not feel that Amelia should be included in the NICA program , " is

credited.

16 . 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 h ave 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).

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

no expert opi nions filed that are contrary to the opinion of

Dr. Sigurdardottir that Amelia does not have a substantial mental

or physical impairment acquired in the course of labor or

delivery. Thus, Amelia has not suffered a birth - related

neurological injury as def ined by section 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 Lauren M. and

Kristopher M. Shold, on behalf of and as parents and natura l

guardians of Amelia Ann Shold , a minor, is dismissed with

prejudice.

DONE AND ORDERED this 23rd day of October , 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 23rd day of October , 2018 .

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 9779 0408)

Matthew W. Sowell, Esquire

Terrell Hogan

233 East Bay Street, 8th Floor

Jacksonville, Florida 32202

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0415)

Jodi Barrett, Esquire

Hall Booth Smith, PC

Suite 109

4360 Northlake Boul evard

Palm Beach Gardens, Florida 33410

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0422)

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified Mail Number 7018 0040 0000 9779 043 9)

Allison C. McMillen, Esquire

McMillen Law Firm, P.A.

608 East Central Boulevard

Orlando, Florida 32801

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0446)

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 9779 0453)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0460)

Staci Tanouye, M.D.

North Florida OB/GYN, LLC

836 Prudential Drive, Suite 1103

Jacksonville, Florida 32207

(Certified Mail Number 7018 0040 0000 9779 0477)

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 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

cl erk 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).