17-005569N Kara Reid And Bennet Reid, Individually And On Behalf Of Andrew G. Reid, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, May 9, 2018.

Summary: The infant did not sustain a permanent and substantial mental and physical impairment and is not eligible for benefits under the Plan.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KARA REID and BENNET REID,

Individually and on behalf of

ANDREW G. REID, a minor,

Petitioners,

vs. Case No. 17 - 5569N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

JOHN H. MARSTON, M.D.; WOMEN'S

CARE FLORIDA; AND ST. JOSEPH'S

HOSPITAL, INC. , d/b/a ST.

JOSEPH'S WOMEN'S HOSPITAL,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consi deration upon a n Unopposed

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on April 27, 2018. Neither Petitioners nor Intervenors

file d a response.

STATEMENT OF THE CASE

On S eptember 22, 2017, Petitioners 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 Com pensation Plan (Plan). The Petition named John H.

Marston, M.D., as the physician who provided obstetric services

for the birth of Andrew G. Reid (Andrew) o n May 2, 2015,

at St. JosephÓs WomenÓs Hospital in Tampa, Florida.

DOAH served NICA with a copy of the Petition on or before

October 23, 2017. Dr. Marston and St. JosephÓs WomenÓs Hospital

w ere served with a copy of the Petition on or before October 27

and November 16, 2017, respectively. On October 31, 2017,

Dr. Marston Ós and St. JosephÓs Hospita l, Inc. , d/b/a St. JosephÓs

WomenÓs Hospital Ós Petitions to Intervene were granted.

On March 30, 2018, NICA filed its Response to Petition for

Benefits, suggesting that the subject claim was not compensable

and requesting a final hearing to address said i ssue. On

April 2, 2018, the undersigned issued an O rder directing the

parties to confer and advise whether a final hearing would be

required. NICA filed a status report on April 12, 2018,

representing that, following a telephonic conference with all

cou nsel, none of the parties were requesting a final hearing.

On April 27, 2018, NICA filed an Unopposed Motion for

Summary Final Order, requesting that a summary final order be

entered finding that the claim is not compensable because Andrew

did not sustain a Ðbirth - related neurological injuryÑ as that

term is defined in section 766.302(2), Florida Statutes , and

dismissing the Petition. Said motion represents that Petitioners

and Intervenors Ðtake no position on this motion.Ñ As noted

above, Petitioners an d Intervenors did not file a response to the

motion.

FINDINGS OF FACT

1. Andrew was born on May 2, 2015, at St. JosephÓs WomenÓs

Hospital in Tampa, Florida.

2. NICA retained Donald Willis, M.D., an obstetrician

specializing in maternal - fetal medi cine, to review AndrewÓs

medical records 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 a report dated November 26, 2017, Dr. Willis concluded

the following:

There was no obstetrical event that resulted

in loss of oxygen or mechanical trauma to the

babyÓs brain during labor or delivery.

However, some oxygen deprivation was present

during the immediate post - delivery period.

Due to the essentially normal MRI report, I

would prefer to have Pediatric Neurology

discuss if any oxygen deprivation during the

immediate post - delivery period resulted in

brain injury.

4. At tached to NICAÓs Unopposed Motion for Summary Final

Order is the affidavit of Dr. Willis, dated April 23, 2018. In

his affidavit, Dr. Willis opines, based on his education,

training, and experience, and within a reasonable degree of

m edical probability, t hat there was no obstetrical event that

resulted in loss of oxygen or mechanical trauma to AndrewÓs brain

during the labor or delivery; however, some oxygen deprivation

was present during the immediate post - delivery period.

5. NICA also retained La ufey Y. Sigurdardottir, M.D., a

pediatric neurologist, to review AndrewÓs medical records, conduct

an 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 reviewed the available medical records,

obtained a full historical account from Petitioners, and conducted

an IME of Andrew on March 7, 2018.

6. Dr. SigurdardottirÓs IME report provides, in pa rt, as

follows:

Summary: Patient is a 2 - year - old with

history of neurologic depression at birth and

laboratory measurements suggestive of

asphyxia. Neonatal seizures were seen and

multisystem derangements noted. Patient had

hypotonia and required early intervention.

H e has made remarkable recovery and now has

mild delays in gross and fine motor skills

along with an expressive language disorder.

7. Dr. Sigurdardottir further concluded that, in review of

the available records, there is evidence o f impairment consistent

with a neurologic injury to the brain or spinal cord acquired due

to oxygen deprivation, and that the neurologic injury was felt to

be birth related. She further concluded that, at the time of the

IME, Andrew d id not have substanti al delays in motor and mental

abilities , and, therefore, does not fulfill the criteria of a

substantial mental and physical impairment.

8. RespondentÓs Unopposed Motion for Summary Final Order

also relies upon the attached affidavit of Dr. Sigurdard ottir,

dated April 17 , 2018. In her affidavit, she opines, based upon

her education, training, and experience, and to a reasonable

degree of medical probability, that Andrew Ðis not found to have

substantial delays in motor and mental abilities at this ti me.Ñ

9. 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

10. DOAH has jurisdiction over the pa rties 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" relati ng 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 DOA H.

§§ 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 information relating to

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

injury." § 766.305(4), Fla. Stat.

13. NICA has determined that Petitioners do not have a

claim that is compensable under the Plan and has filed a n

unopposed Motion for Summary Final Order, requesting that an

order be entered finding that the claim is not compensable.

1 4 . In ruling on the motion, the administrative law judge

must make the following determination based upon the available

evidence:

(a) Whether the injury claimed is a birth -

r elated 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 thereb y

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.

1 5 . The term "birth - related ne urological 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 l ive 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 su bstantially mentally

and physically impaired.

1 6 . The evidence establishe s that there was an obstetrical

event that resulted in loss of oxygen to AndrewÓs brain during

the immediate post - delivery period. The unrefuted evidence,

however, establishe s tha t Andrew did not sustain a permanent and

substantial mental and physical impairment. Thus, he did not

sustain a birth - related neurological injury as defined in

section 766.302(2), Florida Statutes, and, therefore, is not

eligible for benefits under the P lan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

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

DONE AND ORDERED this 9 th 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, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Divi sion of Administrative Hearings

this 9 th day of May , 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 9773 6635)

Craig M. Harris, Esquire

Trentalange & Kelley, P.A.

218 North Dale Mabry Highway

Tampa, Florida 33609

(Certified Mail Number 7018 0040 0000 9773 6642 )

Larry D. Hall, Esquire

Adams Hall S cieffelin & Smith, P.A.

Post Office Box 1090

Winter Park, Florida 32790

(eServed)

(Certified Mail Number 7018 0040 0000 9773 6659 )

Edwin P. Gale, Esquire

Josepher & Batteese, P.A.

Suite 630

500 North Westshore Boulevard

Tampa, Florida 33609

(eServed)

( Certified Mail Number 7018 0040 0000 9773 6666 )

Craig D. Miller, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail Number 7018 0040 0000 9773 6673 )

Brooke M. Gaffney, Esquire

Smith, Stou t, Bigman & Brock, P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail Number 7018 0040 0000 9773 6680 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 7 5

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9773 6697 )

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 9773 6703 )

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 go verned 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 revie wed, 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) .