17-005571N Alejandro Abarca And Ana Paulino, As Parent And Natural Guardian Of Ian Abarca, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, November 24, 2020.

Summary: Petitioners claim determined to be non-compensable; intervenor satisfied notice requirements.

For Intervenor: Louis La Cava, Esquire

Mark R. Messerschmidt, Esquire

La Cava Jacobson & Goodis, P A

Suite 1250

501 East Kennedy Boulevard Tampa, Florida 33602

S TATEMENT O F T HE I SSUES

For the purpose of determining compensability, whether the injury

claimed is a birth - related neurological injury and whether obstetrical services

were delivered by a participating physician in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the hospital; and

whether notice was accorded to the patient, as contemplated by section

766.316, Florida Statutes, or whether the failure t o give notice was excused

because the patient had an emergency medical condition, as defined in

section 395.002(8), Florida Statutes, or the giving of notice was not

practicable.

P RELIMINARY S TATEMENT

On October 2, 2017, Petitioners filed a pro se Petitio n for Benefits

Pursuant to Florida St atute Section 766.301 et seq. ( Petition) with DOAH for

a determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan ( Plan ) .

The Petition na med Michael R. DeNardis, D.O. ( Dr. De N ardis), as the

physician who provided obstetrical services during the birth of Ian Abarca

(Ian) on September 28, 2016, at O sceola Regional Medical Center (O RMC ) in

Kissimmee, Florida.

On October 19, 2017, DOAH mailed a copy of the Petition to Responde nt ,

the Florida Birth - Related Neurological Injury Compensation Association

(NICA) , as well as Dr. De N ardis and ORMC by certified mail. The certified

receipts indicate the same was served on Dr. De N ardis on

October 20, 2017 , and ORMC on October 23, 2017. R espondent was served on

or before November 16, 2017.

On November 2, 2017, ORMC filed a Motion to Intervene that was

granted on November 14, 2017. On December 11, 2017, Respondent moved

for additional time in which to respond to the Petition. On December 19 ,

2017 , that Motion was granted.

On January 24, 2018, Respondent filed its Response to the Petition,

suggesting that the subject claim was not compensable because Ian had not

suffered a birth - related neurological injury , and requested a final hearing t o

address said issue. On January 25, 2018, an O rder requiring the parties to

advise as to the need for a final hearing was entered. After several

unsuccessful attempts to receive communication from Petitioners, on May 25,

2018 , a t elephon ic status conferen ce was held. Petitioners chose not to attend

same. On May 31, 2018, Intervenor and Respondent provided dates for a final

hearing to occur in December 2018.

On June 22, 2018, Intervenor filed an Application for Discovery, which

was granted on June 25, 201 8. Several days later, Intervenor propounded

written discovery on Petitioners, including interrogatories, and then

requested dates for the deposition of Petitioners and a medical examination

of Ian. On September 6, 2018, Intervenor filed a Motion to Appear and Show

Cause and Motion to Compel Petitioners’ Depositions, Answers to

Interrogatories, and Production of the Minor for Independent Medical

Examination.

On September 12, 2018, counsel for Petitioners filed an appearance and

requested additional time t o respond to Intervenor’s discovery. On

September 18, 2018, an Order granting Intervenor’s Motion, in part, and

denying Petitioners’ request for additional time was entered where the

undersigned required the Petitioners to “properly respond or object to a ll

outstanding discovery within thirty (30) days.”

On October 18, 2018, Petitioners served Answers to Intervenor s

Interrogatories. On November 13, 2018, Intervenor filed its notice of taking

the depositions of Petitioners . On December 21, 2018, Petitione rs served

Amended Answers to ORMC’s Interrogatories. On January 16, 2019,

Petitioners appeared for depositions and provided testimony. The next day,

on January 17, 2019, Petitioners filed an Amended Petition “under protest.”

On January 31, 2019, Intervenor filed a Motion to Compel Discovery and

Motion for Sanctions, which was amended on February 13, 2019.

On February 14, 2019, a telephonic hearing on Intervenor’s Amended

Motion to Compel Discovery and Motion for Sanctions was held. On

February 18, 2019, a n Order Accepting the Amended Petition and an Order

on Intervenor’s Motion to Compel Discovery and Motion for Sanctions related

to written discovery were entered.

On April 26, 2019, I an presented to a C ompulsory Medical Examination

( CME) with Maria Gieron , M.D., Intervenor’s pediatric neurology expert. On

May 6, 2019, Dr. Laufey Siguardardottir , M.D., provided deposition

testimony on behalf of Respondent .

On June 14, 2019, this matter was first scheduled for final hearing to

occur on October 2 and 3, 201 9, pursuant to a Notice of Hearing. However,

the final hearing was continued secondary to outstanding discovery and the

unavailability of counsel. After several additional continuances, th e final

hearing was rescheduled via Zoom Conference to occur on Sept ember 1, 2020.

On August 28, 2020, the parties’ Joint Pre - Hearing Stipulation was filed.

The final hearing proc e ed ed , as scheduled, on September 1, 2020. At the final

hearing, the parties moved, without objection, for the admission of the following exhibi ts: Joint Exhibit Numbers 1 through 11; Respondent’s Exhibit

Numbers 1 through 6; and Intervenor’s Exhibit Numbers 1 through 2 1 ,

and 23 through 25. Said exhibits were admitted.

The parties further mutually agreed to the admission of the stipulated

fact s as set forth in Paragraph 5 of the parties’ Joint Pre - Hearing Stipulation.

Testimony was received from Dr. Sigurdardottir. In lieu of presenting additional live testimony, the parties stipulated and mutually agreed to the

presentation of their respective cases solely by the admission of the

afo rementioned exhibits, which included transcripts of witness depositions,

and the presentation of a closing argument.

Upon the conclusion of the final hearing, the parties stipulated to the

submission of proposed f inal orders within 30 days of the filing of the

transcript and to the issuance of the undersigned’s Final Order on or before

60 days from the filing of the transcript. The transcript was filed on

September 23, 2020. Respondent and Intervenor timely filed p roposed final

orders, which have been considered in the preparation of this Final Order.

F INDINGS O F F ACT

Pursuant to the parties’ Joint Pre - Hearing Stipulation, the F indings of

F act set forth verbatim in paragraphs 1 through 5 are stipulated to by the

p arties.

1. Ian was born alive on September 28, 2016 .

2. Ian was a single gestation, weighing 2 , 620 grams at birth .

3. Ian was born at O RMC , which was and is a NICA participant .

4. Dr. DeNardis, the delivering physician, was a NICA p articipant at the

time of birth.

5. Resident physicians, Nnenna J. Maduforo, D.O. , and Samantha

Bunting, D.O., who assisted in the delivery, were exempt from the NICA

assessment, pur suant to section 766.314(4)(a) .

Compensability :

6. Petitioner , Ana Paulino, presented to ORMC at 37 to 38 weeks

gestational age with complaints of numbness of the right arm and face and a

headache and was a dmitted for hypertension. She was placed on a fetal heart

rate monitor , which failed to detect heart tones . Ian was then delivered by

emergent Cesa rean section after a placental abruption.

7. Ian was severely depressed at birth . At one minute of life, Ian’s Apgar

score was 0. 1 The Apgar score was also 0 at 5 and 10 minutes with

resuscitative efforts. By 15 minutes, his Apgar score was 2 out of 10.

8. Ian required cardiorespiratory resuscitation, including positive pressure

ventilation, chest compressions , and intravenous epineph r i n e. A heart rate of

80 bpm was noted at 15 minutes of life. Initial blood sugar measurements

were undetectable.

9. He was quickly transferred from the operating room to the neonatal

intensive care unit (NICU). The attending neonatologist, Ronald B. Holtzman, M.D.’s plan was to transfer Ian t o Nemours Children’s Hospital

( Nemours) for ongoing hypothermia treatment. At the tim e of the transfer,

Dr. Holtzman’s Clinical Note stated, in pertinent part, as follows:

Hyp oxic - Ischemic Encephalopathy [(

infant was delivered by emergency cesarean section

1 An Apgar Score is a numerical expression of the condition of the newborn and reflects the

sum total of points gained on an assessment of heart rate, respiratory effort, muscl e tone,

reflex irritability, and color. See Bennett v. St. Vincent’s Med. Ctr., Inc. , 71 So 3d 828, 848 n.2

(Fla. 2011).

following an apparent abruptio n placenta and fetal

bradycardia. He may have been bradycardic for as

long as 25 minutes before he responded to high

dose epinephrine. He has no spontaneous

respirations or movements, absent tone and

reflexes. Assessment: severe HIE sufficiently

severe to meet criteria for hypothermia treatment.

Infant is at risk for brain injury, as well as multi -

system organ injury .

10. Ian arrived at Nemours’ NICU later in the evening on September 28,

2016. As documented on the History and Physical, Ian’s diagnosis included

hypoxic ischemic encephalopathy ( HI E ) with the plan for neurology

consultation.

11. The initial neurology consultation was performed by Matthias Zinn,

M.D., on September 29, 2016. The History of Present Illness documented “[a]

head ultrasound shows possible early swelling in the basal gang lia. He is

noted to be very tremulous.” Upon arrival, Ian was placed on video

electroencephalography ( EEG) monitoring that demonstrated seizure

activity. Dr. Zinn’s assessment was severe HIE with multifocal seizures .

12. On October 3, 2016, an MRI of Ian’s brain was performed at Nemours.

The i mpression of that study included “Symmetrical areas of restricted

diffusion involving bilateral thalami, corpus callosum, dorsal brainstem as

well as the cortex/subcortical white matter of bilateral posterior parietal and

occipital lobes, in keeping with changes related to hypoxic ischemic injury.”

13. On October 10, 2016 , Dr. Siguardardottir , who is board certified in

child neurology and pediatrics, evaluated Ian at Nemours as an attending

pediatric neurology speciali st. At that time, she recommended decreasing

anti - seizure medication . Dr. Siguardardottir discussed the “very abnormal”

MRI results from the October 3, 2016, MRI with Petitioners and documented

her diagnosis of severe HIE and neonatal seizures.

14. On Oct ober 16, 2016, another neonatologist, Yahdira Pardo Rodriguez,

M.D., documented as follows:

Follow up EEG [wa]s completed [on] 10/14 and

revealed “The background activity is significant for the presence of dysmaturity, primarily in the form

of excessive d iscontinuity, indicating a widespread

area of cortical or subcortical dysfunction as may be

present in the setting of a severe nonspecific

encephalopathy. No clinical, electrographic or

electroclinical seizures are present during this

study. In comparison to prior studies, there is

decreasing interburst intervals during

discontinuity of the background activity.”

15. Following his discharge, Ian began seeing Pilar Gonzales, M.D., a

pediatrician, on November 9, 2016. Dr. Gonzales diagnosed, among other

thin gs, microcephaly and referred Ian to physical therapy (PT) , occupatio nal

therapy, and speech therapy. Ian was enrolled in outpatient PT through

Nemours with the goals of treatment to have the a bility to sit independently

in six months, lie prone for up to two hours daily, roll prone to supine and

vice versa, and to hold his head midline while prone.

16. On June 2, 2017, after completing eight sessions, Ian was discharged

from PT. The progress note, completed by Amber Yampolsky, physical

therapist , documente d that Ms. Paulino was “pleased with how well Ian is

doing and very thankful.” It was noted that he had met his goals with respect

to rolling supine to and from prone independently; sitting independently

while holding toys; and reaching for toys elevated o ff the surface in prone.

Ms. Yampolsky’s assessment provided as follows:

Ian is demonstrating appropriate emerging skills

for transitions in/out of side sitting, belly crawling,

and quadruped. His ankle dorsiflexors are still stiff/tight but it is improv ing. He is demonstrating

age appropriate stationary and locomotion gross

motor skills based on Peabody standardized

testing. Since his emerging skills are also

appropriate, it is felt that patient no longer

requires further PT treatment. Given his birth

hi story, he will require continuing monitoring by

family and his pediatrician and if any issues or

concerns arise, he should be re - evaluated in PT.

17. During his newborn hospital course testing, it was suspected that Ian

exhibited bilateral sensorineural hearing loss (SNHL). On December 30,

2016, Ian was diagnosed with m ild SNHL in both ears . At four months old, on

February 6, 2017, h e was fitted for hearing aids .

18. On October 23, 2018, Chelsea McNee, Au.D., a pediatric audiologist

with Nemours, conduct ed a follow - up auditory examination. She documented

that, as of that date, Ian had “[m]oderate to moderately - severe hearing loss

from 500 - 4000 Hz in right ear and mild to moderate hearing loss from 500 -

4000 Hz in left ear.” She recommended, inter alia, tha t he wear both hearing

aids during all waking hours and to continue auditory verbal therapy.

19. As noted above, Ian was referred for a speech and language evaluation

by Dr. Gon zales. The first evaluation was conducted by Kelly Komisaruk, a

speech languag e pathologist ( SLP ) , on December 8, 2016, when Ian was

approximately two and a half months old. At that time, Ms. Komisaruk’s

evaluation summary documented that, Ian “is developing well at this time

regarding language and feedings skill,” and recommended r epeat testing in

six months to one year.

20. On June 21, 2018, when Ian was approximately 20 months old, he

began speech language and pathology treatment with Elizabeth Hernandez -

DeJesus, SLP. In her summary findings, Ms. Hernandez - DeJesus

documented, in p ertinent part, as follows:

Evaluation findings: Ian is a 20 month old male

with a communication delay secondary to bilateral

sensorineural hearing loss. When compared to

same aged peers who have typi cal hearing, Ian

presents with: auditory perception defi cits,

receptive language skills that are mildly delayed,

expressive language skills that are moderately

delayed. . . .

Functional Limitation: Ian had difficulty with

Communication/Self Direction/Interpersonal Skills due to auditory perception deficits, p oor

comprehension, limited expressive skills, and

limited phonemic repertoire.

21. At the time of the evaluation, Ms. Hernandez - DeJesus established

short and long - term goals designed to address his auditory, receptive

language, and expressive language sk ills. A review of th e PT records reveals

that he had made little improvement. Indeed, as of September 10, 2019,

Ms. Hernandez - DeJesus documented that Ian had not met the goals she had

established 15 months prior.

Retained Experts :

22. Respondent retained Ronald Willis, M.D., a board certified

obstetrician and gynecologist specializing in maternal - fetal medicine, to

review Ian’s medical records and opine as to whether he has sustained an

injury to his brain in the course of labor, delivery, or in the immed iate post -

delivery period due to oxygen deprivation or mechanical injury. On or about

November 13, 2017, Dr. Willis completed his records review and authored a report that included his findings and opinions. The summary section of his

report provides as fo llows:

In summary, the mother had a placental abruption

at 37 to 38 weeks gestational age. The baby was

severely depressed at birth with Apgar scores of 0/0/0. The newborn hospital course was complicated by multi - system organ failures. MRI was consistent

with HIE.

It does not appear the mother was in labor at time of placental abruption. This was based on no reported complaint of abdominal pain and the Labor and Delivery Summary stating there was “no

labor.” I was not able to find a cervical exam for the

mother on admission. This would not be unexpected based on the history of fetal bradycardia in Triage and being rushed for emergency delivery.

Placental abruption occurred prior to onset of labor.

Although some oxygen deprivation likely occurred prior to delivery, the oxygen deprivation continued

during delivery and continuing into the post

delivery period. The oxygen deprivation resulted in

brain injury. I am not able to comment about the

severity of the injury.

23. Dr. Willis was deposed on February 1 9, 2019, and testified that the

findings and opinions contained in his report were accurate. Specifically, he

opined that there was an injury to Ian’s brain associated with oxygen

deprivation that occurred during the course of delivery or resuscitation of the

infant during the immediate post - delivery period; and that the same occurred

in a hospital. Dr. Willis further opined that Ian weighed over 2 , 500 grams at

the time of birth and that the brain injury was not due to any genetic abnormality.

24. When que stioned regarding the degree that Ian was depressed at

birth, the following exchange occurred:

Q. All right. So the baby’s born and then we do resuscitation measures, including positive pressure

– pressure ventilation, chest compression,

epinephrine, rig ht?

A. Correct.

Q. So would it be fair to say in layman’s terms that

this child was born basically dead and they resuscitated the child back to life?

A. Yes. The baby was born with no heartbeat and

was resuscitated back to life, yes.

Q. And if the b aby was not resuscitated back to life

this baby would have been pronounced dead, right?

A. Yes; in all likelihood, that’s correct.

* * *

Q . Apgar scores were 0 upon birth, right?

A. Correct.

Q. And that’s at birth or a minute post birth, 0, 0,

0, 2?

A. That would be at 1 minute, 5 minutes, and 10

minutes; and then at 15 minutes, the baby had a

heartbeat.

* * *

Q. Well, they brought the baby back to life at 15 minutes wi th all kinds of resuscitation measures,

right?

A. Right. So during that time period, I mean, there

is no – there is no detectable heart rate, but they

are doing resuscitation, so there is blood flow circulating during that time. But the initial heart

rate was – the spontaneous heart rate was detected

at 15 minutes.

25. The unders igned finds that Dr. Willis possesses significant education,

training, and expertise and is well - qualified and credentialed to render the

above - no ted opinions. The undersigned finds his opinions as stated above to

be credible.

26. Following Ian’s discharg e from Nemours, Dr. Siguardardottir

continued to follow him on an outpatient basis on several occasions from

November 14, 2016 , through November 2, 2017. On his last visit,

Dr. Siguardardottir documented her findings, in part, as follows:

Ian Paulino is a 13 - month - old, ex - 27 - week infant

with severe HIE and neonatal seizures who

presents for follow up. All has been w ell and he is

developing well. He is off the PHB and the

caretakers have not seen any recent seizure like

events. He is now crawling and pull ing to stand. He

was discharged from PT here at NCH, but is now

not receiving any therapy.

* * *

. . . The patient did have significant neurologic

abnormalities throughout his stay. A brain MRI

showed severe abnormalities, including a subacute

extra - axi al hematoma in the right occipital regions

and restricted diffusion. An EEG did show seizure

activity. Follow up MRI did show significant

improvement in diffusion restriction.

* * *

Hearing testing was attempted but he failed and has now been diagnosed with hearing loss and uses

hearing aids, something that is likely to be a

permanent need.

* * *

Examination: Ian is a beautiful, non - dysmorphic

boy, but his head circumference is small. His anterior fontanelle is very small, and there is some overridin g of sutures. . . .

* * *

Neurologic Examination: Mental Status: The patient is awake and alert and does exhibit visual

fixation and full tracking. He seems to hold his

head at midline, with no tendency to lay with it over to the right or the left.

Cr anial Nerves: He has intact oculocephalic

reflexes and a good suck and swallow. He does not

look to sounds from stratus translation device. Motor exam reveals normal axial muscle tone.

There is no slip through on vertical suspension. He

can grab for toys a nd rolls over and sits unassisted.

He can crawl and even pull to stand. DTRs are

normal.

Assessment and Plan: Here, we have a youngster

with an emergent birth after a placental abruption,

leading to severe hypoxic ischemic encephalopathy

(HIE). At this t ime, he seems to be developing well.

I will ask mom to call Early Steps for an

evaluation, although it is not clear that he will

qualify for services.

27. Subsequent to her role as a treating physician for Ian, Respondent

retained Dr. S igurdardottir to r eview the available medical records, conduct a

neurological examination, and opine as to whether Ian met the criteria for a

birth - related neurological injury . Dr. Sigurdardottir conducted her

examination of Ian on January 10, 2018, when he was approximatel y 15

months old. Dr. Sigurdardottir’s report begins with a summary of the subject

pregnancy and birth, then provides the following developmental history:

Ian had delays in gross motor milestones but showed good progress and was discharged from

NCH PT in June 2007 at age 9 months. Disc harge

describes him as follows: “Ian is demonstrating

appropriate emerging skills for transitions in/out of

side sitting, belly crawling, and quadruped. His ankle dorsiflexors are still stiff/tight but it is

improving. He is demonstrating age appropriate

stationary and locomotion gross motor skills based

on Peabody standardized testing. Since his emerging skills are also appropriate, it is felt that

patient no longer requires further PT treatment.”

He currently walks unassiste d (skill developed at

14 months of age). He can finger feed himself and

drinks from bottle. He has one word “NaNa,” will shake his head for no and open palms for yes. He

will not follow verbal commands but looks to voice

and is interested in his siblings. He was evaluated

with Bayley Scales of infant and toddler

development [sic] (3rd edition) at age 4 months in NICU developmental clinic and found to have

emerging skills with total raw scores 4 - 5 in areas of

cognitive, receptive communication, expressive

co mmunication, fine motor and gross motor

domains. Apart from developmental concerns

patient has been diagnosed with sensorineural

hearing loss and currently wears and benefits from hearing aids.

28. Dr. Sigurdardottir’s report memorialized the neurologica l examination

as follows:

Mental Status: The patient is awake and alert and

does not exhibit visual fixation and full tracking.

He does have verbalization but is mostly roaming

exam room. He does look to voice. His hearing aids

were not in place. No repe titive behavior, no

following of verbal commands other than to give high five, wave bye bye and clap.

Cranial Nerves: He has intact oculocephalic

reflexes and conjugate voluntary eye movements, no nystagmus. Motor exam reveals normal axial muscle tone. T here is no slip through on vertical

suspension. He can grab for toys and manipulate

them in age appropriate manner and does prefer to

grab toys with left. Gait is unsteady at times and

he does trip frequently. DTRs are normal.

29. Dr. Sigurdardottir’s re port included the following summary:

Summary: Patient is a 15 month old with history of being born at 37 weeks after sudden placental abruption, loss of fetal heart tones requiring a

hyperacute cesarean section. Severe birth asphyxia

was well documented, requiring full

cardiorespiratory resuscitation, completion of

cooling protocol and patient exhibited multisystem organ failure and neonatal seizures as a

consequence. The patient had early delays in

development but has been discharged from therapy

and cur rently has only mild delays in expressive

language. I cannot establish a substantial mental or motor disability at this time.

Result as to question 1: Ian is not found to have

substantial delays in motor and mental abilities.

Result as to question 2: I n review of available

documents, there is evidence of impairment

consistent with a neurologic injury to the brain or

spinal cord acquired due to oxygen deprivation or

mechanical injury. It seems unclear if the mother

was in active labor at the time of plac ental

abruption but it is clear that the event was

progressing after the mother presented to ORMC

with complaints of abdominal pain. I would

consider this event a birth related event.

Result as to ques tion 3: The prognosis for full motor

and mental recov ery is fair and the life expectancy

is full.

In light of evidence presented I believe Ian does not fulfill criteria of a substantial mental and physical

impairment at this time. Therefore I do not feel

that Ian should be included in the NICA program. I a m available for any additional questions, or to

review additional medical records if needed.

30. Based on the above - quoted findings and opinions, Respondent’s

Response to the Petition suggested that, based on its review of the claim, Ian

had not suffered a “birth - related neurological injury,” as defined in

section 766.302(2), and, therefore, the claim was not compensable under the

Plan.

31. Dr. Sigurdardottir was deposed on May 6, 2019, and testified that the

findings and opinions contained in her repor t were accurate at the time of the

examination. She testified that she had not examined Ian subsequent to the examination and possessed no additional knowledge of his condition.

Accordingly, she opined, to a reasonable degree of medical probability that, a t

the time of the examination, Ian had not sustained a permanent and

substantial mental or physical impairment. She further opined that there

was no evidence that Ian’s injuries were sustained due to any genetic or

congenital abnormality.

32. When questi oned concerning her opinion that Ian did not fulfill

the criteria of a permanent and s ubstantial physical impairment,

Dr. Sigurdardottir was asked to define those terms. The following exchange

transpired:

Q. What is your definition of a physical

impairme nt?

A. So a physical impairment is inability to do the

age appropriate fine and gross motor skills.

* * *

Q. How about hearing loss, is that a physical impairment?

A. That is considered a physical impairment, yes.

* * *

Q. How about when we were t alking about before

that hearing loss is a physical impairment?

A. Yeah, it just would not bring you in to a substantial physical impairment or motor

impairment.

* * *

Q. Okay. Why do you believe that hearing loss is

not substantial?

A. It’s – a sub stantial physical impairment renders

– in my opinion, renders the person totally unable

to take care of their physical needs. And I do not believe hearing impairment or total hearing loss renders one unable to take care of themselves.

33. Subsequent to h er deposition, Dr. Sigurdardottir was provided with

additional medical treatment records, as well as two videos of Ian. At final

hearing, based on her review of the additional information and the passage of

time, Dr. Sigurdardottir opined that Ian does, in fact, have a permanent and

substantial mental impair ment.

34. At hearing, Dr. Sigurdardottir defined “mental impairment” as

intellectual disability, which includes verbal, nonverbal, and adaptive

functioning. Clinically, she explained that she uses the t erms “mild,”

“moderate,” “severe , ” and “profound” when describing the range of

intellectual disabilities. She further testified that the term “substantial” in this context would fall on the spectrum from severe and into the profound.

She also defined “subs tantial” as “significantly great.”

35. Dr. Sigurdardottir testified that the records demonstrate that the

trajectory of Ian’s language acquisition is poor. Additionally, she opined that

Ian possesses autistic features, which were “possibly slightly emergi ng” at

the time of her IME, and have now become “very clear based on the record.”

36. Her opinion, however, remained consistent with her prior testimony

regarding physical impairment. She continued to opine that Ian does not

have a permanent and substanti al physical impairment. At hearing, she

defined “physical impairment” as follows:

So, a physical impairment is when you do not have

control of or ability to use your muscles in, sort of, the activities of daily living and that that compromises your abilit y to take care of yourself in

an age - dependent kind of manner. Obviously, when

you are small, you do less for yourself than later on.

37. She further agreed that a physical impairment is the inability to do

age - appropriate fine and gross motor skills; how ever, the inability would

need to be severe.

38. Ian is not substantially physically impaired, in her opinion, because :

1) he has been observed manipulating toys in an age - appropriate manner;

2) he was discharged from PT at Nemours; 3) his performance, at 31 months,

on the Peabody Motor Skills Test (a standardized assessment of motor

abilities) , concluded that he was average in his movements and stationary

abilities; 4) his performance on the Ages and Stages questionnaire (which

addresses fine and gross motor skills, personal/social skills, and

communication) that was provided by his primary care physician concluded

that his gross motor function was “actually just fine” and his fine motor skills

were right below average; and 5) the video of his examinatio n by Dr. Gieron,

demonstrates that his gross and fine motor skills are not an issue.

39. Dr. Sigurdardottir conceded that Ian’s hearing loss is a physical

impairment that is permanent; however, she opined that she does not

consider the hearing loss (stand ing alone) to satisfy the criteria for a

substantial physical impairment.

40. The undersigned finds that Dr. Sigurdardottir possesses significant

education, training, and expertise and is well - qualified and credentialed to

render the above - no ted opinions. The undersigned finds her opinions as

stated above to be credible.

41. Intervenor retained Dr. Gieron, who is board certified in psychiatry

and neurology (with a special competence in pediatric neurology), to conduct

an independent medical examination of Ian and opine as to whether his

medical/neurological impairment was consistent with injury to the brain or

spinal cord acquired due to oxygen deprivation or mechanical injury; and to

establish if he suffers from a permanent and substantial mental and phys ical

impairment.

42. After reviewing pertinent medical records, Dr. Gieron conducted the

examination on April 26, 2019, when Ian was approximately 31 months old.

Based on the records reviewed, information obtained from Mr. Abarca, and

her observations, Dr . Gieron noted the following developmental history:

Physical development:

Walks, runs, climbs on chair, jumps, throws/catches

the ball and runs after it. Unable to walk upstairs

alternating feet, does not help in

dressing/undressing, or feeding self.

Language and speech:

Says single words like “mom” and “dad , ” no

phrases, doesn’t follow directions, is not

understandable, does not ask questions, but

communicates with hands touching the parents.

Fine motor skills:

Builds tower of 9 cubes, scribble s, plays with cars

“dragging” them on the floor, but doesn’t imitate

vertical, horizontal, or circular lines, drinks from a cup.

Social/emotional:

Interacts with siblings playing with them with cars and ball, doesn’t eat with utensils, grabs food with

ha nds and puts to his mouth in large quantities.

Cannot tell when he needs a diaper change. Plays

video games on iPhone, watches TV and plays with

cars and ball. Shows emotions and easily gets angry.

Cognitive:

Does not understand the concept of one item or

thing, does not follow one step directions.

Overall, the father feels that Ian is slow in his development and does not progress any more.

43. With respect to the neurological examination, which Dr. Gieron noted

was “difficult to perform due to lang uage barrier and behavior,” she

documented the following:

Alert, on - the go in examining room. He didn’t make

eye contact with the examiner.

His vision was functional, pupils were equal and

reactive to light. Facial sensation normal, facial movements we re symmetrical and full. Hearing

could not be tested, but when the hearing aids were

removed, he responded to a rattle sound. The

tongue movements were normal.

On musculoskeletal/motor examination: muscle

bulk was normal, tone was decreased at the

shoul der girdle. His strength based on observation

of function was normal. He was able to climb a

chair, walk and run.

Coordination:

He was unable to point to small objects, push a button with one finger, scribble circular lines, or

copy straight lines.

D eep tendon reflexes were 3 biceps, 3 patellar,

2 ankles.

Sensation was normal to touch.

During the period of examination, there were occasions when he would put his hands in front of

him with palms down and look at them (reportedly

common behavior r eported by the father).

44. In summary, Dr. Gieron opined that Ian was “found to have a physical

and mental impairment, which with reasonable degree of medical probability,

is substantial and permanent.” She also opined that “[t]he birth medical

records provide substantial evidence of impairment consistent with injury to

the brain acquired during oxygen deprivation caused by placental abruption.”

45. Dr. Gieron was deposed on December 13, 2019. Consistent with her

report, Dr. Gieron testified that it is her opinion within a reasonable degree

of medical probability that Ian has permanent and substantial mental and

physical impairments. Dr. Gieron provided the following definition of the

phrase substantial impairment:

Well, substantial means that the patie nt cannot

perform the activities of daily living without

support, that needs various resources to be able to

– to have normal life, which often includes therapies

or may include some devices. That’s what I’m –

that’s what I mean by substantial.

46. In supp ort of the opinion that Ian is substantially and permanently

physically impaired, she opined that he “doesn’t do things that are age

appropriate,” such as: 1) walking stairs with alternating feet; 2) walking

normally; 3) pushing a button with one finger; 4 ) draw a single straight line

or circle; and 5) walk backwards upon command. Additionally, she opined that Ian has not made substantial progress in his physical development

subsequent to the examination performed by Dr. Sigurdardottir. Moreover,

she opine d that, based on the history as provided by Petitioners, Ian does not

use his hands to do small things such as holding utensils to feed himself,

crayons, or push buttons.

47. Dr. Gieron opined that Ian’s physical skills range from that of an 18

month to 24 month - old child. She found that he was at least two standard

deviations below the normal upon examination. Finally, with respect to his

physical condition, Dr. Gieron testified, that he “very likely would not

progress beyond the present level.”

48. Dr. G ieron’s opinion that Ian is substantially and permanently

mentally impaired is primarily supported by his markedly delayed language

and speech development. She also testified that he is significantly delayed in

social interactions and adaptive development.

49. Dr. Gieron co ncurred with the opinions of Dr . Willis and

Dr. Sigurdardottir that Ian suffered a permanent injury to the brain from

lack of oxygen during birth, and that the placental abruption was the cause of

Ian’s lack of oxygenation prior to birt h.

50. Due to the evidentiary presentation, the undersigned was unable to

observe Ian at the final hearing. In considering whether Ian is substantially

and permanently physically impaired, the undersigned finds persuasive the

video recording of Dr. Gieron ’s examination. The video evidence clearly

demonstrates Ian performing various tasks to which Dr. Gieron either did not observe or testified that he could not perform. Specifically, Ian is observed

walking backwards, walking in a normal manner, and utilizi ng his fingers.

51. The video establishes that Ian fail ed to follow or complete most of

Dr. Gieron’s requested tasks while she was performing the official examination; however, it is far from clear that Ian lacks the physical ability

to perform the reque sted physical tasks. Indeed, Ian wa s observed stacking

numerous urine sample cups in a vertical column; positioning and climbing

upon and balancing on an office chair with rollers; walking normally;

running; turning on and off the light switch; moving chai rs independently;

mock playing with a computer keyboard and mouse; and opening and closing

the examination door (upon command). Although difficult to determine

precisely, it also appears that Ian also used his father’s cell phone by opening

the screen with one finger.

52. The undersigned finds that Dr. Gieron possesses significant education,

training, and expertise and is well - qualified and credentialed to render the

above - noted testimony. Her opinion that Ian suffered an injury to his brain

ca used by oxyg en deprivation or mechanical injury occurring in the course of

delivery, or resuscitation in the immediate post - delivery period in a hospital

is credited. Additionally, her ultimate opinion that Ian has sustained a

substantial and permanent mental impairme nt is also credited. The

undersigned finds, however, her opinion that Ian sustained a substantial and

permanent physical impairment to be less persuasive.

Family testimony :

53. Petitioner, Ana Paulino, was deposed on January 16, 2019, when Ian

was approxi mately 28 months old. Ms. Paulino testified that, in her opinion,

Ian has a substantial mental impairment. She testified that he does not

comprehend when things are said to him and that he is unable to

communicate orally. At the time of the deposition, Ms. Paulino testified that

Ian only spoke one word, “Mommy.” According to Ms. Paulino, Ian is able to

communicate with her and the other members of the family by using his

hands. She explained that “[he] touches me or gets near me and he touches

me, he slaps my thigh.”

54. With respect to his physical condition, Ms. Paulino testified that Ian

does have hearing loss that she believes to be permanent. Although she

testified that he does not have motor skill issues concerning picking things up

and putting food t o his mouth, he does not feed himself with utensils. She

testified that she feeds Ian everything. When asked if he is able to feed

himself with his fingers or hands, she replied “[i]t’s possible and it may not be

possible.” She testified that Ian likes to play with a ball and cars. He is able

to throw, catch, and run after a ball.

55. Petitioner, Alejandro Abarca, was deposed on January 16, 2019. He

has been informed that Ian has permanent hearing loss; however, he does not believe it is a substantial inj ury. With respect to his physical condition,

Mr. Abarca testified that “[p]hysical, he’s good. He can run. He doing everything. You know, he play with me and everything.” He also testifies that

he plays with the phone.

56. Mr. Abarca explained that Ian d rinks on his own from a sippy cup;

however, he needs assistance feeding. Mr. Abarca testified that he and

Ms. Paulino are scared that he may choke and, therefore, mash his solid food

and feed him slowly.

57. Concerning his mental condition, Mr. Abarca te stified that Ian is

“slow” in oral communication, which was his primary developmental concern.

While Mr. Abarca testified that Ian plays with the phone, he was unsure how

much he understands. Ian is able to communicate his needs with his hands

by touching. For example if he wants milk, Ian will touch the person’s leg and

point to the refrigerator.

Notice 2 :

58. On September 8, 2016, Ms. Paulino presented to the emergency room

at ORMC. The medical records from that visit include an ORMC document

entitled “Ack nowledgement of Patient’s Receipt of Birth Related Neurological

Injury Compensation Plan Brochure (NICA).” This form provided the

following:

1. I acknowledge that I have received the Florida

Birth Related Neurological Injury Compensation

Plan brochure.

2. I acknowledge and understand that I may contact the Florida Birth Related Neurological Injury Compensation Association about the details

of the plan at 1 - 800 - 398 - 2129.

59. Immediately below the above - quoted language are lines for “Print

Name,” “Date,” and “Signature.” The undersigned finds that the signature is

that of Ms. Paulino. Although Ms. Paulino testified at her deposition that the

signature was not hers, the undersigned finds her testimony not credible on this issue.

60. Ms. Paulino’s signatur e on the NICA Form and additional documents

dated September 8, 2016, were witnessed by Irene Aviles , an ORMC

registrar . Ms. Aviles ’s job was “to collect the demographic information, along

with the insurance information, emergency contact, and proceed with the collecting signatures [for] the documentation.” During Ms. Aviles’ s deposition

on June 19, 2020, she testified definitively that she was present when

Ms. Paulino signed the NICA Form and that the signature belonged to

2 Paragraph 2 of the parties Joint Pre - Hearing Stipulation provides that “[i]t is Petitioners’

position that the notice requirements o f section 766.316, Florida Statues were not satisfied.”

In Paragraph 7, the parties represent that “whether notice of NICA participation was given

or excused, pursuant to section 766.315, Florida Statutes,” is an issue of fact that remains to

be litigated. Although Petitioners did not submit a proposed final order and Respondent, in

its proposed final order, “takes no position on the factual issue of notice,” in compliance with

section 766.309(1)(d), the undersigned shall address the issue.

Ms. Paulino, because Ms. Aviles confirmed her own handwriting existed on

the NICA Form and other documents bearing Ms. Paulino’s signatures from

her emergency department visit to ORMC on September 8, 2016.

61. While Ms. Aviles did not have an independent recollection of watching

Ms. P au lino sign or initial the documents, she testified about her encounter

with Ms. Paulino based on her routine practice: i.e., the NICA Form is

handed to a pregnant patient after providing that patient a copy of the NICA

brochure and explaining what the infor mation is about; every pregnant

patient would receive a copy of the NICA brochure and NICA Form; only the patient would sign that form and other admission documents; and if the

patient refused to sign, Ms. Aviles would have documented “patient refused

to s ign” before she scanned any and all printed documents handed to the

patient for incorporation into that patient’s electronic medical chart.

62. Ms. Aviles also credibly testified that it was her routine practice to

advise the patient of ORMC’s participatio n in the Plan while discussing the

brochure and obtaining the obstetric patient’s signature. The “NICA

brochure” is provided by Respondent and is entitled “Peace of Mind for an

Unexpected Problem,” and is provided in several languages including

Spanish. Ms . Avile s , who is fluent in English and Spanish, testified that she

would have provided her explanation to Ms. Paulino in Spanish, and probably

provided her with the Spanish NICA brochure.

63. Intervenor further presented the testimony of its forensic docu ment

examiner expert, Laurie Hoeltzel, PhDc., via deposition and written declaratio n made under penalty of perjury. Ms. Hoeltzel testified that she

was retained by counsel for Intervenor to examine the NICA Form dated

September 8, 2016, to determine whethe r or not the handwritten signature

on that document was written by Ms. Paulino. In addition to reviewing the

NICA Form, Ms. Hoeltzel reviewed 14 other documents containing the

signatures of Ms. Paulino from September 2016 through October 2019,

including th e signatures that Ms. Paulino testified were her own at

deposition and other documents Ms. Paulino’s counsel obtained and

forwarded in discovery. Ms. Hoeltzel also reviewed parts of Ms. Paulino’s

deposition transcript from January 2019 and the signatures c ontained within

her answers to ORMC’ s interrogatories from October and December 2018 .

64. After taking microscopic measurements of Ms. Paulino’s signatures

and applying her education, training , and experience as a forensic document

examiner, it was Ms. Hoe ltzel’s deposition testimony that every signature

was consistent with one another. Ms. Hoeltzel further testified that, within a

reasonable degree of forensic document examining probability, it is highly

probable Ms. Paulino authored the signature on the N ICA Form.

65. The undersigned finds, based upon the totality of credible evidence,

that it is more likely than not that Ms. Paulino was provided a Spanish NICA

brochure during her visit to ORMC on September 8, 2016. The undersigned

further finds that, on t hat date, Ms. Paulino was advised of ORMC’s

participation in the Plan.

C ONCLUSIONS O F L AW

66 . DOAH has jurisdiction over the parties to and the subject matter of

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

67 . The Plan was established by the Legis lature “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.

68 . Section 766.301(2) provides that it is “the int ent of the Legislature to

provide compensation, on a no - fault basis, for a limited class of catastrophic

injuries that result in unusually high costs for custodial care and rehabilitation.”

69 . The injured infant, her or his personal representative, paren ts,

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 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.

70 . If Respondent determines that the injury alleged is a claim that is a

compensable birth - related neurological injury, it may award compensation to

the claimant, provided that the award is approved by the ALJ to whom the

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

c laim is disputed , as here, the dispute must be resolved by the assigned ALJ

in accordance with the provisions of chapter 120, Florida Statutes.

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

71 . In its present posture, the undersigned is required to make the

following threshold determinations 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

susta ined 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 - re lated 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 resuscitation in the immediate postdelivery period in a hospital; or by a certified n urse 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.

* * *

(d) Whether, if raised by the claimant or other

party, the factual determinations regarding the

notice requirements in s. 766.316 are satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations.

§ 766.309(1), Fla. Stat.

72. An award may be sustained only if the ALJ conclu des that the “infant

has sustained a birth - related neurological injury. . . .” § 766.31(1), Fla. Stat.

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. T his definition

shall apply to live births only and shall not include

disability or death caused by genetic or congenital

abnormality.

73 . The phrase “substantial mental impairment” is neither defined by

statu t e nor present rule. In Florida Birth - Related Neurological Injury

Compensation Association v. Florida Division of Administrati on Hearings ,

686 So. 2d 1349 (Fla. 1997) [hereinafter Bi rnie ], the court was asked to

resolve the certified question as to whether, under the Plan, an infant must

suffer both substantial mental and physical impairment, or can the definition

be construed to require only substantial impairment, mental and/or physical.

In resolving the question, the B i rnie court explained that “[w]here, as here,

the legislature has not defined the words used in a phrase, the language

should usually be given its plain and ordin ary meaning.” Bi rnie , at 1354,

citing Southeastern Fisheries Ass’n , Inc. v. Dep’t Nat. Res. , 453 So. 2d 1351

(Fla. 1984). “Nevertheless, consideration must be accorded not only to the

literal and usual meaning of the words, but also to their meaning and e ffect

on the objectives and purposes of the statu t e’s enactment.” Id .

74 . The B i rnie court concluded that the NICA statute is written in the

conjunctive and requires a permanent and substantial impairment to both

the physical and mental elements. Id . at 1 356. The B i rnie court did not

establish a definition or test for the determination of “substantial mental impairment,” but found that the underlying decision by the ALJ must be

supported by compete nt and substantial evidence.

75 . In Adventist Health Syste m/Sunbelt, Inc. v. Florida Birth - Related

Neurological Injury , 865 So. 2d 561 (5th DCA 2004) [hereinafter Shoaf ], the

Fifth District Court of Appeals likewise rejected setting forth a formulaic

approach to the resolution of the term “substantial mental impa irment.”

Addressing the argument that Bi rnie had created a definition, the Shoaf

court countered:

It is apparent, however, that the Bi rnie court did

not define or redefine “substantial mental

impairment.” They simply said that the decision of

the ALJ was supported by competent substantial

evidence. All this language in Bi rnie suggests is

that, under NICA, the identification of a

substantial mental impairment may include not

only significant cognitive deficiencies but can

include, in a proper case, additio nal circumstances

such as significant barriers to learning and social

development.

Shoaf , at 567.

76 . The Shoaf court again reiterated that, as the L egislature did not

define the terms used in the test for NICA qualification, these terms are to be

given their ordinary meanings. Id . at 568. Indeed, the Shoaf court further

directed that:

The legislature left the application of the terms

they used to the administrative law judges

designated by statute to hear these claims and to

apply the expertise they d evelop in carrying out

this task to determine from the evidence adduced

in each case whether these for NICA is met.

* * *

In cases such as the one before us, the ALJ, as fact finder, brings his own background, training, experience and expertise to the ta sk of weighing

and evaluating very sophisticated evidence. The

child’s advocate likewise brings his own

communication and strategic skills to the fact -

finding process; and finally, the evidence in each case will vary in its power to persuade. This will be

especially true in cases where the opinions of

experts are concerned.

Id. , at 568 - 69.

77. Finally, the Shoaf court, in concluding that the underlying decision by

the ALJ was supported by competent substantial evidence, advised that the

term “substantial mental impairment” is broad enough to encompass more

than just damage to cognitive capacity and more than merely the inability to

translate cognitive capabilities into adequate learning in a normal manner or

impairment of social and vocational development . Id . , at 569.

78. Here, Petitioners are not seeking compensation under the Plan, but

instead are seeking to establish the right to sue in a court of law, and, therefore, are not claimants. Bennett v. St. Vincent’s Med. Ctr. , 71 So. 3d 828,

844 (Fla. 2011) . As the proponent that Petitioners’ claim is compensable,

Intervenor carries the burden of proof.

79. The undersigned concludes that sufficient evidence was presented, or

otherwise stipulated or admitted by the parties to establish that Ian was born

a li ve infant on September 28, 2016, at ORMC, a “hospital” as defined by

section 766.302; that Ian was a single gestation, weighing over 2,500 grams

at birth; and that he suffered an injury to h is brain caused by oxygen

deprivation occurring in the course of l abor, delivery, or resuscitation in the

immediate post - delivery period .

80. The undersigned further concludes that sufficient evidence was

presented, or otherwise stipulated or admitted by the parties to establish that

d uring the course of labor, delivery , or resuscitation in the immediate post -

delivery period, obstetrical services for Ms. Paulino were delivered by

Dr. DeNardis, a NICA participating physician at the time of birth; and that

r esident physicians, Nnenna J. Maduforo, D.O. , and Samantha Buntin g,

D.O., who assisted in the delivery, were exempt from the NICA assessment, pursuant to section 766.314(4)(a ) .

81. The undersigned further concludes that the injury to Ian’s brain

rendered him permanently and substantially mentally impaired. No evidence w as presented to suggest that Ian’s injury was caused by genetic or

congenital abnormality or due to infection.

82. Although t he phrase “substantial physical impairment” under the

Plan is neither defined by statu t e nor present rule , in Matteini v. Florida

Birth - Related Neurological , 946 So. 2d 1092 (Fla. 5th DCA 2006), the court

provided some limited guidance. In that case, the court noted that, “[u]nder

the Plan, a ‘ physical impairment ’ relates to the infant’s impairment of his

‘ motor abnormalities ’ or ‘ ph ysical functions, ’ . . .” Id. at 1095.

83. The parties to this proceeding presented one or more experts to

support their respective position as to whether Ian is permanently and

substantially physically impaired. All of the experts presented were well -

qu alified, credentialed, and possessed extensive and significant training and

experience in their respective discipline or area of expertise. Having

thoroughly reviewed and weighed the considered expert opinions and

evidence, including Dr. Gieron’s videotape d examination of Ian, the

undersigned concludes that the better evidence supports the conclusion that

Ian’s injury at issue, based on the Findings of Fact above, did not render him

substantially physically impaired. Although Ian’s hearing loss is concluded to

be permanent, t he undersigned concludes that Intervenor failed to meet its

burden of presenting sufficient evidence to establish that Ian’s physical

impairment(s) are substantial .

84. During the course of this litigation, the issue was raised as to wh ether

the notice requirements set forth in section 766.316 were met. With respect to

the notice issue, as the proponents of the proposition that appropriate notice

was given or that notice was not required, the burden on this issue of notice

is upon Interv enor. Tabb v. Fla. Birth - Related Neurological Injury Comp.

Ass'n. , 880 So. 2d 1253, 1257 (Fla. 1st DCA 2004).

85. Section 766.316, entitled “Notice to obstetrical patients of participation

in the plan,” provides as follows:

Each hospital with a particip ating physician on

its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under

s. 766.314(4)(c), under the Florida Birth - Related

Neurological Injury Compensation Plan shal l

provide notice to the obstetrical patients as to the

limited no - fault alternative for birth - related

neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient’ s rights and limitations under the plan. The

hospital or the participating physician may elect to

have the patient sign a form acknowledging receipt

of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable p resumption that the notice

requirements of this section have been met. Notice

need not be given to a patient when the patient has

an emergency medical condition as defined in

s. 395.002(8)(b) or when notice is not practicable.

86. As set forth in the Fi ndings of Fact, it is concluded that Petitioners

were provided with a copy of the NICA brochure on September 8, 2016,

20 days prior to delivery. In Galen of Florida, Inc. v. Braniff , 696 So. 2d 308

(Fla. 1997), the court addressed the issue of when notice must be given,

pursuant to section 766.316. The court held that “as a condition precedent to

invoking [the Plan] as a patient’s exclusive remedy, health care providers

must, when practicable, give their obstetrical patients notice of the

participation in t he plan a reasonable time prior to delivery.” Galen , 696 So.

2d at 309. The undersigned concludes that Petitioner was timely provided a

copy of the NICA brochure. The undersigned further concludes that, on

September 8, 2016, Intervenors provided timely not ice to Petitioners of their

participation in the Plan. Accordingly, it is concluded that Intervenor satisfied the notice requirements of section 7 6 6.316.

C ONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that:

1. I an did not sustain a “birth - related neurological injury,” as defined in

section 766.302(2 ) and, therefore Petitioners’ claims is not compensable

under the Plan.

2. O bstetrical services were delivered by a participating physician ,

Dr. DeNardis, in the cou rse of labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital .

3. Intervenor satisfied the notice requirements of section 766.316.

D ONE A ND O RDERED this 2 4th day of November, 2020 , in Tallahassee,

Leon County, Florida.

T ODD P. R ESAVAGE

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 2 4th day of November, 2020 .

C OPIES F URNISHED :

(via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2970 0000 6014 2130 )

Mark R. Messerschmidt, Esquire

La Cava Jacobson & Goodis, PA

501 East Kennedy Boulevard , Suite 1250

Tampa, Florida 33602

(eServed)

(Certified No. 7020 1290 0001 6309 8600 )

Alejandro Abarca

Ana Pa ulino

223 South Randolph Avenue

Kissimmee, Florida 34741

(Certified No. 7020 1290 0001 6309 8594 )

Elizabeth A. Myers, Esquire

Smith Bigman Brock, P.A.

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7020 1290 0001 6309 8587 )

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7020 1290 0001 6309 8570 )

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Or lando, Florida 32803

(eServed)

(Certified No. 7020 1290 0001 6309 8563 )

Michael R. Denardis, D.O.

1160 Cypress Glenn Circle

Kissimmee, Florida 34741

(Certified No. 7020 1290 0001 6309 8556 )

Amie Rice, Investigation Manager

Consumer Services Unit

Depart ment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7020 1290 0001 6309 8617)

Shevaun L. Harris , Acting Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Talla hassee, Florida 32308

(eServed)

( Certified No. 7020 1290 0001 6309 8624)

Carlos Diez - Arguelles, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

( Certified No. 7020 1290 0001 6309 8631)

Louis La Cava, Esquire

La Cava Jacobson & Goodis, PA

501 East Kennedy Boulevard , Suite 1250

Tampa, Florida 33602

(eServed)

( Certified No. 7020 1290 0001 6309 8648)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, 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 agency clerk of the Division o f Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the d istrict c ourt of

a ppeal in the appellate district where the agency maintai ns its headquarters

or where a party resides or as otherwise provided by law.