17-006445N Shenear Walker-Lawrence And Christopher Lawrence, Sr., On Behalf Of And As Parents And Natural Guardians Of Christopher Walker-Lawrence, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, July 16, 2018.

Summary: The child did not sustain an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHENEAR WALKER - LAWRENCE AND

CHRISTOPHER LAWRENCE, SR., on

behalf of and as parents and

natural guardians of CHRISTOPHER

WALKER - LAWRENCE, a minor,

Petitioners,

vs. Case No. 17 - 6445N

FLORIDA BIRTH - RELATED

NEUROL OGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon NICAÓs Unopposed

Motion for Summary Final Order filed on Jul y 13 , 201 8 , by

Respondent, Florida Birth - Related Neurological Injury Compensation

Association (NICA).

STATEMENT OF THE CASE

On November 8, 201 7 , Petitioner s , Shenear Walker - Lawrence and

Christopher Lawrence, Sr., on behalf of and as parents and natural

g uardian s of Christopher Walker - Lawrence ( Christopher ), a minor,

filed a Petition Under Protest Pursuant to Florida Statute Section

766.301 et seq. (Petition) with the Division of Administrative

Hearings (DOAH) for a determination of compensability under th e

Florida Birth - Related Neurological Injury Compensation Plan ( the

Plan). The Petition indicates in relevant part that the physician

and/or medical providers providing obstetric services , who were

present at the birth , were Carlos Reyes, M.D. , and Kimberl y

Griner, C.N.M. , and that Christopher was delivered at Bayfront

Health St. Pe tersburg (Bayfront) on November 29, 2015.

DOAH served NICA, Bayfront, Dr. Reyes, and Kimberly Griner

with a copy of the Petition on November 28 , 201 7 .

On July 13 , 201 8 , NICA fi led 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 Christophe r 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 Christopher Walker - Lawrence

suffered 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 . Christopher Walker - Lawrence was born on November 29,

2015 , at Community Health Systems, Inc., d/b/a Bayfr ont Health

St. Petersburg , in St. Petersburg , Florida. Christopher weighed

in excess of 2,500 grams at birth. The circumstances of the

labor, delivery, and birth of the minor child are reflected in

the medical records of Bayfront provided to NICA .

2 . A t all times material, both Bayfront and Dr. Reyes were

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

3 . Christopher was delive red via Caesarean section by

Dr. Reyes, who was a NICA - partic ipating physician, on

November 29, 2015, at 12 :41 p.m .

4 . Petitioner contend s that Christopher suffered a birth -

related neurological injury and seek s compensation under the Plan ,

under protest . Respondent contends that Christopher has not

suffered a birth - related neurological injury as defined by se ction

766.302(2).

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

certain statutory requisites 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 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 mech anical

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 obs tetrical 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 physic ian in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital.

(c) How much compensation, if any, is

awardable pursuant to § 766.31.

(2) If the Administrative Law Judge

determines that the injury alleged is n ot 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 . . . .

(3) The term Ðbirth - related neurological

injuryÑ is defined in Section 766.302(2),

Florid a Statutes, as:

. . . 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 me chanical 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. This definition

shall apply to live b irths only and shall not

include disability or death caused by genetic

or congenital abnormality. (Emphasis added).

6 . In the instant case, NICA has retained Donald C.

Willis, M.D. (Dr. Willis) , as its medical expert specializing in

maternal - fetal medic ine and pediatric neurology , and pediatric

neurologist, Dr. Laufey Y. Sigurdardottir . Upon examination of

the pertinent medical records, Dr. Willis opined in relevant part

that :

there was no loss of oxygen during labor. The

significant acidosis documente d by the

cord blood gas indicates the baby suffered

oxygen deprivation prior to delivery,

during the eight hour period of decreased

fetal movement. Although there may have

been some ongoing oxygen deprivation during

the actual delivery and continuing into

the immediate post - delivery period, it is

more likely the bulk of the brain injury had

already occurred prior to birth. The oxygen

deprivation that occurred prior to

delivery resulted in brain injury.

Dr. WillisÓs medical Report is attached to his Affid avit. His

Affidavit reflects his ultimate opinion that Ð Although there may

have been some ongoing oxygen deprivation during the actual

delivery and continuing into the immediate post - delivery period,

it is more likely the bulk of the brain injury had alre ady

occurred prior to birth. Ñ

7 . 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. Willis. The opinion of Dr. Willis that

Christopher did not suffer an obstetrical event that resulted in

loss of oxygen or mechanical trauma to the babyÓs brain or spinal

cord during labor, delivery , or the immediate post - delivery

period is credited.

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

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

in pediatric neurology. Upon examination of the child and the

pertinent medical records, Dr. Sigurdardottir opined:

Patient is a 2 - year - old boy with history of

moderate hypoxic ischemic encephalopathy and

scattered intraparenchymal an d

intraventricular hemorrhage noted after

cooling was completed. Initial abnormalities

were noted on neurologic exam but he has made

a full recovery and has normal development at

this time.

Result as to question 1: Christopher is

found to have no delays in motor and/or

mental abilities.

Result as to question 2: In review of

available documents, there is evidence of a

neurologic injury to the brain or spinal

c ord acquired due to oxygen deprivation or

mechanical injury. This is felt to be

labor/birth related.

Result as to question 3: The prognosis for

full motor and mental recovery is excellent

and the life expectancy is full.

In light of evidence presented I believe

Christopher does not fulfill criteria of a

substantial mental and physical impairme nt at

this time. I do not feel that Christopher

should be included in the NICA program for

that reason.

Dr. Sigurdardottir Ós medical report is attached to h er Affidavit.

H er Affidavit reflects h er ultimate opinion that Ð although there

is evidence of a n eurologic injury to the brain or spinal cord

acquired due to oxygen deprivation or mechanical injury that is

felt to be labor/birth related, Christopher Walker - Lawrence has

made a full recovery and has normal development at this time. He

has no delays in motor or mental abilities . Ñ

9 . 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 D r. Sigurdardottir

that Christopher did not suffer a substantial mental or physical

impairment acquired in the course of labor or delivery is

credited.

CONCLUSIONS OF LAW

10 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 766.301 - 766.316, F la. Stat.

11 . 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.

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 DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. NICA,

which admini sters 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." § 7 66.305(4), Fla. Stat.

13 . 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 claim 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 demonstr ated, 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 phy sically 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 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 ho spital.

§ 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 bir th."

§ 766.31(1), Fla. Stat.

14 . 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

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

per iod in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

15 . In the instant case, Petitioner file d a claim (albeit

under protest) alleging that Christopher did sustain a birth -

related neurological injur y that is compensable under the Plan.

As the proponent of the issue of compensability, the burden of

proof is upon Petitioner. § 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, a part from statute, is on the party

asserting the affirmative of an issue before an administrative

tribunal.").

16 . Dr. Willis' opinion that Ð Christopher did not suffer an

obstetrical event that resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord during labor, delivery,

or the immediate post - delivery period " and Dr. Sigurdardottir 's

opinion that Ð [ I ] n light of evidence presented I believe

Christopher does not fulfill criteria of a substantial mental and

physical impairment at this time " are credited.

17 . 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 have caused both

permanent and substantial mental and physica l impairment. Fla.

Birth - Related Neurological Injury Comp. Ass'n v. Div. of Admin.

Hearings , 686 So. 2d 1349 (Fla. 1997).

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

no expert opinions filed that are contrary to the opinion s of

Drs. Willis and Sigurdardottir that Christopher does not have a

permanent substantial mental or motor impairment acquired in the

course of labor or delivery. Thus, Christopher has not suffered

a birth - related neurological injury as defined 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 Shenear Walker -

Lawrence and Christopher Lawrence, Sr., on behalf of and as

parents an d natural guardians of Christopher Walker - Lawrence , is

dismissed with prejudice.

DONE AND ORDERED this 16th day of July , 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 16th day of July , 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 976 9 6632)

Robin Treto, Esquire

Knopf Bigger

Suite 220

1560 North Orange Avenue

Winter Park, Florida 32789

(eServed)

(Certified Mail Number 7018 0040 0000 9769 6649 )

Brooke M. Gaffney, Esquire

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

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail Number 7018 0040 0000 9769 6656 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified M ail Number 7018 0040 0000 9769 6663 )

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 9769 6670 )

Community He alth System

Attention: Risk Management

701 Sixth Street South

St. Petersburg, Florida 33701

(Certified Mail Number 7018 0040 0000 9769 6687 )

Kimberly Gri ner, C.N. M .

Suite 400

700 Central Avenue

St. Petersburg, Florida 33701

(Certified Mail Number 7018 0040 0000 9769 6694 )

Carlos Reyes, M.D.

Suite 400

700 Central Avenue

St. Petersburg, Florida 33701

(Certified Mail Number 7018 0040 0000 9769 6700 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall b e

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 appe al

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.31 1(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).