18-001408N Morgan And Steven Lazzara, On Behalf Of And As Parents And Natural Guardians Of Noble Lazzara, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 12, 2018.

Summary: There was oxygen deprivation to the baby's brain occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period, however, the baby did not sustain a permanent and substantial mental and physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MORGAN AND STEVEN LAZZARA, on

behalf of and as parents and

natural guardians of NOBLE

LAZZARA, a minor,

Petitioners,

vs. Case No. 18 - 1408N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon an Unopposed

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on September 5, 2018.

STATEMENT OF THE CASE

On February 28, 2018, Petitioners filed a Petition for

Benefits (Petition) with the Division of Administrative hearings

(DOAH) for a determination of compensability unde r the Florida

Birth - Related Neurological Injury Compensation Plan (Plan). The

Petition named Prashanti Logeswaran, M.D. , as the physician who

provided obstetric services for the birth of Noble

Lazzara (Noble) on May 4, 2017, at Bayfront Health

St. Pete rsburg/Bayfront Baby Place in Lakeland, Florida.

On March 21, 2018, DOAH mailed a copy of the Petition to

NICA by certified mail. NICA was served with the same on or

before March 29, 2018. On March 21, 2018, DOAH mailed copies of

the Petition by certifie d mail to Dr. Logeswaran and Bayfront

Health St. Petersburg.

On June 25, 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 issue. On July 2,

2018, the undersigned issue d an order requiring the parties to

advise whether a final hearing would be required; and, if so, to

advise the undersigned of when the parties would be prepared to

proceed, the remaining issues, an estimate of time, and choice of

ven ue. On July 23, 2018, NICA provided a written status report

wherein it was represented that, after consultation, neither

party was requesting a hearing and that NICA intended to file an

unopposed motion for summary final hearing.

On September 5, 2018, NI CA filed an Unopposed Motion for

Summary Final Order requesting that a summary final order be

entered finding that the claim is not compensable because Noble

did not sustain a Ðbirth - related neurological injuryÑ as that

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

dismissing the Petition with prejudice. Said motion represents

that Petitioner s do not oppose the instant motion.

FINDINGS OF FACT

1. Noble was born on May 4, 2017, at Bayfront Health

St. Petersburg. Noble wa s a single gestat ion, weighing over

2 , 500 grams at birth.

2. With respect to NobleÓs birth, obstetrical services were

provided by Prashanti Logeswaran, M.D., a NICA participating

physician, in the course of labor, delivery , or resuscitation in

the immediate post - deliver y period.

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

specializing in maternal - fetal medicine, to review Noble Ós medical

records and opine as to wh ether there was an injury to his brain

or spinal cord that occurred in the course of labor, deliv ery, or

resuscitation in the immediate post - delivery period due to oxygen

deprivation or mechanical injury. In his report dated June 18,

2018, Dr. Willis set forth the following:

In summary, what appeared to be an uneventful

vaginal birth resulted in ne wborn depression

with Apgar scores of 3/4/6. Bag and mask

ventilation was required at birth, followed by

CPAP in the nursery. ABG at one hour after

birth was consistent with acidosis. The pH

was 7.18 with a base excess of - 11. Seizure

activity develope d within the first 24 h o urs

after birth and was confirmed by EEG. MRI on

DOL 3 had findings consistent with ischemic

brain injury.

There was no apparent obstetrical event that

resulted in oxygen deprivation during labor

and delivery, but oxygen deprivat ion did occur

in the post - delivery period. The oxygen

deprivation resulted in brain injury.

4. Dr. Willis affirms in his affidavit, dat ed September 4,

2018, the above - quoted opinion based upon his education,

training, experience, and to a reasona ble degree of medical

probability.

5. NICA also retained Laufey Y. Sigurdardottir, M.D., a

pediatric neurologist, to review NobleÓs medical records, conduct

an Independent Medical Examination (IME), and opine as to whether

he suffers from a permane nt and substantial mental and physical

impairment as a result of a birth - related neurological injury.

Dr. Sigurdardottir reviewed the available medical records,

obtained information regarding NobleÓs developmental trajectory

from Petitioners, and conducte d an IME of Noble on May 23, 2018.

6. Dr. SigurdardottirÓs affidavit, attached to NICAÓs

Motion, provides in pertinent part, as follows:

Based upon my education, training and

experience, it is my professional opinion,

within a reasonable degree of medical

probability that although there is evidence of

impairment consistent with a neurologic injury

to the brain or spinal cord acquired due to

oxygen deprivation or mechanical injury, he

has made an excellent recovery and has minimal

delays in developme nt at this time. He has no

delays in mental abilities.

7. 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.

CONCL USIONS OF LAW

8. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 766.301 - 766.316,

Fla. Stat.

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

purpose of providing compensation, irrespective of fault, fo r

birth - related neurological injury claims" relating to births

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

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

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

th e 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 t o submit relevant written information relating to

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

injury." § 766.305(4), Fla. Stat.

11. If NICA determines that the injury alleged is a claim

that is a compensable birth - related neurologic al injury, it may

award compensation to the claimant, provided that the award is

approved by the Administrative Law Judge (ALJ) to whom the claim

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

hand, NICA disputes the claims, as here, the di spute 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.

12. In discharging this responsibility, the ALJ is required

to make the following threshold deter minations based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cor d injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in 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 teachin g hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital.

§ 766.309(1), Fla. Stat.

13. The term "birth - related neurological injury" is defined

in section 76 6.302(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 impaire d.

14. The evidence establishes that there was oxygen

deprivation to NobleÓs brain occurring in the course of labor,

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

resulting in an injury to NobleÓs brain. The evidence further

establi shes that obstetrical services were delivered by a

participating physician, Dr. Logeswaran, in the course of labor,

delivery, or resuscitation in the immediate post - delivery period

in a hospital, Bayfront Health St. Petersburg. The unrefuted

evidence, how ever, establishes that Noble did not sustain a

permanent and substantial mental and physical impairment. Thus,

he did not sustain a birth - related neurological injury as defined

in secti on 766.302(2) 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 12th day of September , 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

Division of Administrative Hearings

this 12th day of September , 2018 .

COPIES FURNISHED:

(via certified mail)

Brent R. Bigger, Esquire

Knopf Bigger

511 West Bay Street , Suite 450

Tampa, Florida 33606

(eServed)

(Certified Mail Number 7018 0040 0000 9 779 0040)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0057 )

Robin Treto, Esquire

Knopf Bigger

1560 North Orange Avenue , Suite 220

Winter Park, Florida 32789

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0064 )

Brooke M. Gaffney, Esquire

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

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florid a 32118

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0071 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9779 0 088 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0095 )

Bayfront Health St. Petersburg

Attention: R isk Management

701 6 th Street South

St. Petersburg, Florida 33701

(Certified Mail Number 7018 0040 0000 9779 0101 )

Prashanti Logeswaran, M.D.

603 7 th Street South, Suite 300

St. Petersburg, Florida 33701

(Certified Mail Number 7018 0040 0000 9779 0118 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

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

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

copy, accom panied 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).