18-002706N Oluwatosin Otiki And Ayodele Jinadu, Individually And As Natural Parents And Natural Guardians Of Angel Jinadu, A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 17, 2018.

Summary: The infant did not sustain a "birth-related neurological injury" as defined in section 766.302(2). Therefore the infant is not eligible for benefits under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLUWATOSIN OTIKI and AYODELE

JINADU, individually and as

natural parents and natural

guardians of ANGEL JINADU, a

minor,

Petitioners,

vs. Case No. 18 - 2706N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

AND BABIES ; AND MARTHA KUFFSKIE,

M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

Thi s cause came for consideration on an Unopposed Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association ( Ð NICA Ñ ), on

September 7, 2018.

STATEMENT OF THE CASE

On May 17, 2018, Petitioners, Oluwat osin Otiki and Ayodele

Jinadu, on behalf of and as parents of, Angel Jinadu ( Ð Angel Ñ ), a

minor, filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 et seq. ( Ð Petition Ñ ) with the Division of

Administrative Hearings ( Ð DOAH Ñ ) for the det ermination of

compensability under the Florida Birth - Related Neurological Injury

Compensation Plan ( Ð Plan Ñ ).

The Petition named Louis Stern, M.D., as the physician who

provided obstetric services at the birth of Angel on October 14,

2015, at Intervenor O rlando Health, Inc., d/b/a Winnie Palmer

Hospital for Women and Babies ( Ð Orlando Health Hospitals Ñ ).

DOAH served Dr. Stern with a copy of the Petition on May 29,

2018, and served Orlando Health Hospitals that same date. NICA

was also served with a copy of the Petition on May 29, 2018.

On July 20, 2018, Orlando Health Hospitals filed a Motion to

Intervene, which was granted. In its motion, Orlando Health

Hospitals identified Martha Kuffskie, M.D., as the physician at

the time of labor prior to Angel Ó s bi rth.

On August 22, 2018, NICA filed its response to the Petition,

taking the position that Petitioners Ó claim was not compensable

under the Plan. NICA requested that DOAH schedule a hearing to

determine compensability.

On August 28, 2018, NICA filed a status report representing

that no party requests a final hearing in this matter.

On September 7, 2018, NICA filed an Unopposed Motion for

Summary Final Order, requesting the Administrative Law Judge enter

a summary final order finding that the claim was not compensable

because Angel did not suffer a Ð birth - related neurological injury Ñ

as defined in section 766.302(2).

FINDINGS OF FACT

1. Angel was born on October 14, 2015, at Orlando Health

Hospitals located in Orlando, Florida.

2. Based on the hospita l records in evidence, Louis

Stern, M.D., was the delivering physician for Angel Ó s birth.

Dr. Stern was not a Ð participating physician Ñ under the Plan at

the time Angel was born. See § 766.302(7), Fla. Stat.

(Dr. Kuffskie was a Ð participating physici an Ñ for the year in

which the injury occurred.)

3. Upon receiving the Petition, NICA retained

Donald Willis, M.D., an obstetrician/gynecologist specializing in

maternal - fetal medicine, as well as Laufey Y.

Sigurdardottir, M.D., a pediatric neurologist , to review Angel Ó s

medical records. NICA sought to obtain an opinion whether there

was an injury to Angel Ó s brain or spinal cord at birth caused by

oxygen deprivation or mechanical injury occurred in the course of

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

period, and whether that injury rendered Angel permanently and

substantially mentally and physically impaired.

4. Dr. Willis reviewed Angel Ó s medical records and opined,

within a reasonable degree of medical probability :

[T] here w as an apparent obstetrical event

that resulted in oxygen deprivation or

mechanical trauma during labor, delivery and

the immediate post - delivery period. The

oxygen deprivation resulted in brain injury.

5. Dr. Sigurdardottir also reviewed Angel Ó s medical

records, as well as examined Angel on August 1, 2018.

Dr. Sigurdardottir opined, within a reasonable degree of medical

probability:

[A] lthough there is evidence of impairment

consistent with a neurologic injury to the

brain or spinal cord acquired due t o oxygen

deprivation or mechanical injury, Angel is

not found to have substantial delays in motor

abilities. Angel is found to have mild to

moderate delays in mental abilities, with a

language delay noted on her exam. She has

made good progress with her developmental

delays and prognosis for full motor and metal

recovery is good.

6. A review of the file reveals no contrary evidence to

dispute the findings and opinions of Dr. Willis and

Dr. Sigurdardottir . Their opinions are credible and persuasive.

7. Based on the opinions and conclusions of Dr. Willis and

Dr. Sigurdardottir, NICA determined that Petitioner Ó s claim was

not compensable. NICA subsequently filed the Unopposed Motion

for Summary Final Order asserting that Angel has not suffered a

Ð birth - related neurological injury Ñ as defined by section

766.302(2). Neither Petitioners nor Intervenor oppose NICA Ó s

motion.

CONCLUSIONS OF LAW

8. The undersigned, as an Administrative Law Judge, has

exclusive jurisdiction over the subject matter of this pro ceeding.

§ 766.304, Fla. Stat.

9. The Florida Legislature established the Plan Ð for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims Ñ relating to births

occurring on or after January 1, 1989. § 7 66.303(1), Fla. Stat.

10. 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), 766.30 3(2), and 766.305(1), Fla. Sta t . NICA, which

administers the Plan, then has Ð 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. Ñ § 766.305(4), Fla. Stat.

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

is a compensable birth - related neurological injury, it may award

compensation to the claimant, provided that the award is approved

by the Administra tive Law Judge to whom the claim has been

assigned. § 766.305(7), Fla. Stat.

12. In this matter, however, NICA has determined that

Petitioners Ó claim is not compensable under the Plan. Therefore,

NICA filed a n Unopposed Motion for Summary Final Order, requesting

an order be entered finding that the claim is not compensable.

13. In ruling on NICA Ó s motion, section 766.309(1) provides

that the Administrative Law Judge must make the following

determination based upon the available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury caused

by oxygen deprivation or 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

s. 766.302(2).

14. The term Ð birth - related neurological injury Ñ is defined

in section 766.302(2) as follows:

Ð Birth - related neurological injury Ñ 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 multipl e

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

pe rmanently and substantially mentally and

physically impaired. This definition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality.

15. Ð The [NICA] Statute is written in the conjunctive an d

can only be interpreted to require permanent and substantial

impairment that has both physical and mental elements. Ñ (emphasis

added) . Fla. Birth - Related Neurological Injury Comp. Ass Ó n v.

Fla. Div. of Admin. Hearings , 686 So. 2d 1349, 1356 (Fla. 1997) .

16. The undisputed evidence establishes that Angel did not

sustain a Ð birth - related neurological injury Ñ as defined in

section 766.302(2). Dr. Willis concluded that an apparent

obstetrical event did occur to Angel that resulted in injury to

her brain. However, Dr. Sigurdardottir opined that Angel is not

currently suffering from substantial delays in her motor

abilities, and she only experiences mild to moderate delays in her

mental abilities. Dr. Sigurdardottir further commented that Angel

Ð has made go od progress with her developmental delays and

prognosis for full motor and me n tal recovery is good. Ñ Therefore,

based on the evidence in the record, Angel has not suffered a

Ð birth - related neurological injury Ñ and is not eligible for NICA

benefits.

DISPOS ITION

Based upon the foregoing Findings of Fact and Conclusions of

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

DONE AND ORDERED this 16 th day of October, 2018 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

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

Divisi on of Administrative Hearings

this 16 th day of October, 2018 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Flor ida 32308

(eServed)

(Certified No. 7015 0640 0003 7653 0883 )

Steven Robert Maher, Esquire

The Maher Law Firm, P.A.

Suite 1

271 West Canton Avenue

Winter Park, Florida 32789

(eServed)

(Certified No. 7015 0640 0003 7653 0906 )

Andrea L. Diederich, Es quire

Marshall, Dennehey, Warner,

Coleman & Goggin

Suite 550

315 East Robinson Street

Orlando, Florida 32801

(eServed)

(Certified No. 7015 0640 0003 7653 0890 )

Brooke M. Gaffney, Esquire

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

Suite 900

444 Seabreeze Boulev ard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7012 1640 0000 7869 8249 )

Chanel Mosley, Esquire

Marshall, Dennehey, Warner,

Coleman & Goggin

Suite 550

315 East Robinson Street

Orlando, Florida 32801

(eServed)

(Certified No. 7015 0640 0003 7 653 0876 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7012 1640 0000 7869 82 63 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7012 1640 0000 7869 8256 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

by appeal to th e 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 n otice of a dministrative a ppeal

with the a genc y 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

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

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

1992).