18-003248N Eric Reynolds And April Reynolds, O/B/O Marshall Reynolds, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, January 16, 2019.

Summary: Petitioner did not suffer a birth-related neurological injury compensable under the NICA plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIC REYNOLDS and APRIL

REYNOLDS, o/b/o MARSHALL

REYNOLDS, a deceased minor,

Petitioners,

vs. Case No. 18 - 3248N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

HOLMES REGIONAL MEDICAL CENTER,

INC.,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This case is before the administrative law judge to consider

RespondentÓs Motion for Partial Summary Final Order (Motion),

filed on October 15, 2018, by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA). 1/ The Motion

relies on the affidavit and report of Donald C. Willis, M.D.,

that opines that the infant, Marshall Reynolds (Mars hall), did

not suffer an injury during the course of labor, delivery, or

resuscitation in the immediate postdelivery in the hospital. All

responses to the Motion have been filed , and the case is ripe for

consideration.

STATEMENT OF THE CASE

On June 12, 20 18, Petitioners filed a Petition, under

Protest, for Benefits Pursuant to Florida Statute Section 766.301

et seq. (Petition), with the Division of Administrative Hearings

(DOAH) for a determination of compensability under the Florida

Birth - Related Neurolog ical Injury Compensation Plan (Plan). The

Petition named Billy Duke, M.D., as the physician who provided

obstetrical services at MarshallÓs birth on June 9, 2016, at

Holmes Regional Medical Center (Holmes Regional) in Melbourne,

Florida.

On June 25, 2018, DOAH mailed a copy of the Petition to

NICA, Dr. Duke, and Holmes Regional by certified mail. NICA was

served with the Petition on or before June 28, 2018. The

envelope addressed to Dr. Duke was returned as undeliverable, and

on July 12, 2 01 8, a second c opy of the Petition was sent to

Dr. Dukes by certified mail. Dr. Duke was served on or before

July 16, 2018.

On August 10, 2018, Holmes Regional petitioned to intervene

in the proceeding, and its request was granted by Order dated

August 20, 2018. NICA asked for extensions of time to respond to

the Petition, based upon the need to receive and review the

medical records. Those requests were granted, and on October 15,

2018, NICA filed a Notice of Non - compensability and Request for

Evidentiary Hearing on Compensability. At the same time, NICA

filed its Motion for Partial Summary Final Order. Also filed was

the opinion of Donald Willis, M.D., in support of the Motion.

Petitioners have filed a response indicating that they do not

object to the determinat ion that the injury in this case is not

compensable under the Plan. In their response, Petitioners state

that they also filed a Motion for Summary Final Order on the

issue of notice. However, no such motion appears on the docket.

In any event, the deter mination that the injury is not

compensable is dispositive.

While Petitioners filed a response stating that they did not

object to the determination that the injury was not compensable,

Intervenor asserted that it should have the opportunity to

properly evaluate Dr. WillisÓs opinion regarding the nature of

the injury suffered, and to present a factual and legal response

to the opinion. Intervenor requested an extension of time to

file its formal response until 20 days after its deposition of

Dr. Willis w as concluded. On November 13, 2018, IntervenorÓs

request was granted in part, and Intervenor was given until

January 2, 2019, to file a response. The deadline was later

extended, over PetitionerÓs objection, to January 14, 2019.

On January 14, 2019, Inte rvenor filed its Response to

RespondentÓs Motion for Partial Summary Final Order, stating that

it would not be presenting evidence or expert testimony in

response to RespondentÓs motion, and did not require a hearing.

This Summary Final Order of Dismissal is based upon the written

submission s of the parties.

FINDINGS OF FACT

1. Marshall was born on June 9, 2016, at Holmes Regional.

Marshall was a child born of a single gestation, weighing

2,736 grams.

2. NICA retained Donald Willis, M.D., an obstetricia n

specializing in maternal - fetal medicine, to review the medical

records of Marshall and his mother, April Reynolds. Dr. Willis

was asked to provide an opinion as to whether there was a brain

or spinal cord injury to Marshall due to either oxygen

deprivat ion or mechanical injury that occurred in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital.

3. Dr. Willis authored a report to NICA on or about

September 24, 2018, which is incorporated into his affidavi t

dated October 12, 2018. In his report, Dr. Willis stated in

part:

The mother, April Reynolds . . . presented at

38 weeks with a complaint of decreased fetal

movement for several days. Blood pressure

was elevated at 151/105 and a diagnosis of

pregnancy induced hypertension was made.

Pregnancy was felt to be uncomplicated prior

to this complaint.

Fetal heart rate (FHR) monitor tracing was

reviewed. The tracing begins about 2 hours

prior to delivery. Baseline FHR was 145 bpm

with decreased heart rate v ariability. The

mother was not in labor. . . . A prolonged

FHR deceleration to 60 bpm was described at

about 20 minutes prior to delivery.

Emergency Cesarean section delivery was done

for fetal bradycardia.

Birth weight was 2,736 grams. The baby was

s everely depressed at birth. Apgar scores

were 0/0/0. Resuscitation required

intubation and chest compressions. A heart

rate was obtained at 11 minutes after birth.

* * *

Complete newborn hospital records were not

available. However, available records

indicate the baby died about 6 hours after

birth. Death certificate listed the cause of

death as cardiorespiratory arrest and severe

perinatal depression.

In summary, the mother presented with a

several day history of decreased fetal

movements. FHR tra cing on admission showed

decrease variability with terminal

bradycardia. The mother was not in labor.

Medical records are consistent with oxygen

deprivation that occurred prior to delivery.

4. The parties have not submitted any evidence contrary to

Dr . WillisÓs opinion, and his opinion is credited.

CONCLUSIONS OF LAW

5. DOAH has jurisdiction over the parties to and the

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

Stat.

6. The Plan was established by the Legislature Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claimsÑ related to births

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

7. An injured infant, his or her personal representative,

parents, dependent s, 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. Section

766.305(4) provides that NICA, which administers the Plan, has

45 days from the date that a complete claim is served 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.

8. If NICA determines that the alleged injury is a birth -

related n eurological injury that is compensable under the Plan,

it may award compensation to the claimant, provided that the

award is approved by the assigned administrative law judge.

§ 766.305(7), Fla. Stat. However, if NICA disputes the claim , as

it does in th is case, the dispute must be resolved by the

assigned administrative law judge in accordance with chapter 120,

Florida Statutes. §§ 766.304, 766.30, and 766.31, Fla. Stat.

9. The first inquiry is whether the infant has sustained a

birth - related neurologi cal injury as defined by section

766.302(2), which provides:

ÐBirth - related neurological injuryÑ 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 substa ntially 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.

10. If the administrative law judge determines that the

infant has sustained a brain or spinal cord injury caused by

oxygen deprivation or mechanical injury, and that as a result the

infant was rendered permanently and substantially mentally and

physically impaired, then section 766.309(1) provides that there

is a rebuttable presu mption that the injury is a birth - related

neurological injury.

11. In this case, the evidence does not support such a

presumption. The undisputed evidence presented indicates that

there was not an injury to MarshallÓs brain or spinal cord that

was caused by oxygen deprivation or mechanical injury occurring

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

immediate postdelivery period. The only evidence presented

indicates that the oxygen deprivation occurred before the

infantÓs mother presented to the hospital, at a time when she was

not in labor. Based upon this evidence, Marshall did not sustain

a birth - related neurological injury as defined in section

766.302(2), and is not eligible for benefits under the Plan.

CONCLUSION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is ORDERED that RespondentÓs Motion for Partial Summary

Final Order on the issue of a birth - related neurological injury

is granted, and PetitionersÓ claim is found and determined not to

be compensable. The Pe tition is dismissed with prejudice.

DONE AND ORDERED this 16 th day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Buil ding

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 January , 2019 .

ENDNOTE

1/ RespondentÓs Motion w as styled as a Motion for Partial Summary

Final Order. However, the determination that the claim is not

compensable is dispositive, making this a Final Order subject to

appeal under section 766.311, Florida Statutes.

COPIES FURNISHED:

(via certified ma il)

Jack Tobias Cook, Esquire

Morgan & Morgan, P.A.

20 North Orange Avenue , 16 th Floor

Orlando, Florida 32801

(eServed)

(Certified Mail 7017 2400 0000 8929 5099 )

Stacey J. Carlisle, Esquire

Mary Jaye Hall, Esquire

McEwan, Martinez, Dukes & Hall, P.A.

Po st Office Box 753

Orlando, Florida 32801

(eServed)

(Certified Mail 7017 2400 0000 8929 5105 )

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail 7017 2400 0000 8929 5082 )

K enney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail 7017 2400 0000 8929 5068)

Billy Duke, M.D.

303 North Clyde Morris Boulevard

Daytona Beach, Florida 32114

(Certified Mail 7017 2400 0000 8929 5075)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail 7012 1640 0000 7864 0125 )

Mary Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified Mail 7012 1640 0000 7864 0132 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a fina l 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 fil ing the original n otice of a dministrative a ppeal

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 appro priate 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).