18-003336N Frazer Akomprah And Philomina Bentley, On Behalf Of And As Parents And Natural Guardians Of Scarlett T. Akomprah, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, December 4, 2018.

Summary: Petitioners are ineligible for benefits under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRAZER AKOMPRAH AND PHILOMINA

BENTLEY, on behalf of and as

parents and natural guardians of

SCARLETT T. AKOMPRAH, a deceased

minor,

Petitioners,

vs. Case No. 18 - 3336N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY C OMPENSATION

ASSOCIATION,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

AND BABIES ; AND MANUEL L.

HERRERA, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

Respondent, Florida Birth - Related Neurological Injury

Compensation Association ( Ð NICA Ñ ), filed a Motion for Summary

Final Order (ÐMotionÑ) on October 22, 2 01 8, which is due for

consideration. The Motion relies on the medical records of the

infan t , Scarlett T. Akomprah, provided as certified business

records maintained by the Winnie Palmer Hospital for Women and

Babies (ÐWinnie Palmer HospitalÑ) .

STATEMENT OF THE ISSUE

The issue to be determined is whether the infant,

Scarlett T. Akomprah, suffer ed a birth - related neurological

injury as defined by section 766.302(2), Florida Statutes (2017).

PRELIMINARY STATEMENT

On June 4, 2018, Petitioners filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 ( Ð Petition Ñ ), on

behalf of and as parents and natural guardians for Scarlett T.

Akomprah ( Ð Scarlett Ñ ), for a determination of compensability

under the Florida Birth - Related Neurological Injury Compensation

Plan ( Ð Plan Ñ ). When t he original Petition was filed with the

Division of Administr ative Hearings (ÐDOAHÑ or ÐDivisionÑ), it

was unsigned, and after notification by a Division c lerk, a

signed Petition was filed o n June 25, 2018.

The Petition named Manuel Herrera, M.D., as the physician

who provided obstetrical services at ScarlettÓs birt h, and named

Winnie Palmer Hospital as the hospital where Scarlett was born,

on March 21, 2018.

On July 5, 2018, the Petition was served by certified mail

on NICA, Dr. Herrera, and Winnie Palmer Hospital. A certified

return receipt was received from NICA on July 9, 2018. No

certified returns were received from either Dr. Herrera or Winnie

Palmer Hospital; however, on July 20, 2018, a Motion to Intervene

was filed on their behalf, and was granted by Order dated

July 30, 2018.

NICA requested and received two extensions of time to

respond to the Petition. On October 19, 2018, NICA filed a

Motion for Summary Final Order, which it amended on October 22,

2018.

Florida Administrative Code Rule 28 - 106.204 allows parties

to file a response to a motion within sev en days of service. At

the end of the seven - day period, Petitioner s had not filed a

response to the Motion for Summary Final Order, and an Order

Requiring Response was issued on October 30, 2018, directing a

response by no later than November 9, 2018. To date, no response

has been filed.

FINDINGS OF FACT

1. On March 21, 2018, at 10:29 a.m., Philomina Bentley gave

birth to a baby girl. While the medical records describe her as

ÐBaby Girl of Philomina - Ò Testimony, Ó Ñ the Petition identifies her

as Scarlet t T. Akomprah. However, the Petition also identifies

the mother as Philomina Bentley, and identifies the date of birth

as March 21, 2018, at 10:29 a.m., and the birth being that of a

single baby. No evidence has been presented suggesting that the

baby re ferenced as ÐTestimonyÑ in the medical records is not the

baby referenced as ÐScarlett T.Ñ in the Petition. For purposes

of this Order, the baby is referenced as Ð Scarlett. Ñ

2. Scarlett was delivered at 26 weeks, 3 days gestation,

and weighed 950 grams.

3. The only evidence submitted was the affidavit regarding

business records and the accompanying medical records for the

infant.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

5. 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 Janu ary 1, 1989. § 766.303(1), Fla. Stat.

6. An injured infant, his or her 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 766.30 5(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 th e injury is a

birth - related neurological injury.

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

related neurological 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 this 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.

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

birth - related neurological injury as defined by section

766.302(2), which provides:

(2) ÐBirth - related neurological injuryÑ

means injury to the brain or spinal co rd 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, deliv ery, 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 births only and shall not

include disability or death ca used by genetic

or congenital abnormality. ( E mphasis

supplied ) .

9. 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 infan t was rendered permanently and substantially mentally

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

there is a rebuttable presumption that the injury is a birth -

related neurological injury.

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

finding. The undisputed evidence presented indicates that at

birth, Scarlett weighed 950 grams, well below the threshold

weight specified in the definition in section 766.302(2). This

issue is dispositive with respect to compensability. Based upo n

this evidence, Scarlett 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 Findings of Fact and Conclusions of L aw

provided above, PetitionersÓ cl aim is not compensable under the

Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 4th day of December , 2018 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Di vision 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 4th day of De cember , 2018 .

COPIES FURNISHED:

(via certified mail)

Frazer Akomprah

Philomina Bentley

Apartment 105

5052 Millenia Boulevard

Orlando, Florida 32839

(Certified Mail No. 7013 1090 0002 4071 0816 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7013 1090 0002 4071 08 30 )

Andrea L. Diederich, Esquire

Marshall, Dennehey, Warner,

Coleman & Goggin

315 East Robinso n Street , Suite 550

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7013 1090 0002 4071 08 23 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified M ail No. 7015 0640 0003 7651 8775 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Certified Mail No. 7015 0640 0003 7651 8737 )

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. Su ch proceedings are

commenced by filing 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 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).