18-003489N Joshua And Laura Eggnatz, On Behalf Of And As Parents And Natural Guardians Of Asher Lee Eggnatz, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 8, 2019.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSHUA AND LAURA EGGNATZ, on

behalf of and as parents and

natural guardians of ASHER LEE

EGGNATZ, a minor,

Petitioners,

vs. Case No. 18 - 3489N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

KOMPAL GADH, M.D. ; AND ADVANCED

OB/GYN INSTITUTE, A FLORIDA

CORPORATION,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on a Motion for Partial

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (ÐNICAÑ), on

November 6, 2018.

STATEMENT OF THE CASE

On June 21, 2018, Petitioners, Joshua and Laura Eggnatz, on

behalf of and as paren ts and natural guardians of, Asher Lee

Eggnatz (ÐAsherÑ), a minor, filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et seq. (ÐPetitionÑ)

with the Division of Administrative Hearings (ÐDOAHÑ) for a

determination of compensability un der the Florida Birth - Related

Neurological Injury Compensation Plan (ÐPlanÑ).

The Petition named Kompal Gadh, M.D., as the physician who

provided obstetric al services at Asher Ós birth on April 20,

2017, at Memorial Hospital West (ÐMemorial HospitalÑ) in

Pembroke Pines, Florida.

DOAH served Dr. Gadh with a copy of the Petition on

July 11, 2018, and served Memorial Hospital that same date.

NICA was also served with a copy of the Petition on July 11,

2018.

On October 24, 2018, NICA filed its response to the

Petition, taking the position that PetitionersÓ claim was not

compensable under the Plan. NICA requested that DOAH schedule a

hearing to determine compensability. NICA also requested that

DOAH bifurcate the administrative proceeding to address the

is sue of compensability and notice first.

On November 5, 2018, Petitioners filed a Notice Regarding

Hearing Requirement wherein they advised DOAH that they did not

desire a final hearing and did not oppose a summary disposition

based on the written records a nd reports filed in this matter.

On November 6, 2018, NICA filed a Motion for Partial

Summary Final Order, requesting the Administrative Law Judge

enter a summary final order finding that the claim is not

compensable because Asher did not suffer a Ðbirth - related

neurological injuryÑ as defined in section 766.302(2). As of

the date of this Order, Petitioners have not responded to NICAÓs

motion.

FINDINGS OF FACT

1. Asher was born on April 20, 2017, at Memorial Hospital

located in Pembroke Pines, Florida.

2. Upon receiving the Petition, NICA retained Michael S.

Duchowny, M.D., a pediatric neurologist, to review AsherÓs case.

NICA sought to obtain an opinion whether there was an injury to

AsherÓs brain or spinal cord at birth caused by oxygen

deprivation o r mechanical injury occurr ing in the course of

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

period, and whether that injury rendered Asher permanently and

substantially mentally and physically impaired.

3. Dr. Duchowny reviewed AsherÓs medical records, as well

as examined Asher on October 10, 2018. Dr. Duchowny opined,

within a reasonable degree of medical probability:

[I]t is my opinion that ASHERÓs neurological

examination reveals neurological findings

consistent with a mild motor impairment

primarily affecting his right upper

extremity. In contrast, Asher has preserved

cognitive function and social awareness. He

evidences slightly decreased muscle tone in

the right distal upper and lower extremities

and slightly increased deep te ndon reflexes.

As such, it is my opinion that despite

ASHERÓs abnormal MR imaging studies at birth

which document prominent hemorrhagic

infarction in territories supplied by the

left middle and posterior cerebral arteries

with a smaller region of right mid dle

cerebral artery infarction, and bilateral

parieto - occipital areas of increased signal,

he has recovered to a point where he no

longer evidences either substantive mental

or physical impairment.

Based upon my evaluation and record review,

as ASHER is developing normally, I am not

recommending him for acceptance into the

NICA program.

4. A review of the records filed in this matter reveals no

contrary evidence to dispute the findings and opinion of

Dr. Duchowny. His opinion is credible and persuasi ve.

5. Based on the opinion and conclusion of Dr. Duchowny,

NICA determined that PetitionersÓ claim was not compensable.

NICA subsequently filed the Motion for Partial Summary Final

Order asserting that Asher has not suffered a Ðbirth - related

neurologica l injuryÑ as defined by section 766.302(2).

Petitioners do not oppose NICAÓs motion.

CONCLUSIONS OF LAW

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

exclusive jurisdiction over the subject matter of this

proceeding. § 766.304, Fla. Stat.

7. The Florida Legislature established the Plan Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claimsÑ relating to births

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

8. The injure d 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 administers the Plan, then has Ð45 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.

9. 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 Administrative Law Judge to whom the claim has

b een assigned. § 766.305(7), Fla. Stat.

10. In this matter, however, NICA determined that

PetitionersÓ claim is not compensable under the Plan.

Therefore, NICA filed a Motion for Partial Summary Final Order,

requesting an order be entered finding that the claim is not

compensable.

11. In ruling on NICAÓs 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 neurolo gical 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 mechanical

injury and that the infant was thereby

rendered per manently 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).

12. The term Ðbirth - related neurological injuryÑ is

defined in section 7 66.302(2) as follows:

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

substantially mentally and physically

impaire d. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

13. ÐThe [NICA] Statute is written in the conjunctive and

can only be interpreted to require permanent and substant ial

impairment that has both physical and mental elements.Ñ Fla.

Birth - Related Neurological Injury Comp. AssÓn v. Fla. Div. of

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

14. The undisputed evidence establishes that Asher did not

sustain a Ðbirth - related neurological injuryÑ as defined in

section 766.302(2). Dr. Duchowny concluded that, at this time,

Asher has recovered from the incident that occurred at his birth

to a point Ðwhere he no longer evidences either substantial

mental or physical impa irmentÑ and is developing normally.

Therefore, based on the evidence in the record, Asher has not

suffered a Ðbirth - related neurological injuryÑ and is not

eligible for NICA benefits.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions o f

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

prejudice.

DONE AND ORDERED this 8 th day of January, 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administ rative 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 8 th day of January, 201 9 .

COP IES FURNISHED:

(via certified mail)

Joshua H. Eggnatz

Laura Eggnatz

12265 Croton Way

Cooper City, Florida 33026

(eServed)

(Certified No. 7017 2400 0000 8929 6409 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7014 2400 0000 8929 6416 )

Julia M. Ingle, Esquire

Lubell & Rosen, LLC

200 South Andrews Avenue , Suite 900

Fort Lauderdale, Florida 33301

(eServed)

(Certified No. 7017 2400 0000 8929 6423 )

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified No. 7014 2400 0000 8929 6430 )

Amie Rice, Investigation Manager

Consumer Services Unit

Departmen t of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7017 2400 0000 8929 6447 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florid a 32308

(eServed)

(Certified No. 7017 2400 0000 8929 6454 )

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. R eview 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 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).