18-004022N Jennifer Chavez And Marlon Chavez, As Parents And Natural Guardians Of Gianna Chavez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Appeal.

Summary: Minor did not sustain a ?birth-related neurological injury,? as defined in section 766.302(2), and, therefore, Petitioners? claim was not compensable under the Plan; Intervenors satisfied the notice requirements of section 766.316.

For Respondent: M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

For Intervenors Shands Jacksonville Medical Center:

Daniel Joseph D'Alesio, Esquire

Unive rsity of Florida

J. Hillis Miller Health Center Self - Insurance Program

7th Floor

580 West 8th Street Tower 1

Jacksonville, Florida 32209

For Intervenors University of Florida Board of Trustees:

James F. Bush, Esquire Dell Graham, P.A. 203 Northeas t 1st Street

Gainesville, Florida 32601

S TATEMENT O F T HE I SSUE

For the purpose of determining compensability, whether the injury

claimed is a birth - related neurological injury and whether obstetrical services

were delivered by a participating physician in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the hospital; and

whether notice was accorded the patient, as contemplated by section 766.316,

Florida Statutes, or whether the failure to give notice was excused b ecause

the patient had an emergency medical condition, as defined in

section 395.002(8), Florida Statutes, or the giving of notice was not practicable.

P RELIMINARY S TATEMENT

On July 26, 2018, Petitioners filed (pro se) a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et. seq. (Petition), with DOAH

for a determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The matter was initially

assigned to ALJ W. David Watkins.

The Petition na med Stephanie Tootle, M.D., as the physician who

provided obstetric services at the birth of Gianna Chavez (Gianna) on

August 9, 2017, at Shands Jacksonville Medical Center d/b/a UF Health

Jacksonville (Shands), in Jacksonville, Florida.

On August 8, 20 18, DOAH mailed a copy of the Petition to Respondent,

Dr. Tootle, and Shands by certified mail. Respondent was served with the

Petition on August 9, 2018.

On October 17, 2018, Respondent filed its Response to the Petition.

Respondent suggested that, based on its review of the claim, Gianna had not

suffered a “birth - related neurological injury,” as defined in section 766.302(2)

and, therefore, the claim was not compensable under the Plan. ALJ Watkins,

issued an order requiring the parties to advise whether a hearing would be

required.

On December 6, 2018, Petitions to Intervene were filed by the University

of Florida Board of Trustees (UFBOT) and Shands. Said petitions were

granted on January 3, 2019. On January 8, 2019, Intervenors filed a Joint

Response to A LJ Watkin s ’ O rder , and asserted that the claim is compensable ,

and requested a hearing to determine compensability.

On January 11, 2019, Petitioners’ counsel filed a notice of appearance. On

February 4, 2019, the final hearing was scheduled for July 30, 2019. On

February 19, 2019, Petitioners (now through counsel) filed an Amended

Petition (under protest), asserting that Petitioners are not “claimants” and

that the claim is not compensable under the Plan.

The final hearing scheduled for July 30, 2019 , was continued on July 16,

2019, and rescheduled for September 26, 2019. On July 26, 2019, Petitioners

filed a motion for a re - examination of Gianna by one of Respondent’s medical

experts, Laufey Sigurdardottir, M.D. Said motion was granted on August 20,

2019.

Following the filing of a Joint Stipulation of the Parties Regarding

Hearing Date and Case Schedule, on September 16, 2019, the final hearing

was continued to March 4, 2020.

As Dr. Sigurdardottir, M.D. , was determined to be unavailable to conduct

the reexamination, on November 21, 2019, an Order Granting Motion to

Compel was issued, requiring Petitioners to make Gianna available for examination by Luis Bello - Espinosa, M.D. On January 17, 2020, subsequent

to the examination by Dr. Bello - Espinosa, R espondent filed an Amended

Response to Petition for Benefits, wherein it was asserted that Respondent

was “now of the opinion that this claim is compensable,” and requested a

hearing to determine compensability.

On January 23, 2020, Intervenors filed a Motion for Continuance of Final

Hearing and for an Amended Case Schedule. Said motion was granted , and

the final hearing was rescheduled for August 25 and 26, 2020.

On July 15, 2020, this matter was reassigned to the undersigned for all

further proceedin gs. On August 19, 2020, the parties’ Pre - Hearing

Stipulation and Notice of Filing Stipulated Record were filed.

The final hearing proceeded, as scheduled, via Zoom Conference, on

August 25, 2020. At the final hearing, the parties moved, without objection ,

for admission of all exhibits in the previously filed Joint Stipulated Record

(Joint Exhibits A through MM). Said exhibits were admitted. The parties

further mutually agreed to the admission of the stipulated facts as set forth

in the paragraph E of the parties’ Pre - Hearing Stipulation and stipulated

that no additional proof at hearing would be required regarding said facts. In

lieu of presenting live testimony, the parties stipulated and mutually agreed

to the presentation of their respective cases solel y by the admission of the

aforementioned exhibits and the presentation of a closing argument.

Upon the conclusion of the final hearing, the parties stipulated to the

submission of proposed final orders within 30 days of the filing of the

transcript and t o the issuance of the undersigned’s Final Order on or before

60 days from the filing of the transcript. The T ranscript was filed on

September 23, 2020. The parties timely filed proposed final orders, which

have been considered in the preparation of this Fi nal Order.

F INDINGS O F F ACT

Pursuant to the parties’ Join t Pre - Hearing Stipulation, the Findings of

F act set forth, verbatim, in paragraphs 1 through 5 are stipulated to by the

parties.

1. Gianna was a live at birth .

2. Gianna had a birthweight in excess of 2 , 500 grams .

3. Gianna suffered an injury to her brain caused by oxygen deprivation

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

post - delivery period.

4 . During the course of labor, delivery, or resuscitation in the im mediate

post - delivery period, obstetrical services for Jennifer Chavez, natural mother

of Gianna were delivered by a Neurological Injury Compensation Association

( NICA ) partici pating physician as defined in s ection 766.302 and 766.309.

5. Jennifer Chavez signed NICA notices on the NICA notice documents in

Joint Exhibit BB on the dates indicated on the documents.

6. Gianna was born on August 9, 2017, at Shands. It is undisputed that

Shands is a “hospital,” as defined by section 766.302.

7. Benjamin F. Irby , M.D., a University of Florida attending obstetrician

(OB); Leigha High, M.D., a University of Florida resident OB; and Stephanie

Tootle, M.D., a University of Florida resident OB, were participating

physicians, as defined i n section 766.314 , who delivere d obstetrical services

for Jennifer Chaves during the course of labor, delivery , or resuscitation in

the immediate post - delivery period.

Compensability 1 :

8. Respondent initially retained Laufey Sigurdardottir, M.D., a board

certified child neurologist and epileptologist, to review the available medical

records, conduct a neurological examination, and opine as to whether Gianna

met the criteria for a birth - related neurological injury .

9. Dr. Sigurdardottir conducted her examination of Gianna on October 3,

2018, when Gianna was almost 14 months old. Dr. Sigurdardottir’s

Independent Medical Examination report begins with a summary of the

subject pregnancy and birth, and provides as follows:

Gia n na was born at 40 weeks gestation to a G7P2

healthy female afte r normal pregnancy via acute

cesarean section after failed VBAC complicated by terminal bradycardia. The infant was born with

Apgar scores of 1 after one minute, 6 after 5

minutes and 6 at 10 minutes, 6 after 15 minutes. Cord gas: pH 6.86 pCO2 101 BE - 26. Patient had

respiratory distress and was admitted in critical condition to NICU UF Health Jacksonville. Birth

weight 7 lb 11 oz, HC 34 cm (20th percentile).

Neonatal course was pertinent for: neurologic

1 Section (B) of the parties’ Pre - Hearing Stipulation, entitled “General Statement of Each

Party’s Position,” provides that “Petit ioners contend that the claim of Gianna Chavez is not

compensable and that there was a lack of notice given to Jennifer Chavez.” Section (G) of the Pre - Hearing Stipulation, entitled “Issues of Fact Which Remain To Be Litigated,” provides,

inter alia , “[w]h ether Gianna Chavez suffers from a permanent and substantial mental

impairment?”

depression. She completed cooling protocol, had 2

sei zures and was treated with phenobarbital. EEGs

showed a burst suppression pattern early on and

improvements noted by dol 13 (8/22/2017) when

EEG showed mild abnormalities with excessive

multifocal sharp waves. No electrographic seizures

were captured. Phen obarbital levels were initially

(50) high but it was discontinued at age one week of life. MRI (8/14/2017) showed extensive damage:

Diffusion weighted changes in bilateral pre and

post central gyri, corpus callosum, thalami,

pulvinar, globus pallidi and b ilateral cerebral

peduncles. Lactic acid elevation and elevated choline evels [sic] were seen in left thalamus and

basal ganglia. All findings suggestive of an

ischemic event. Patient had initial neurologic depression at birth but showed improvement until

discharge on dol 14.

She went home with oral fee d s but had FTT and

was a very slow feeder resulting G tube placement

at age 9 months.

10. Dr. Sigurdardottir’s report memorialized Gianna’s developmental

history as follows:

Gianna has serious delays in motor milestones and

carries diagnosis of cerebral palsy. The patient is

non - ambulatory at this time. Developmental

milestones have been as follows: smiled at three

months, does not have full head control, she cannot

roll over and not sit unassisted. She can hold toys

briefly but not pass from left to right or back. She

will drop items from hands and can only pull toys

towards mouth for brief period. She says 2 - 3 words.

She smiles and enjoys her parents and siblings. She

will get excited if mother says: “ Daddy’s home.” She

is in Speech therapy at Nemours Jacksonville and a

recently completed standardized language

assessment (REEL) resulted in normal emerging

language abilities, with standard score of 93 and an

age equivalent of 12 months at her current age of

14 months.

Mom feels she is stronger on the left but she will

preferentially use the right hand.

11. While conducting her examination, Dr. Sigurdardottir documented

several findings of relevance to the issue of Gianna’s mental condition. First,

it w as noted that Gianna was appropriately apprehensive during the

examination, and looked towards her parents for comfort and was easily

consoled by them. Second, although she was babbling in conversational tone ,

she was not uttering understandable words. Thi rd, she noted that Gianna

has “normal saccades and pursuit and will identify target in VF swiftly

and accurately.” 2 Specifically, with respect to Gianna’s mental status,

Dr. Sigurdardottir documented that she was “[a]wake, alert and engaged.

Babbling, dr ooling.”

12. In summary, Dr. Sigurdardottir found Gia n na to have “substantial

delays in motor abilities with emerging spastic quadriplegia but only minimal delays in language development in recent standardized testing.” Her report

concluded as follows:

I n light of evidence presented, I believe Gianna

does not fulfill criteria of a substantial mental impairment at this time but that her physical impairment is permanent and substantial. I do not feel that Gianna should be included in the NICA program due to her having preserved language

development. I am available for any additional questions, or to review additional medical records if needed.

13. Based on the above discussed findings and opinions, Respondent’s

initial Response to the Petition suggested th at, based on its review of the

claim, Gianna had not suffered a “birth - related neurological injury” as

2 Dr. Sigurdardottir explained that “normal saccades” means that she will follow something

that is moving in front o f her eyes and when the object is brought into the visual field she

will accurately look to the object and identify that it is entering the visual field.

defined in section 766.302(2) and, therefore, the claim was not compensable

under the Plan.

14. Dr. Sigurdardottir was deposed on August 3, 2020, and te stified that

the findings and opinions contained in her report were accurate at the time of

the examination and , as she had not subsequently examined Gianna , she had

no reason to dispute or alter the same. When questioned concerning her

opinion that Gianna did not fulfill the criteria of a substantial mental

impairment, she was asked to define the term “substantial.” The following

exchange transpired:

Q. What does the term “substantial” mean in this

context as a pediatric neurologist?

A. Substantial is not a word that we use in medical

language usually, so -- we would use mild,

moderate, and severe, and I would – I would say

that substantial is severe.

* * *

Q. Are those the terms that are used in the

literature by peer - reviewed articles distributed in

Europe and the United States?

A. Yes. We would use the word “disability,” so we have -- we tend to have more than just a single

word to -- to describe. I think we would want more

information. We would want to know if the person

were below what we consid er borderline and

normal, and normal is a pretty broad -- like on IQ

scores and -- and like the developmental quotient

that she got in her language, 85 to 115 would be

completely normal, and then we have a borderline

from 70 to 85, and then below 70 we tal k about a

disability and within the disability range, we have

mild, moderate, severe, and profound.

Q. Okay. And just so I understand, based on your

examination and the test results that you reviewed,

this child’s mental function, at the time of your

exa m, was actually in the normal range; is that

correct?

A. So the – the standardized testing was found to

be completely in the normal range at that time.

Q. And you didn’t –

A. I didn’t find anything on my exam that told me

that wasn’t true.

15. Dr. Sigurdardottir further credibly testified that not every child who

has less than normal function in a particular domain will fall within the

category of one who has a severe or substantial impairment.

16. In formulating her opinions, Dr. Sigurdardottir re lied, in part, upon

Gianna’s results from a previously administered receptive - expressive

emergent language (REEL) evaluation . Dr. Sigurdardottir testified that the

REEL evaluation is “the best we have.” She explained that Gianna’s score of

93 was within “n ormal limits.”

17. Given Gianna’s age at the time of examination, and her lack of

subsequent contact with Gianna, Dr. Sigurdardottir credibly testified that

she would defer to others concerning the subsequent trajectory of Gianna’s

injury or development. The undersigned finds that Dr. Sigurdardottir

possesses significant education, training, and expertise and is well - qualified

and credentialed to render the above - no ted opinions. The undersigned finds

her opinions as stated above to be credible.

18. On Jan uary 10, 2020, when Gianna was 29 months old, she was

examined by Louis Bello - Espinosa, M.D. Dr. Bello - Espinosa is board certified

in child neurology and neurology; epilepsy; clinical neurophysiology and

epilepsy monitoring. Dr. Bello - Espinosa was tasked w ith r eview ing the

ava ilable medical records and conducting an examination to determine

whether Gia n na suffers from a permanent and substantial mental and

physical impairment; and, if so, whether the impairment was consistent with

a neurological injury to t he brain or spinal cord acquired due to oxygen

deprivation or mechanical injury.

19. Dr. Bello - Espinosa’s examination report concludes with the following

summary:

Gianna is a 2 - year 5 - month old girl with a history

of severe hypoxic - ischemic encephalopat hy of birth.

She was documented in the NICU to have acute

electrographic seizures, as well as MRI of the brain

obtained on day 4th of life which were all indicative

of an acute hypoxic - ischemic injury. On here [sic]

examination is evident Gianna has severe

neurological sequela. At 2 - year 5 - month of age, she

was slow smiling and tracking. She has mild axial

hypotonia, and significant hypertonia in both arms

and legs, including sustained fishing, which is

indicative of spastic quadriparetic cerebral palsy. Sh e continues receiving therapies.

Results as of question 1:

Gianna is found to have substantial physical and

mental impairment at this time.

Results as of question 2:

In reviewing all the available documents, the evolution of her symptoms, the acut e brain MRI

changes, her acute neonatal seizures, it is evident

that she had an acute hypoxic event perinatally.

The injury felt to be acquired due to oxygen deprivation of the brain. The injuries are felt to be

birth related.

20. While conducting the ex amination, Dr. Bello - Espinosa documented

several findings of relevance to the issue of Gianna’s mental condition.

Concerning her developmental history, he documented the following:

She only started with support only at 18 - month

only [sic]. She has never crawled. She has never

walked independently. She only says about 10 -

words. Rarely combines mom and dad. She appears

to understand simple command. She smiles and engages when parents play and communicate with

her.

21. Dr. Bello - Espinosa documented that, o n neurological examination,

Gianna “was awake, she smiled and tracked, albeit slowly. She did not say

words during the examination. She did not follow directions.” Based on

Dr. Bello - Espinosa’s examination and report, Respondent filed an Amended

Response to Petition for Benefits, now asserting that Petitioners’ claim was

compensable under the Plan.

22. Dr. Bello - Espinosa was deposed on June 19, 2020. His ultimate

opinion is that Gianna does have a substantial and permanent mental and

physical impairment. In support of his opinion with respect to mental

impairment he testified that during the examination he could not assess

Gianna’s ability to learn or her memory skills because she did not

communicate. Her language ability, or lack thereof, was assessed by her

failure to respond to or follow directions and her lack of communication.

As Gianna had not increased her verbal ability since examined by

Dr. Sigurdardottir, he opined that she was not making progress verbally and

that her language skills were not c ontinuing at a pace consistent with her

age.

23. Based on his review of the medical records, Dr. Bello - Espinosa credibly

testified that Gianna had suffered variou s and deficient “restriction[s]

involving the motor areas of the brain.” Specifically, he opin ed that she

sustained injuries to the thalamus, the basal ganglia, the pulvinar and

cerebral peduncles, as well as microhemorrhages on the bilateral precentral

gyrus. Those injuries, in his opinion, can affect both the motor and cognitive

functions of a ch ild.

24. Dr. Bello - Espinosa further testified that Gianna has been diagnosed

with severe cerebral palsy. As a result, he opined that she is more likely than

not to continue to have mental impairment or functioning in the future. In

support of this positio n, Dr. Bello - Espinosa testified that “[a]ll of the studies

that have been done in patients with severe hypoxic ischemic injury with severe cerebral palsy have also been found to have in a great majority severe

intellectual disabilities.”

25. Dr. Bello - Esp inosa credibly testified that, as a pediatric neurologist,

he does not perform intellectual assessments on his patients, as that is outside of his specialty and falls within the area ambit of a neuropsychologist

or child psychologist. He conceded that he c ould not provide a percentile range for the level of cognitive impairment that Gianna had, as compared to

other children. Dr. Bello - Espinosa further testified as follows:

Based upon the clinical spheres of training of 35 years, I can see when a child, ba sed upon what they are doing. Whether they have substantial impairment or not. So that was the basis for my

assessment. A child who has severe cerebral palsy

and based upon the clinical evidence of scientific

studies that almost all of them have severe -- injury

bilaterally, they will have substantial mental impairment. So the positive predictor value of those

based upon the examination has been proven to be

the case as enough for them to be classified as having substantial mental impairment.

26. When que stioned concerning his opinion that Gianna sustained a

substantial mental impairment, Dr. Bello - Espinosa was asked to define his

use of the term “substantial.” He defines the term “substantial” as any level

of impairment less than normal or optimal. Specif ically, Dr. Bello - Espinosa

testified as follows:

Q. Now, in the report you also noted that there

were, in your words, “substantial mental

impairment,” correct?

A. Yes.

Q. Okay. And how do you define substantial?

A. Anything that is below the expect ed – the

optimal. Let me rephrase the answer. She’ll be up

to – the substantial should be the optimal cognitive

function for her age.

* * *

Q. Now, earlier, you – you used the word –

withdrawn. Earlier you said that the mental

impairments were substanti al because it was below

optimal. Am I understanding you right?

A. Yes.

Q. All right. Is everyone who falls below optimal in your view considered to have a substantial mental impairment?

A. Yes.

Q. Okay. Now, does optimal represent the normal intell ectual function of a child of the same age as

the infant petitioner in this case?

A. Could you repeat the question? Sorry.

Q. So is it your definition – withdrawn. Does

optimal to you in this case mean a person who is the infant, Plaintiff’s age two ye ars and five months

as of the time of your examination who does not

have any mental deficits at all?

A. Just, pardon me, I don’t understand the – the –

what the question was. Optimal means that it’s suspected to have the normal function for a two

years an d a five - month old.

Q. Okay. So anybody who doesn’t have normal

function in a two year five month old child would be

less than optimal? Is that what you’re saying?

A. Yes.

Mr. D’Alesio: Objection.

Q. And that that [sic] person would also, in your

op inion, have a substantial impairment? Is that

what you’re saying?

A. Yes.

Q. All right. Now, certainly some kids are below

optimal to a greater degree than others, correct?

A. Yes.

Q. But it’s your testimony that they all still fall within the categ ory of substantial no matter how

severe the delays are. Is that your testimony?

A. Yes.

Q. Now, are you able to quantify for me in any more

precise terms than substantial or less than optimal

the severity of the defect in mental functioning that you be lieve the infant petitioner in this case based

on your examination?

A. No.

27. The undersigned finds that Dr. Bello - Espinosa possesses significant

education, training, and expertise and is well - qualified and credentialed to

render the above - noted opini ons. His opinion that Gianna sustained injury to

the brain caused by oxygen deprivation or mechanical injury occurring in the

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

period in a hospita l is credited. His opinion that the injury rendered Gianna

permanently and substantially physically impaired is also credited. With

respect to mental impairment, the undersigned credits his opinion that

Gianna has sustained a permanent mental impairment. The undersigned,

however, finds h is o pinion with respect whether Gianna sustained a

significant mental impairment to be less persuasive and of limited value due

to his overly inclusive definition of the term “substantial.”

28. On February 10, 2020, Gianna, now 30 months old, presented to

Roby n J. Cohen, Ph.D., a clinical/developmental neuropsychologist, for an

independent neuropsychological evaluation to determine if she was

permanently and substantially mentally and physically impaired due to a

birth - related neurological injury. No testimony from Dr. Cohen was admitted;

however, her report was admitted without objection. Pursuant to her report,

Dr. Cohen reviewed the birth - related medical documentation, reviewed

Gianna’s early development history, conducted a clinical interview with

Petitioner s, and administered the Wechsler Preschool and Primary Scale of

Intelligence, 4th Edition (WPPSI - IV). 3 With respect to the Gianna’s results

from the WPPSI - IV , Dr. Cohen’s report documented the following:

On this administration of the WPPSI - IV, Gianna

att ained a Full Scale IQ of 91, which is in the average range for her age. Her true IQ score is estimated to range between 86 (low average) and 97 (average). Her lowest score on the WPPSI - IV

was on a task of receptive vocabulary (9th

percentile), and her high est score was on a task of

picture memory (63rd percentile). Motor delays and

expressive language delays affected testing, and as improvements are made in these domains,

intellectual assessment may be more reliable.

Indeed, intellectual assessment in any c hild 2.5

years is usually interpreted with caution.

29. Dr. Cohen’s conclusion, as set forth in the report, provides that

Gianna’s overall cognitive and intellectual ability was estimated to be within

the average range; however, she cautioned that, at th e present time, it could

not be concluded as to whether she has sustained a substantial and

3 As part of the evaluation, Jennifer Chavez also completed the Developmental Profile, Third

Edition and the Adaptive Behavior Assessment Scales, Third Editio n.

permanent mental impairment. Specifically, she concluded her report as

follows:

Results of the current evaluation found impaired

motor and expressive language, but her overall

cognitive/intellectual ability was estimated to be

within the average range.

Unfortunately, many of Gianna’s adaptive skills

are delayed, which are partially reflective of her

motor - skill deficits associated with Cerebral Palsy.

Furthermore, her expressive language delays likely

also reflect, at least in part, some oral - motor

deficits. Gianna is quite young, and many cognitive

abilities have not yet come online for typical two - year olds (e.g., executive functioning). Further,

other cognitive skills (e.g., processing speed) are not

yet able to measured in children so young. It is the opinion of this examiner that at the present time, it cannot be concluded that Gianna has a substantial

and permanent mental impairment; however, this

possibility cannot be ruled out either at such a

young age. Repeat testing in 2 - 4 years would have

much better predictive validity in answering this question of the severity and/or permanence of her

mental impairment.

30. Avrum Pollock, M.D., who is board certified in neuroradiology and

diagnostic radiology, was retained by Intervenors to review the medical

records and opine as to whether Gianna sustained an injury to her brain

caused by oxygen deprivation or mechanical injury occurring in the course of

labor, delive ry, or resuscitation in the immediate post - delivery period in a

hospital . Dr. Pollock reviewed the medical records, including a head

ultrasound obtained on August 10, 2017, a n MRI of the brain obtained on

August 14, 2017, and a n MRI of the brain obtained o n January 4, 2018.

31. In his deposition testimony, Dr. Pollock opined that Gianna sustained

a profound hypoxic (lack of oxygen) ischemic (lack of blood flow) injury to the

brain. He further opined that to a reasonable degree of medical probability,

the i njury occurred “within a 24 - hour period of delivery on either side.”

Additionally, he opined that the brain injury is permanent. Dr. Pollock,

however, had no opinion as to the relationship between the injury and how

the injury has manifested or will manife st with Gianna from a clinical

perspective. Indeed, when questioned as to whether the injury is permanent,

Dr. Pollock testified as follows:

Uhm, yes. But, again, I’m – I’m loath to try and

correlate the imaging with the clinical outcome only

because, uhm , I have been wrong as many times as

I have been right, and I can tell you from experience that I’ve looked at cases that look fairly mild and the child is neuro - devastated and I’ve

seen cases that look horrible and the child may just

have ADD or – or – or , uhm, learning disabilities,

so it’s difficult.

As I said, there’s – there’s not really a one - to - one

relationship with these cases. Some children are wheelchair - bound and have cerebral palsy and

other children just have learning disabilities, so that’s w hy I’m – that’s swimming way out of my

area of expertise and that’s why I don’t – I don’t try

and correlate the two, ‘cause I will be wrong more

than I’m right.

32. Dr. Pollock’s opinions as set forth above are credited.

Notice

4 :

33. As stipulated by the parties, “ Jennifer Chavez signed NICA notices on

the NICA notice documents in Joint Exhibit BB on the dates indicated on the

documents. ” The referenced documents are Shands forms containing two

4 Section (B) of the parties’ Pre - Hearing Stipulation, entitled “General Statement of Each

Party’s Position,” provides that “Petitioners contend that the claim of Gianna Chavez is not

compensable and that there was a lack of notice given to Jennifer Ch avez.” Section (G) of the

Pre - Hearing Stipulation, entitled “Issues of Fact Which Remain To Be Litigated,” provides,

inter alia , “[w]hether Jennifer Chavez was provided a NICA brochure during her prenatal

and hospital visits during her pregnancy?” Although Petitioners do not raise the notice issue

in their proposed final order, in compliance with section 766.309(1)(d), the undersigned shall

address the issue.

sections: a “Hospital Notice to Obstetric Patient” section, a nd a “Physician

Notice to Obstetric Patient” section. The forms are identical in content and

are dated June 20, 2017; July 2 7, 2017; August 5, 2017; and August 8, 2017,

respectively. Each form provides the following:

HOSPITAL NOTICE TO OBSTETRIC

PATIENT

( See Section 766.316, Florida Statutes)

I have been furnished information prepared by the

Florida Birth - Related Neurological Injury

Compensation Association (NICA) on behalf of

Shands Jacksonville Medical Center, Inc. For specifics on the program, I unders tand I can contact

the Florida Birth - Related Neurological Injury

Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida, 32317 - 4567, 1 - 800 -

398 - 2129. I specifically acknowledge that I have

received a copy of the brochure prepared by NI CA.

PHYSICIAN NOTICE TO OBSTETRIC

PATIENT

(See Section 766.316, Florida Statutes)

I have been furnished information prepared by the Florida Birth - Related Neurological Injury

Compensation Association (NICA)

on behalf of ALL

physicians and nurse midwives including

University of Florida College of Medicine

physicians and nurse midwives, who practice

obstetrics or perform obstetric services at this facility. I have also been advised that the above physicians and nurse midwives are participants in

the NICA pr ogram, and that limited compensation

is available in the event certain neurological injury

may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth - Related Neurological

Injury Compensatio n Association (NICA), Post

Office Box 14567, Tallahassee, Florida, 32317 - 4567,

1 - 800 - 398 - 2129. I specifically acknowledge that I

have received a copy of the brochure prepared by

NICA.

34. On each of the four forms, Jennifer Chavez printed her name above

the “Printed Patient Name” line; printed her social security number above

the “Patient Social Security Number” line; and signed her name above the

“Signature of Patient” line. The handwritten date and time on each section,

as well as the signature above th e “Witness” line , were written by the

registration clerks who registered Jennifer Chavez during her initial prenatal

visit on June 20, 2017, and on her three subsequent hospital visits on

July 2 7 , 2017; and August 5 and 8, 2017.

35. The handwritten infor mation on the forms is immediately below the

above - quoted passage that provides “I specifically acknowledge that I have

received a copy of the brochure prepared by NICA.” The NICA brochures are

entitled “Peace of Mind for an Unexpected Problem.”

36. In Pe titioners’ Answer to Intervenors’ Request for Admissions 11

and 12, filed at DOAH on May 15, 2018, Petitioners admitted receiving the

NICA brochure on June 20, 2017 and admitted receipt of a NICA brochure on

August 8, 2017, after Gianna was born. At Ms. C havez’s deposition,

conducted on July 12, 2019, however, she testified that she never received a

NICA brochure, or otherwise could not recall receiving one until after Gianna

was born.

37. Ms. Chavez’s testimony that, despite her signature on the form, sh e

did not receive the NICA brochure on four separate occasions, is contradicted by the testimony of three registration clerks, who consistently and credibly

testified that during Ms. Chavez’s prenatal visit and her subsequent hospital

visits, they followed the customary, habitual, and routine practice in

providing NICA brochures to patients upon registration at the clinic and

hospital.

38. The undersigned finds, based upon the totality of credible evidence,

that it is more likely than not that Ms. Chavez w as provided a NICA

brochure during her prenatal clinic visit of June 20, 2017, and on each of her

hospital visits on July 27, 2017; August 5, 2017; and August 8, 2017. The

undersigned further finds that Intervenors provided notice to Petitioners of

their p articipation in the Plan.

C ONCLUSIONS O F L AW

39 . DOAH has jurisdiction over the parties to and the subject matter of

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

40 . The Plan was established by the Legislature “for the purpose of

providing compensat ion, irrespective of fault, for birth - related neurological

injury claims” relating to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

41 . Section 766.301(2) provides that it is “the intent of the Legislature to

provide compensation , on a no - fault basis, for a limited class of catastrophic

injuries that result in unusually high costs for custodial care and

rehabilitation.”

42 . The injured infant, her or his personal representative, parents,

dependents, and next of kin may seek compe nsation 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, has “45 days from the date of service of a complete claim . . . in which to file a response to

th e petition and to submit relevant written information relating to the issue

of whether the injury is a birth - related neurological injury.” § 766.305(4), Fla.

Stat.

43 . If Respondent determines that the injury alleged is a claim that is a

compensable birth - related neurological injury, it may award compensation to

the claimant, provided that the award is approved by the ALJ to whom the claim has been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

Respondent disputes the claims, as here, the disput e 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.

44 . In its present posture, the undersigned is required to make the

following threshold determinations ba sed 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 caus ed 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 teaching hospital sup ervised by

a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

* * *

(d) Whether, if raised by the claimant or other party, the factual determinations regarding the

notice requ irements in s. 766.316 are satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations.

§ 766.309(1), Fla. Stat. An award may be sustained only if the ALJ concludes

that the “infant has sustained a birth - re lated neurological injury. . . .”

§ 766.31(1), Fla. Stat.

45 . The term “birth - related neurological injury” is defined in

section 766.302(2) as follows:

“Birth - related neurological injury” means injury to

the brain or spinal cord of a live infant weig hing 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 impaired.

46 . The phrase “substantial mental impairment” is neither defined by

statu t e nor present rule. In Florida Birth - Rel ated Neurological Injury

Compensation Association v. Florida Division of Administration Hearings ,

686 So. 2d 1348 (Fla. 1997) [hereinafter B i rnie ], the court was asked to

resolve the certified question as to whether, under the Plan, an infant must

suffer b oth substantial mental and physical impairment, or can the definition

be construed to require only substantial impairment, mental and/or physical.

In resolving the question, the B i rnie court explained that “[w]here, as here,

the legislature has not defined the words used in a phrase, the language

should usually be given its plain and ordinary meaning.” Bi rnie , at 1354,

citing Southeastern Fisheries Ass’n , Inc. v. Dep’t Nat. Res. , 453 So. 2d 1351

(Fla. 1984). “Nevertheless, consideration must be accorded no t only to the

literal and usual meaning of the words, but also to their meaning and effect

on the objectives and purposes of the statu t e’s enactment.” Id .

47 . The Bi rnie court concluded that the NICA statute is written in the

conjunctive and requires a pe rmanent and substantial impairment to both

the physical and mental elements. Id . at 1356. The B i rnie court did not

establish a definition or test for the determination of “substantial mental

impairment,” but found that the underlying decision by the ALJ mu st be

supported by compete nt and substantial evidence.

48 . In Adventist Health System/Sunbelt, Inc. v. Florida Birth - Related

Neurological Injury , 865 So. 2d 561 (5th DCA 2004) [hereinafter Shoaf ], the

Fifth District Court of Appeals likewise rejected sett ing forth a formulaic

approach to the resolution of the term “substantial mental impairment.”

Addressing the argument that B i rnie had created a definition, the Shoaf

court countered:

It is apparent, however, that the B i rnie court did

not define or redefin e “substantial mental

impairment.” They simply said that the decision of

the ALJ was supported by competent substantial

evidence. All this language in B i rnie suggests is

that, under NICA, the identification of a substantial mental impairment may include no t

only significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development.

Shoaf , at 567.

49 . The Shoaf court again reiterated that, as the legislature did not d efine

the terms used in the test for NICA qualification, these terms are to be given

their ordinary meanings. Id . at 568. Indeed, the Shoaf court further directed

that:

The legislature left the application of the terms they used to the administrative law judges

designated by statute to hear these claims and to

apply the expertise they develop in carrying out

this task to determine from the evidence adduced

in each case whether these for NICA is met.

* * *

In cases such as the one before us, the ALJ, as fact

finder, brings his own background, training,

experience and expertise to the task of weighing

and evaluating very sophisticated evidence. The

child’s advocate likewise brings his own

communication an d strategic skills to the fact -

finding process; and finally, the evidence in each

case will vary in its power to persuade. This will be

especially true in cases where the opinions of

experts are concerned.

Id. at 568 - 569 .

50. Finally, the Shoaf court, in concluding that the underlying decision by

the AL J was supported by competent substantial evidence, advised that the

term “substantial mental impairment” is broad enough to encompass more

than just damage to cognitive capacity and more than merely the inability to

translate cognitive capabilities into ad equate learning in a normal manner or

impairment of social and vocational development. Id . at 569.

51. Here, Petitioners are not seeking compensation under the Plan, but

instead are seeking to establish the right to sue in a court of law, and,

therefore, a re not claimants. Ben ne t t v. St. Vincent’s Med. Ctr. , 71 So. 3d 828,

844 (Fla. 2011). As the proponents that Petitioners’ claim is compensable,

Respondent and Intervenors carry the burden of proof.

52. The undersigned concludes that sufficient evidence wa s presented, or

otherwise stipulated or admitted by the parties to establish that Gianna was born a live infant on August 9, 2017, at Shands, a “hospital” as defined

by section 766.302; that Gianna was a single gestation, weighing over

2,500 grams at birt h; that she suffered an injury to her brain caused by

oxygen deprivation occurring in the course of labor, delivery, or resuscitation

in the immediate post - delivery period ; and that the injury to her brain

rendered her permanently and substantially physica lly impaired, and

permanently mentally impaired. No evidence was presented to suggest that

Gianna’s injury was caused by genetic or congenital abnormality or due to

infection.

53. The undersigned further concludes that sufficient evidence was

presented to establish that d uring the course of labor, delivery, or

resuscitation in the immediate post - delivery period, obstetrical services for

Jennifer Chavez were delivered by Dr. Irby, Dr. High, and Dr. Tootle, who

were NICA participating physician s.

54. The pa rties to this proceeding presented one or more experts to

support their respective position as to whether Gianna is substantially

mentally impaired. All of the experts presented were well - qualified,

credentialed, and possessed extensive and significant tra ining and experience

in their respective discipline or area of expertise. The undersigned, in

considering whether Gianna sustained a substantial mental impairment,

concludes, however, that Dr. Bello - Espinosa’s interpretation of the term

“substantial” as le ss than optimal or normal, is overly broad. In reaching the

conclusion that Gianna is not substantially mentally impaired, the

undersigned finds more persuasive Dr. Sigurdardottir’s interpretation of the

term and her opinion that Gianna had not sustained a substantial mental

impairment.

55. Dr. Sigurdardottir’s opinion is supported by Dr. Cohen, who after

administering the WPPSI - IV, could not definitively conclude that Gianna has

sustained a substantial mental impairment . Similarly, Dr. Pollock,

notwithsta nding the scope of the brain injury as shown on radiological film,

could not opine as to whether Gianna has sustained a significant mental

impairment.

56. Having thoroughly reviewed and weighed the considered expert

opinions and evidence, the undersigned concludes that the better evidence supports the conclusion that Gianna’s injury at issue, based on the Findings

of Fact above, did not rendered her substantially mentally impaired. The

undersigned concludes that Respondent and Intervenors failed to present

sufficient evidence to establish that Gianna’s brain injury is substantial .

57. During the course of this litigation, the issue was raised as to whether

the notice requirements set forth in section 766.316 were met. With respect to

the notice issue, as the proponents of the proposition that appropriate notice

was given or that notice was not required, the burden on this issue of notice

is upon the Intervenors. Tabb v. Fla. Birth - Related Neurological Injury

Comp. Ass'n. , 880 So. 2d 1253, 1257 (Fla. 1st DC A 2004).

58. Section 766.316, entitled “Notice to obstetrical patients of participation

in the plan,” provides as follows:

Each hospital with a participating physician on

its staff and each participating physician, other

than residents, assistant resid ents, and interns

deemed to be participating physicians under

s. 766.314(4)(c), under the Florida Birth - Related

Neurological Injury Compensation Plan shall

provide notice to the obstetrical patients as to the limited no - fault alternative for birth - related

neurological injuries. Such notice shall be provided

on forms furnished by the association and shall

include a clear and concise explanation of a patient’s rights and limitations under the plan. The hospital or the participating physician may elect to hav e the patient sign a form acknowledging receipt

of the notice form. Signature of the patient acknowledging receipt of the notice form raises a

rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has

an emergency medical condition as defined in

s. 395.002(8)(b) or when notice is not practicable.

59. Here, based on the Findings of Fact set forth above, the undersigned

concludes that Intervenors have met their burden of es tablishing that the

notice requirements of section 766.316 were satisfied.

C ONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that:

1. Gianna did not sustain a “birth - related neurological injury,” as defined

in sect ion 766.302(2), and, therefore, Petitioners’ claim is not compensable

under the Plan.

2. Intervenors satisfied the notice requirements of section 766.316.

D ONE A ND O RDERED this 1 7 th day of November, 2020 , in Tallahassee,

Leon County, Florida.

T ODD P. R ESAVAGE

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 1 7 th day of November, 2020 .

C OPIES F URNISHED :

(via certified mail)

Jennifer Chavez

Marlon Chavez

10125 Hawks Hollow Road

Jacksonville, Florida 32257

(Certified No. 7019 2970 0000 6014 2192)

Ke nney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2970 0000 6014 2208)

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified No. 7019 2970 0000 6014 2215)

Daniel Joseph D'Alesio, Esquire

University of Florida

J. Hillis Miller Health Center Self - Insurance Program

7th Floor

580 West 8th Street Tower 1

J acksonville, Florida 32209

(eServed)

(Certified No. 7020 1290 0001 6309 8495)

John D. Jopling, Esquire

Dell Graham, P.A.

Suite B

2631 Northwest 41st Street

Gainesville, Florida 32606

(eServed)

(Certified No. 7020 1290 0001 6309 8501)

James F. Bush, Esq uire

Dell Graham, P.A.

203 Northeast 1st Street

Gainesville, Florida 32601

(eServed)

(Certified No. 7020 1290 0001 6309 8518)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified No. 7020 1290 0001 6309 8525)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7020 1290 0001 6309 8532)

Shevaun L. Harris , Acting Secretary

Health Qualit y Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7020 1290 0001 6309 8549)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law judge s hall 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 agency clerk 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).