18-005254N Lindsey Mcneil And Benjamin Galbraith, Individually And Parents Of Noelle Galbraith vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, November 13, 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

LINDSEY MCNEIL and BENJAMIN

GALBRAITH, individually and

parents of NOELLE GALBRAITH ,

Petitioners ,

Case No. 18 - 5254N

vs.

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent,

and

ADVENT IST HEALTH

SYSTEMS/SUNBELT, INC., d/b/a

ADVENTHEALTH ORLANDO,

Intervenor .

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on an Unopposed Motion for

Summary Final Order f iled by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (“NICA”), on

October 11, 2019.

STATEMENT OF THE CASE

On September 28, 2018, Petitioners, Lindsey McNeil and

Benjamin Galbraith, individually and as parents of Noelle

Gal braith (“Noelle”), a minor, filed a Petition for Determination

of Compensability Pursuant to Florida Statute Section 766.301

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

(“DOAH”) for the determination of compensability under the

Florid a Birth - Related Neurological Injury Compensation Plan

(“Plan”).

The Petition identified Kyle Crofoot, M.D., as the physician

who provided obstetric al services at the birth of Noelle on

February 9, 2017, at Adventist Health Systems/Sunbelt, Inc.,

d/b/a Ad ventHealth Orlando (“AdventHealth”) 1/ in Orlando, Florida.

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

October 16, 2018, and served AdventHealth that same date. NICA

was also served with a copy of the Petition on October 16, 2018.

On December 19, 2018, NICA filed its response to the

Petition, taking the position that Petitioners’ claim is not

compensable under the Plan. NICA requested that DOAH schedule a

hearing to determine compensability.

AdventHealth moved to intervene in this matter on

February 4, 2019, which was granted.

On October 11, 2019, NICA filed an Unopposed Motion for

Summary Final Order, requesting the Administrative Law Judge

enter a summary final order finding that the claim is not

compensable under the NICA statute because Noelle did not suffer

a “birth - related neurological injury” as defined in section

766.302(2) , Florida Statutes . In its motion, NICA represent s

that Petitioners do not oppose the motion. Petitioners have not

otherwise responded to NICA’s motion.

FINDINGS OF FACT

1. Noelle was born on February 9, 2017 , at AdventHealth

located in Orlando , Florida.

2. Upon receiving the Petition, NICA retained Donald

Willis, M.D., a board certified obstetrician/gynecologist

specializing in maternal - fetal medicine, as well as Laufey Y.

Sigurdardottir, M.D., a pediatric neurologist, to review Noelle’ s

medical condition . NICA sought to determine whether Noelle

suffered a “birth - related neurological injury” as defined in

section 766.302(2). Specifically, NICA requested its me dical

experts render an opinion whether Noelle experienced an injury to

the brain or spinal cord caused by oxygen deprivat ion or

mechanical injury occurring in the course of labor, delivery, or

resuscitation in the immediate post - delivery period ; a nd, if s o,

whether th is injury rendered Noelle permanently and substantially

mentally and physically impaired.

3 . Dr. Willis reviewed Noelle’ s medical records and

observed:

A cephalohematoma was noted on admission to

the nursery, but the baby was not felt to be

i n acute distress. Neurologic exam was

normal.

* * *

The child was seen in the ED at about 13 -

months of age for head trauma related to a

fall. MRI showed diffuse periventricular

white matter volume loss. Evaluation at

about 18 - months of age d escribed decrease

movement of left arm and leg. A diagnosis of

cerebral palsy with hemiplegia and partial

epilepsy was made.

4 . Dr. Willis then opined :

In summary, vaginal delivery was complicated

by a shoulder dystocia, lasting one - minute.

The baby wa s not depressed with Apgar scores

of 7/9. No resuscitation was required. The

baby was transferred to the nursery at about

16 hours after birth with decreasing blood

sugars and desaturations occurred in the

nursery. This would be after resuscitation

in t he immediate post - delivery period.

* * *

This child suffered a brain injury as

documented by the MRI findings. However, the

brain injury does not appear to be birth

related.

* * *

There was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

trauma to the brain or spinal cord during

labor, delivery or the immediate post -

delivery period.

5 . Dr. Sigurdardottir also reviewed Noelle’s medical

records, as well as conducted an independent medical exam of

Noelle on November 28, 2018. Dr. Sigurdardottir opined, within a

reasonable degree of medical probability:

Noelle Galbraith has substantial delays in

motor and mild delays in mental abilities.

* * *

Noelle has serious delays in motor milestones

and carries diagnosis of hemiplegic cerebral

palsy. She had delays in gross motor

development.

6 . Despite these findings, Dr. Sigurdardottir concluded

that:

In review of available documents, there is

evidence of impairment consistent with a

neurologic inju ry to the brain or spinal cord

acquired due to oxygen deprivation or

mechanical injury, but timing of injury to

the labor, birth or immediate post natal

period is not able to be determined.

* * *

I believe Noelle does not fulfill criteria of

a su bstantial mental and physical impairment

at this time. I do feel that Noelle should

not be included in the NICA program.

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

dispute the findings and opinions of Dr. Willis and

Dr. Sigurdardottir . Th eir opinions are credible and persuasive.

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

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

not compensable. NICA subsequently filed the Unopposed Motion

for Summary Final Order ass erting that Noelle has not suffered a

“birth - related neurological injury” as defined by section

766.302(2). Petitioners do not oppose NICA’s motion.

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to sections 766.301 through 766.316. The undersigned, as

an Administrative Law Judge, has “exclusive jurisdiction to

determine whether a claim filed under [NICA] is compensable.”

§§ 766.301(1)(d), 766 .304, and 766.311(1), Fla. Stat .

10 . The Florida Legislature established the Plan “for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims” relating to births

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

1 1 . To seek compensation under the Plan, 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. Stat. NICA, which administers the Plan, then has

“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.” § 766.305(4), Fla. Stat.

12 . 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 been

assigned. § 766.305(7), Fla. Stat.

1 3 . In this matter, however, NICA determined that

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

NICA filed the Unopposed Moti on for Summary Final Order,

requesting an order be entered finding that the claim is not

compensable.

14 . In reviewing the compensability of a claim, section

766.309(1) directs the Administrative Law Judge to make the

following determination based upon th e 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).

15 . 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 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

per manently 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.

16 . “ The [NICA] Statute is written in the conjunctive and

can only be interpreted to require permanent and substantial

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

Birth - Related Neurological Injury Comp. Ass’n v. Fla. Div. of

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

17 . In reviewing the injury in this matter, the undisputed

evidence establishes that Noelle did not sustain a “birth - related

determined that Noelle’s brain injury did not appear to be birth

related. Conseq uently, he concluded that, “There was no apparent

obstetrical event that resulted in oxygen deprivation or

mechanical trauma to the brain or spinal cord during labor,

delivery or the immediate post - delivery period.” Similarly,

Dr. Sigurdardottir opined th at Noelle only had “mild delays in

mental abilities.” Further, she could not connect Noelle’s

injury to the labor, birth , o r immediate post - natal period.

18 . Accordingly, based on the available evidence in the

record, the undersigned determines that Noe lle has not suffered a

“birth - related neurological injury” and is not eligible for NICA

benefits .

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of

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

DONE AND ORDERE D this 13 th day of November , 2019 , in

Tallahassee, Leon County, Florida.

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

Division of Administrative Hearings

this 13 th day of November , 2019 .

ENDNOTE

1/ AdventHealth Orlando was previously called Florida Hospital

Orlando, w hich is the name Petitioners used in their Petition to

identify the hospital at which Noelle was born.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

2360 Ch ristopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7011 1570 0003 4465 6204 )

Brooke M. Gaffney, Esquire

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

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(eServed)

(Certified No . 7011 1570 0003 4465 6211 )

Richard W. Bates, Esquire

Morgan & Morgan, P.A.

20 North Orange Avenue , Suite 1600

Orlando, Florida 32801

(eServed)

(Certified No. 7011 1570 0003 4465 6228 )

Travase L. Erickson, Esquire

Saalfield Shad, P.A.

245 Riverside Aven ue , Suite 400

Jacksonville, Florida 32202 - 4926

(eServed)

(Certified No. 7011 1570 0003 4465 6235 )

Benjamin Galbraith

Apartment 1834

2372 Lake Weston Drive

Orlando, Florida 32810

(Certified No. 7011 1570 0003 4465 6242 )

Lindsey McNeil

Apartment 1834

237 2 Lake Weston Drive

Orlando, Florida 32810

(Certified No. 7018 2290 0000 1309 8875 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7018 2290 000 0 1309 8882 )

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7018 2290 0000 1309 8899 )

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. Such proceedings are

commenc ed 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 - Relate d Neurological

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

1992).