18-006626N Carl Hilaire And Maysterline Sesse, On Behalf Of And As Parents And Natural Guardians Of Micah Hilaire, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 29, 2019.

Summary: Corrected Summary Final Order as to case style of certified copies mailed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL HILAIRE AND MAYSTERLINE

SESSE, on behalf of and as

parents and natural guardians of

MICAH HILAIRE, a minor,

Petitioners,

vs. Case No. 18 - 6626N

FLORIDA BIRTH - RELATED * CORRECT ED AS TO CASE

NEUROLOGICAL INJURY COMPENSATION STYLE OF CERTIFIED COPIES

ASSOCIA TION, MAILED

Respondent,

and

ST. MARY'S MEDICAL CENTER, INC.,

d/b/a ST. MARY'S MEDICAL CENTER,

Intervenor.

_______________________________/

* CORRECTE D SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon RespondentÓs

Motion for Summary Final Order (RespondentÓs Motion), filed

August 7, 2019. Petitioners did not file a response to

RespondentÓs Motion.

STATEMENT OF THE CASE

On December 17, 2018 , Petitioners filed a Petition 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 Neurological Injury Compens ation Plan (Plan). The

Petition named George OÓNeil, Jr., M.D., as the physician who

provided obstetric services at the birth of Micah Hilaire (Micah)

on December 6, 2016, at St. MaryÓs Medical Center in West Palm

Beach, Florida.

On December 28, 2018, D OAH mailed a copy of the Petition to

Respondent, Dr. OÓNeil, and St. MaryÓs Medical Center by

certified mail. Respondent was served with the Petition on or

before January 18, 2019. On January 9, 2019, St. MaryÓs Medical

Center, Inc., d/b/a St. MaryÓs Med ical Center, filed its Petition

to Intervene. Said petition was granted on January 29, 2019.

On July 24, 2019, after four extensions of time, Respondent

filed its Response to Petition for Benefits, suggesting that the

subject claim was not compensable, an d requesting a hearing to

address such issue. On July 25, 2019, the undersigned issued an

Order wherein the parties were ordered to confer and advise the

undersigned as to the need for a final hearing.

RespondentÓs Motion was filed on August 7, 2019. Th e

following day, Respondent filed its Response to Order of

July 25, 2019, representing that, despite diligent efforts, it

had been unable to confer with PetitionersÓ counsel but did not

believe a final hearing would be necessary. On August 15, 2019,

the undersigned issued an Order to Show Cause wherein Petitioners

were orde red to show cause in writing, on o r before August 22,

2019, why RespondentÓs Motion should not be granted. Petitioners

did not comply with the Order to Show Cause.

FINDINGS OF FACT

1 . Micah was born on December 6, 2016, at St. MaryÓs

Medical Center. She was a single gestation, weighing over 2,500

grams at birth.

2. Respondent retained Donald Willis, M.D., an obstetrician

specializing in maternal - fetal medicine, to review the medic al

records of Micah and her mother, Petitioner Maysterline Sesse,

and opine as to whether there was an injury to her brain or

spinal cord that occurred in the course of labor, delivery, or

resuscitation in the immediate post - delivery period due to oxygen

d eprivation or mechanical injury. In his report dated May 10,

2019, Dr. Willis set forth the following, in pertinent part:

Cesarean section was done for the non -

reassuring fetal heart rate (FHR) pattern.

The mother was not in labor. Birth weight

was 2,6 20 grams. Umbilical cord gas was not

done.

The baby was not depressed at birth. Apgar

scores were 8/9. No resuscitation was

required. Muscle tone was appropriate with a

strong cry after birth and the baby was

stated to be Ðcomfortable on room air.Ñ NICU

admission was not required.

Newborn hospital course was uncomplicated.

The baby was managed in the normal nursery

and discharged home three days after birth.

There was no seizure activity. No fetal head

imaging was done during newborn hospital

c ourse.

Gross motor delays were noted at 2 months of

age. Hemiplegia was subsequently diagnosed.

MRI was done at about 22 months of age. The

MRI showed significant chronic abnormalities

related to infarction in the right cerebral

hemisphere with cystic encephalomalacia.

* * *

The baby has brain damage as identified by

MRI at 22 months of age. The mother was not

in labor prior to birth. The baby was not

depressed at birth and did not require

resuscitation. The new born hospital course

was essential ly uncomplicated. 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 p eriod.

3. Attached to RespondentÓs Motion is Dr. WillisÓs

affidavit, dated August 5, 2019. In his affidavit, Dr. Willis

affirms, to a reasonable degree of medical probability, the

above - quoted findings and opinions from his report.

4. Respondent also retained Michael S. Duchowny, M.D., a

pediatric neurologist, to review the pertinent medical records,

conduct an Independent Medical Examination (IME) of Micah, and

opine as to whether she suffers from a permanent and substantial

mental and physical impai rment as a result of a birth - related

neurological injury. Dr. Duchowny reviewed the medical records,

obtained historical information from MicahÓs parents, and

performed an IME on July 9, 2019.

5. RespondentÓs Motion also relies upon the attached

affida vit from Dr. Duchowny, dated August 6, 2019. In his

affidavit, Dr. Duchowny testifies, in pertinent part, as follows:

It is my opinion that MICAHÓs evaluation

reveals neurological findings consistent with

a mild - moderate left hemiparesis with motor

impai rment primarily affecting upper and

lower extremities. In contrast, MICAH has

preserved cognitive function and social

awareness. She evidences slightly increased

muscle tone in the left distal upper and

lower extremities and increased deep tendon

reflexe s.

A review of MICAHÓs records reveals that she

was born at 36 weeks gestation at St. MaryÓs

Hospital and weighed 5 pounds 12 ounces. Her

Apgar scores were 8 and 9 at 1 and 5 minutes;

cord blood gases were not done. She remained

in the nursery for thr ee days and was

discharged home in good condition. Her

development proceeded satisfactorily but the

lack of motor development triggered an MRI

scan of the brain which revealed right

temporo - parietal cerebral hemispheric cystic

encephalomalacia with compen satory dilation

of the right lateral ventricle, findings

consistent with an old right middle cerebral

artery infarct.

MICAHÓs hemiparesis is most likely related to

an intra - uterine acquired cerebrovascular

accident, and is not birth - related. Her

cogniti ve level is age - appropriate and should

continue to develop normally in the future.

For these reasons, I am not recommending

MICAHÓs acceptance into the NICA program.

6. In his affidavit, Dr. Duchowny testifies that his

opinions are to a reasonable degr ee of medical probability. A

review of the file reveals that no contrary evidence was

presented to dispute the findings and opinions of Drs. Willis and

Duchowny. Their opinions are credited.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties to and the

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

Fla. Stat.

8. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to b irths

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

9. 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.

§§ 7 66.302(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 the

petition and to submit relevant written information relating to

the issu e of whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

10. 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 Administrative Law Judge (ALJ) to whom the

claim has been assigned. § 766.305(7), Fla. Stat. If, on the

other hand, Respondent disputes the claim, as here, the dispute

must be resolved by the assigned ALJ in a ccordance with the

provisions of chapter 120, Florida Statutes. §§ 766.304,

766.309, and 766.31, Fla. Stat.

11. In its present posture, the ALJ is required to make the

following threshold determination based upon the available

evidence:

(a) Whether th e 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 mechanical

injury a nd 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).

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

ALJ concludes that the Ðinfant has sustained a birth - related

neurological injury . . . .Ñ £ 766.31(1), Fla. Stat.

12. The term "birth - related neurological injury" is defined

in section 766.302(2) as follows:

"Birth - r elated 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

depriv ation 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.

13. The undisputed evide nce establishes that there was not

an injury to MicahÓs brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of labor,

delivery, or resuscitation in the immediate post - delivery period

in a hospital.

14. The undi sputed evidence further establishes that Micah

did not sustain a permanent and substantial mental impairment.

Thus, she did not sustain a birth - related neurological injury as

defined in section 766.302(2), Florida Statutes, and, therefore,

is not eligible for benefits under the Plan.

DONE AND ORDERED this 5 th day of September , 2019 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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 5 th day of September , 2019 .

COPIES FURNISHED:

(via certified mail)

Spencer Kuvin, Esquire

Law Offices of Craig Goldenfarb, P.A.

Suite 400

1800 South Australian Avenue

West Palm Beach, Florida 33409

(Certif ied No. 701 5 0640 000 3 7646 4270 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury C ompensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7015 0640 0003 7646 4287 )

Robert Scott Covitz, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon and Bonner

Suite 210E

1900 Northwest Corporate Bou levard

Boca Raton, Florida 33431

(eServed)

(Certified No. 7015 0640 0003 7646 4294 )

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified No. 7015 0640 0003 7646 430 0 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7015 0640 0003 7646 4317 )

Mary C. Mayhew, Secretary

Health Quality Assurance

Agency for Health Care Admi nistration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7015 0640 0003 7646 4 324 )

George OÓNeil, Jr., M.D.

Suite 103

927 45th Street

West Palm Beach, Florida 33407

(Certified No. 7015 0640 0003 7646 4331 )

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 Proce dure. 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 pr escribed 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).