18-006737N Whitnie Padron, As Parent And Natural Guardian Of Landen Padron, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, March 4, 2021.

Summary: Final Order entered approving stipulation for award of payments, expenses, and costs.

S TA TEMENT OF T HE C ASE

On December 13, 2018, Petitioner , Whitnie Padron, as parent and natural

guardian of Landen Padron ( " Landen " ), a minor, filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et seq. with the Division of

Administrative Hearings ( " DOAH " ) for a determination of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan (the

" Plan " ). Petitioner subsequently filed a Notice of Election of Remedies

Declining NICA Benefits on October 21, 2019, followed by an Amended

Petition Under Protest, as well as a Notice of Election of Remedies Declining

NICA Benefits, both filed on November 6, 2019. (Petitioner ' s four separate

pleadings are collectively referred to as the " Petition. " )

The Petition identified Ra chel A. Lambert, D.O., as the physician who

provided obstetrical services at Landen ' s birth on January 22, 2018, at

Morton Plant Hospital ( " Plant Hospital " ) in Clearwater, Florida.

DOAH served Dr. Lambert with copies of the initial Petition on

December 2 8, 2018, and served Plant Hospital that same date. DOAH also

served the Florida Birth - Related Neurological Injury Compensation

Association ( " NICA " ) with a copy of the initial Petition on December 28,

2018.

1

Dr. Lambert moved to intervene in this matter on January 14, 2019,

which was granted. Plant Hospital also moved to intervene on January 14,

2019, which was also granted.

On September 26, 2019, NICA filed a Notice of Compensability taking the

position that Petitioner ' s claim is compensable under the Plan.

1 Petitioner se rved copies of the three subsequent pleadings included as the

Petition on the other parties when they were filed with DOAH.

On November 7, 2019, NICA filed a Motion for Summary Final Order

requesting the Administrative Law Judge enter a summary final order

finding that Petitioner ' s claim is compensable under the NICA statute

because Landen suffered a " birth - related neur ological injury " as defined in

section 766.302(2) , and Dr. Lambert was a " participating physician " pursuant

to section 766.302(7). 2

Plant Hospital, on July 28, 2020, moved for a Motion for Summary Final

Order on the limited issue of whether Plant Hospital met the notice

requirement under section 766.316.

Dr. Lambert, on September 4, 2020, also filed a Motion for Partial

Summary Final Order asserting that she was not required to provide notice

under section 766.316 based on the circumstances of Landen ' s b irth.

F INDINGS OF F ACT

1. Landen was born on January 22, 2018, at Plant Hospital located in

Clearwater, Florida.

2. Rachel A. Lambert, D.O. , was the delivering physician for Landen ' s

birth at Plant Hospital. At that time, Dr. Lambert qualified as a " parti cipating physician " in the Plan as that term is defined in section

766.302(7).

3. Petitioner was admitted to Plant Hospital on January 21, 2018, to

deliver Landen. Upon her arrival, Petitioner reported that her membranes had spontaneously ruptured (her " water broke " ), and she was experiencing

contractions.

2 Respondent supplemented its motion with the Renewed Motion for Partial S ummary Final

Order, filed on August 24, 2020. Both Respondent ' s motions are considered in determining

this Order and are collectively referred to as the "Motion."

4. As part of her admission that day, Petitioner signed a Receipt of NICA

Information (the " Receipt " ) presented to her by Plant Hospital pursuant to

section 766.316. The Receipt notified Petitioner that Plant Hospital was

furnishing her information prepared by NICA and stated that " certain

limited compensation is available in the event certain types of qualifying

neurological injuries may occur during labor, delivery or resuscitation. "

5. Dr. Lamber t first examined Petitioner at 5:07 p.m. on January 22,

2018. Dr. Lambert had never seen Petitioner prior to this examination. The

nurse midwife tending to Petitioner contacted Dr. Lambert becaus e she was

the backup for the on - call obstetrician who was in volved in another surgery.

At that time, Petitioner had been in active labor since at least 11:30 a.m., and delivery was imminent.

6. Dr. Lambert immediately began working to deliver Landen. At

5:20 p.m., Dr. Lambert attempted a vacuum delivery (the first of several

attempts). Dr. Lambert ultimately delivered Landen, via cesarean section, at

7:12 p.m.

7. Prior to Landen ' s birth, Dr. Lambert did not provide Petitioner notice of

her participation in the NICA Plan or information regarding the Plan ' s

limited no - fault alternative for birth - related neurological injuries.

8. Landen weighed over 2,500 grams at birth. However, during the course

of labor, delivery, or resuscitation in the immediate postdelivery period,

Landen suffered an injury. Petitioner subsequen tly filed the Petition with

DOAH to determine whether Landen ' s injury qualified as a " birth - related

neurological injury " as defined in section 766.302(2).

9 . Upon receipt of the Petition, NICA retain ed Donald Willis, M.D., a

board - certified obstetrician/gy necologist specializing in maternal - fetal

medicine, as well as Michael S. Duchowny, M.D., a pediatric neurologist, to

review Landen ' s medical records and condition. NICA sought to determine

whether Landen suffered a " birth - related neurological injury " as d efined in

section 766.302(2). Specifically, NICA requested its medical consultants opine

whether Landen experienced an injury to the brain or spinal cord caused by

oxygen deprivation or mechanical injury which occurred in the course of

labor, delivery, or resuscitation in the immediate post - delivery period. And, if

so, whether this injury rendered Landen permanently and substantially

mentally and physically impaired.

10. Dr. Willis reviewed Landen ' s medical records and noted:

Delivery of the fetus at the ti me of Cesarean

section was difficult due to the presenting part

impacted in the maternal pelvis.

* * *

T he baby was depressed at birth . The baby was

described as pale and without respiratory effort or

tone at birth.

* * *

Seizure activity develop ed shortly after birth

. Transfer to St. Joseph ' s Women ' s Hospital was

arranged for body cooling due to suspected hypoxic

ischemic encephalopathy (HIE).

* * *

The newborn hospital course was complicated by multi - system organ failures, including respir atory

distress, seizures, subgaleal hematoma, oliguria, DIC and thrombocytopenia.

* * *

In summary, extraction of the baby at the time of

Caesarean section was difficult and resulted in a

depressed newborn. Apgar scores were 2/2/2. Resuscitation includ ed intubation, chest

compressions and multiple doses of Epinephrine

. Seizures developed shortly after birth. The

newborn hospital course was complicated by multi -

system organ failures. Head Ultrasound shows cerebral edema. MRI was consistent with cerebr al infarcts.

11. Based on these records, Dr. Willis opined that:

[T]here was an apparent obstetrical event that

resulted in oxygen deprivation to the baby during

delivery and continuing into the immediate post -

delivery period. This oxygen deprivation resul ted in

brain injury.

Dr. Willis, however, was " unable to comment on the severity of the brain

injury. "

12. Dr. Duchowny, on the other hand, did offer an opinion as to the extent

of Landen ' s injury. Dr. Duchowny reviewed Landen ' s medical records, as well

as conducted an independent medical examination ( " IME " ) of Landen on

September 9, 2019. Dr. Duchowny observed, within a reasonable degree of

medical probability:

Landon is now 19 months old and has delay

development. He does not communicate verbally and h as recurrent seizures. Landon ' s parents were

told by his Neonatologist that " Landon would never

walk or talk. "

[ 3 ]

* * *

Landon has no words in his lexicon. He instead

points or gestures and " looks at stuff " but cannot

encode his thoughts verbally.

* * *

In SUMMARY, Landon ' s neurological examination

reveals prominent expressive language delay, lateral lower extremity hyperreflexia indicative of a

left hemiparesis and pathological right - hand

preference. Although Landon ' s receptive language

skills are appropriate for age, he is at risk for

significant cognitive impairment.

Dr. Duchowny ultimately opined that based on the IME, which revealed

" likely future substantial mental … impairment, and the medical record

3 Dr. Duchowny ' s examination report identified Landen as " Landon. "

review, I am recommending that Landon be c onsidered for inclusion within

the NICA program. "

13. At a subsequent deposition, Dr. Duchowny expounded on his IME

report. He commented that Landen ' s injury " suggests that his deficits will be

permanent. " Dr. Duchowny further expressed that Landen ' s brai n injury

causes a condition that " clearly destabilizes his gait and makes it difficult for

him to walk or run. " Finally, Dr. Duchowny asserted that, within a

reasonable degree of medical probability, " I think [Landen] has both

substantial mental and physic al impairments, " and that those impairments

are " permanent. "

14. Based on the opinions of Dr. Willis and Dr. Duchowny, NICA

determined that Petitioner ' s claim is compensable under section 766.302(2).

15. A review of the documents in the record reveals no contrary evidence

to dispute the findings and opinions of Dr. Willis and Dr. Duchowny . Their

opinions are credible and persuasive.

16. Based on " all available evidence " in the record, Landen suffered a

brain injury during labor, delivery, or resuscitation in the immediate

postdelivery period that meets the requirements for compensation under

section 766.309(1). Further, both Dr. Lambert and Plant Hospital satisfied

the NICA notice requirements set forth in section 766.716. Accordingly, Landen is eligible fo r an award of NICA benefits under the Plan.

C ONCLUSIONS OF L AW

1 7 . 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 Adm inistrative Law Judge

( " ALJ " ), 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.

1 8 . T he Florida Legislature created the Plan as a means to alleviate the

high co sts of medical malpractice insurance for physicians practicing

obstetrics. Bennett v. St. Vincent ' s Med. Ctr., Inc. , 71 So. 3d 828, 836 (Fla.

2011); and Univ. of Miami v. Ruiz , 164 So. 3d 758, 764 (Fla. 3d DCA 2015).

The Plan ' s purpose is to " provid[e] com pensation, irrespective of fault, for

birth - related neurological injury claims. " § 766.303(1), Fla. Stat.

1 9 . To seek compensation under the Plan, a legal representative on behalf

of an injured infant files a claim with DOAH. §§ 766.302(3) 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 - rela ted neurological injury. " § 766.305(4), Fla. Stat.

20 . If NICA determines that the injury 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 be en assigned.

§ 766.305(7), Fla. Stat.

2 1. When considering whether a claim is compensable under the Plan,

section 766.309(1) charges the ALJ to make the following determinations

" ba sed upon all available evidence":

(a) Whether the injury claimed is a bir th - 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 and that

the infant was the reby 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).

(b) Whether obstetrical services were delivered by a par ticipating 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 supervised by

a participating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital; and

(c) How much compensation, if any, is awardable

pursuant to s. 766.31.

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

notice requireme nts in s. 766.316 are satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factu al determinations.

22 . The term " birth - related neurological injury " is defined in section

766.302(2) as:

injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation

.. . caused by oxygen deprivation or mechanica l

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.

23 . The NICA s tatute is written in the conju nctive 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).

24. I f a claim qualif ies for compensation, section 766.31(1) lists the

expenses and payments the ALJ shall award " [u] pon determining that an

infant has sustained a birth - related neurological injury and that obstetrical

services were delivered by a participating ph ysician at the birth . "

25. Regarding notice of the existence and significance of the NICA Plan to

obstetrical patients, section 766.316 states:

Each hospital with a participating physician on its staff and each participating physician shall

provide noti ce 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 l imitations under the plan. The

hospital or the participating physician may elect to have 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 tha t 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.

26 . The burden of proof in this matter fal ls on NICA and Plant Hospital to

prove that Petitioner ' s claim is covered by the Plan. Petitioner initiated this

matter. However, she expressed that she is not seeking compensation.

Instead, Petitioner argue s that Landen does not fall within the scope of t he

Plan. See Bennett , 71 So. 3d at 846 ; Fla . Health Scis. Ctr., Inc. v. Div. of

Admin. Hearings , 974 So. 2 d 1096, 1099 (Fla. 2d DCA 2007); and Balino v.

Dep ' t of Health & Rehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)

( " The general rule is, that as in court proceedings, the burden of proof, apart

from statute, is on the party asserting the affirmative of an issue before an

administrative tribunal. " ).

2 7 . The preponderance of the evidence standard is applicable to this

matter. See § 120.57(1)(j), Fla . Stat.

2 8 . Turning to the injury in this case, the competent substantial evidence

establishes that Landen suffered a " birth - related neurological injury " as

defined in section 766.302(2). Dr. Willis , following his review of the medical

records, concluded t hat Landen experience d oxygen deprivation during his

birth, which resulted in brain injury. Dr. Willis was not able to assess the

severity of Landen ' s brain injury. However, Dr. Duchowny persuasively

testified that Landen sustained substantial mental and p hysical

impairment s , which are permanent. Dr. Willis 's and Dr. Duchowny ' s opinions

are credited. Accordingly, based on the evidence in the record, the

undersigned determines that Landen suffered a " birth - related neurological

injury . "

29. In addition to de termining the extent of the injury, when raised " by

the claimant or other party, " section 766.309(1)(d) gives the ALJ exclusive

jurisdiction to make " factual determinations regarding the notice

requirements in s. 766.316, " and whether these conditions are s atisfied. In

furtherance of this statutory charge, the undersigned determines that Plant

Hospital, by providing Petitioner the Receipt on January 21, 2018, prior to Landen ' s birth the next day, complied with the terms of the NICA notice

requirements set f orth in section 766.316.

30. Furthermore, Dr. Lambert also satisfied section 766.316. Dr. Lambert

did not provide Petitioner notice of her participation in the Plan. However,

section 766.316 states that, " [n]otice need not be given to a patient … when

not ice is not practicable. " Based on the facts in the record, notice from

Dr. Lambert to Petitioner was not practicable prior to Landen ' s bir th. The

imminent timing of Lande n ' s delivery , combined with the fact that Dr.

Lambert was the backup on - call physician who first examined Petitioner

approximately two hours before La n den's birth , did not afford Dr. Lambert a

reasonable opportunity to discuss the NICA Plan with Petitioner.

Consequently, Dr. Lambert was not required to personally give Petitioner

notice of t he rights and limitations under the NICA Plan in accordance with

section 766.316.

3 1. In sum, the evidence in the record establishes that Petitioner ' s claim

meet s the statutory requirements for compensability under the Plan. Landen

suffered a " birth - relate d neurological injury " during the course of the labor,

delivery, or resuscitation in the immediate postdelivery period as described in

section 766.302(2). The evidence further shows that the obstetrical services provided at Landen ' s birth were delivered by a " participating physician " as

defined in section 766.302(7). Finally, the notice requirement s of section

766.316 were met. A ccordingly, Landen is eligible for an award of NICA

benefits under section 766.31.

D ISPOSITION

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

ORDERED:

1. Petitioner ' s Petition for compensation under the NICA Plan is

APPROVED.

2. NICA shall make immediate payment of all expenses previously

incurred, and shall make payment for future expenses as incurred pur suant

to section 766.31(1)(a).

3. Whitnie Padron , as the parent and natural gu ardian of Landen , is

entitled to an award pursuant to section 766.31(1)(b)1. The parties are

accorded 45 days from the date of this Final Order to resolve, subject to

approval by the Administrative Law Judge, the amount and manner in which

the award should be paid. If not resolved within such period, the parties will so advise the Administrative Law Judge, and a hearing will be scheduled to resolve such issue.

4. Petitioner is ent itled to an award of reasonable expenses incurred in

connection with the filing of the claim, including reasonable attorney ' s fees,

pursuant to section 766.31(1)(c). The parties are accorded 45 days from the

date of this Order to resolve, subject to approv al by the Administrative Law

Judge, the amount of such award. If not resolved within such period, the parties will so advise the Administrative Law Judge, and a hearing will be

scheduled to resolve such issue.

5. Pursuant to section 766.312, the Division o f Administrative Hearings

retains jurisdiction over this matter to address the amount of an award pursuant to section 766.31, as well as to resolve any disputes regarding the

parties ' compliance with the terms of this Final Order.

D ONE A ND O RDERED this 13th day of October , 2020 , in Tallahassee, Leon

County, Florida.

J. B RUCE C ULPEPPER

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 13th day of October , 2020 .

C OPIES F URNISHED :

(via certified mail)

Whitnie Padron

2860 Vernon Terrace

Largo, Florida 33770

(Certified No. 7019 2280 0001 7689 4538)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0001 7689 4545 )

Mindy McLaughlin, Esquire

Bur ton, Beytin & McLaughlin, P.A.

Suite 2900

201 North Franklin Street

Tampa, Florida 33602

(eServed)

(Certified No. 7019 2280 0001 7689 4552 )

Jennifer Nicole Edwards, Esquire

Bush, Graziano, Rice & Platter, P.A.

Suite 1400

100 South Ashley Drive

Tampa, Flor ida 33602

(eServed)

(Certified No. 7019 2280 0001 7689 4569)

H. Hamilton Rice, III, Esquire

Bush, Graziano, Rice & Platter, P.A.

Suite 1400

100 South Ashley Drive

Tampa, Florida 33602 (Certified No. 7019 2280 0001 7689 4576)

Gabrielle Osborne, Esquire

Beytin, McLaughlin, McLaughlin, O ' Hara,

Kinman & Bocchino, P.A.

1706 East Eleventh Avenue

Tampa, Florida 33605

(eServed)

(Certified No. 7019 2280 0000 5623 6410)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florid a 32803

(eServed)

(Certified No. 7019 2280 0000 5623 6458)

Elizabeth A. Myers, Esquire

Smith Bigman Brock, P.A.

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7019 2280 0000 5623 6465)

Carissa Brumby, Esquire

Beytin, McLa ughlin, Mclaughlin, O ' Hara,

Bocchino & Bolin, P.A.

1706 East Eleventh Avenue

Tampa, Florida 33606

(eServed)

(Certified No. 7019 2280 0000 6523 6472)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7019 2280 0000 5623 6489)

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0000 5623 6496)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

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 Fl orida 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).