19-003664N Kodey Caliri And Rachel Teague, Individually And As Parents And Next Friends Of Adalynn Caliri, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 30, 2020.

Summary: NICA's unopposed motion for summary final order is granted where infant did not sustain a birth-related neurological injury.

DOAH served Gary Easterling, M.D., and Sarasota Memorial Hospital

with copies of the Petition on July 17, 2019. DOAH served NICA with a copy

of the Petition on July 17, 2019 .

On October 14, 2019 , NICA filed a Response to Petition for Benefits,

asserting that Adalynn did not sustain a “ birth - related neurological injury”

as that term is defined in section 766.302(2), Florida Statutes, and requested

that a hearing be scheduled to determine compensability. On October 31,

2019, the undersigned entered an Order requiring the parties to confer and advise as to the need for a hearing, when they would be prepared to proceed

to hearing, the issue(s) still in dispute, their estimate of the time required for

hearing, and their choice of venue. Based on NICA’s December 2, 2019 ,

Status Report, the undersig ned entered a Notice of Hearing by Video

Teleconference, setting a hearing to determine compensability on April 28 and 29, 2020, by video teleconference in Tallahassee and Sarasota, Florida.

On March 4, 2020, NICA filed a Supplemental Status Report, w hich

stated that it had conferred with counsel for Petitioners, and further stated

that Petitioners no longer requested a hearing on compensability. The

Supplemental Status Report further stated that NICA would file a Motion for Summary Final Order for a d etermination of Compensability.

On April 17, 2020, NICA filed an Unopposed Motion for Summary Final

Order, which noted, inter alia , that Petitioners do not oppose the Unopposed

Motion for Summary Final Order and do not intend to rebut the opinions of

NICA ’s experts.

F INDINGS OF F ACT

1 . Adalynn was born on April 24, 2018 , at Sarasota Memorial Hospital,

located in Sarasota County , Florida.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the

medical records for Adalynn . In a medical re port dated September 5, 2019 ,

Dr. Willis summarized his findings and opined in pertinent part as follows:

In summary, labor was complicated by FHR

decelerations requiring Cesarean delivery.

Umbilical artery cord pH was 7.12 with a base

excess of - 7.8, sug gesting a significant oxygen

deprivation did not occur during labor or delivery.

Apgar scores were 3/9. The baby was stabilized in

the delivery room on room air and transferred to

the MBU. The baby apparently remained stable

until about 7 to 12 hours after birth when the baby

was noted to be fussy, poor feeding and with

increased muscle tone. Seizure activity was noted

on the EEG and MRI was consistent with HIE.

There was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical traum a to the brain or spinal cord during labor,

delivery or the immediate post - delivery period that

would have resulted in brain injury. Brain injury did occur as some time after birth, as documented by EEG and MRI. However, medical records do not suggest the brain injury was birth related.

3. NICA retained Michael S . Duchowny , M.D. (Dr. Duchowny) , a Board -

certified ped iatric neurologist, to examine Adalynn and to review her medical

records. Dr. Duchowny examined Adalynn on September 24, 2019 . In a

medical rep ort dated September 27, 2019, Dr. Duchowny summarized his

examination of Adalynn and opined in pertinent part as follows:

In SUMMARY, Adalynn’s neurological examination

reveals global delay. She has four - limb static

hypotonia and dynamic hypertonia with sp asticity,

hyperreflexia, left exotropia, microcephaly, absent

communication, pseudobulbar affect and an in - dwelling gastrostomy. There is a history of seizures

that are presently controlled on two anti - seizure

medication[s].

A review of medical records fu rther reveals that

Adalynn was the product of a term pregnancy and

delivery by urgent caesarian section. Her Apgar

scores were 3 and 9 at 1 and 5 minutes. Venous

umbilical cord blood gases were pH of 7.21 and base

excess of - 7.4. She did not require resus citation

and was stable on room air. Liver function tests

were elevated but there were no other indications

of systemic organ involvement. Seizures

commenced at 12 hours of age and were treated

with phenobarbital and phytoin. Increased lactic

acid was note d.

Adalynn was noted to be hypertonic at birth. MR imaging performed on April 27th (DOL#3) revealed increased signal in the bi - occiptal regions and

cerebral peducles. A subsequent MRI performed on

May 3rd demonstrated increased signal in

sensorimotor cort ex, centrum semiovale, symmetric

globus pallidus, putamen and occipital cortex as

well as the pons and cerebral peduncles. MR

spectroscopy revealed widespread signal increases

in hemispheric grey and white matter.

Based on the imaging findings, microcepha ly,

developmental delay and increased lactate,

metabolic and genetic studies were undertaken and

revealed multiple abnormalities. Although a definitive diagnosis has not yet been obtained, the genetic abnormalities in Adalynn’s mitochondrial genome are the most likely explanation for her

neurological disability, imaging and laboratory values and clinical presentation.

Based on today’s evaluation and medical record

review, I am not recommending that Adalynn be

considered for inclusion in the NICA program.

4. O n February 14, 2020, Dr. Duchow ny provided an addendum to his

prior opinion, following the review of additional medical records provided by

Petitioners, which included the results of genetic testing. Dr. Duchowny

opined that this additional information “further supports the original

recommendation that Adalynn should not be considered for inclusion into

NICA.”

5. A review of the file in this case reveals that there have been no expert

opinions filed that are contrary to the opinion of Dr. W illis that th ere was no

apparent obstetrical event that resulted in loss of oxygen to Adalynn 's brain

during labor, delivery, and the post - delivery period w hich resulted in brain

injury. Dr . Willis’ opinion is credited. There are no expert opinions filed that

are contr ary to Dr. Duchowny’s opinion that Adalynn should not be

considered for inclusion in the NICA program . Dr. Duchow ny’s opinion is

credited.

6. Dr. Willis reaffirmed his opinions in an affidavit , dated March 20, 2020 .

Dr. Duchow ny reaffirmed his opinions in an affidavit dated April 17, 2020.

C ONCLUSIONS OF L AW

7. DOAH has jurisdiction over the parties to and the subjec t matter of

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

8. The Legislature established the Plan “ for the purpose of providing

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

claims ” relating to births occurrin g 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. §§ 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 res ponse 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.

10. 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 assig ned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claim, as it has in the instant case, the dispute

must be resolved by the assigned administrative law judge in accordance

with the provisions of chapter 120, Florida Statutes. §§ 766.304, 766.309,

and 766.31, Fla. Stat.

11. In discharging this responsibility, the ad ministrative law judge must

make the following determination based upon the available evidence:

(a) Whether the injury claimed is a birt h - related

neurological injury. If the claimant has

demonstrated, to the satisfaction of the administrative law judge, th at the infant has

sustained a brain or spinal cord injury caused 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 t he 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 hospit al; 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.

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

law judge concludes that the “ infant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth. ” § 766.31(1), Fla. Stat.

12. Section 766.302(2) defines t h e term “ birth - related neurological injury ”

a s 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 infan t 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 substantial ly

mentally and physically impaired.

13. To be compensable under the NICA Plan, there must have been an

obstetrical event , which resulted in loss of oxygen to the baby’s brain during

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

resulting in a permanent and substantial mental impairment and a

permanent and substantial physical impairment, inasmuch as both are

required to establish compensability . Fla. Birth - Related Neurological Injury

Comp. Ass’n v. Div. of Admin. Hearings , 686 S o. 2d 1349 (Fla. 1997).

14. The evidence, which is not refuted, established that Adalynn did not

suffer a birth - related neurological injury. Therefore, Adalynn is not eligible

for benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and the Co nclusions of Law, it is O RDERED

that:

The Petition filed by Kodey Caliri and Rachel Teague , individually and as

parents and next friends of Adalynn Caliri , is dismissed with prejudice.

D ONE A ND O RDERED this 30 th day of April, 2020 , in Tallahassee, Leon

C ounty, Florida.

R OBERT J. T ELFER III

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 30 th day of April, 2020 .

C OPIES F URNISHED :

(via certified mail)

Allison C. McMillen, Esquire

McMillen Law Firm, P.A.

Suite 105

163 East Morse Boulevard

Winter Park, Florid a 32789

(eServed)

(Certified No. 7019 2280 0001 7689 4606 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 22 80 0001 7689 4613 )

Brooke M. Gaffney, Esquire

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

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7019 2280 0001 7689 4620 )

Elizabeth A. Myers, Esquire

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

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7019 2280 0001 7689 4637 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 323 99 - 3275

(Certified No. 7019 2280 0001 7689 4644 )

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 0001 7689 4651 )

Gary Ea sterling, M.D.

Suite 203

1950 Arlington Street

Sarasota, Florida 34239

(Certified No. 7019 2280 0001 7689 4668 )

Sarasota Memorial Hospital

Attention: Risk Management

1700 South Tamiami Trail

Sarasota, Florida 34239

(Certified No. 7019 2280 0001 7689 468 2 )

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 Florida Rules of App ellate

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 fil ing 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).