19-004601N Jaten Percoco And Sarah Percoco, As Parents And Natural Guardians Of Micah Anthony Percoco, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 13, 2020.

Summary: The child did not suffer a ?birth-related neurological injury? as defined in section 766.302(2). (The child did not sustain a substantial mental and physical impairment.) Therefore the child is not eligible for benefits under the NICA Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ATEN P ERCOCO A ND S ARAH P ERCOCO ,

A S P ARENTS A ND N ATURAL G UARDIANS

OF M ICAH A NTHONY P ERCOCO , A M INOR ,

Petitioners ,

vs. Case No. 19 - 4601N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

Allyson Victoria Jones, M.D.; Faith

Carlin, M.D.; Women's Care Florida;

And Galencare, Inc., D/B/A Brandon

Regional Hospital,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came for consideration on a Motion for Partial Summary Final

Order filed by Respondent, Florida Birth - Related Neurological Injury

Compensation Association (ÑNICAÒ), on February 25, 2020.

S TATEMENT OF T HE C ASE

On August 23, 2019, Jaten Percoco and Sarah Percoco, as parents and

natural guardians of Micah Anthony Percoco (ÑMicahÒ), a minor, filed a

Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. ( the

ÑPetitionÒ) with the Division of Admi nistrative Hearings (ÑDOAHÒ) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan ( the ÑPlanÒ).

The Petition identified Allyson Victoria Jones, M.D., as the physician who

provided obstetric al servic es at MicahÔs birth on May 18, 2019, at Galencare,

Inc. d/b/a Brandon Regional Hospital (ÑBrandon HospitalÒ) in Brandon,

Florida.

DOAH served Dr. Jones with a copy of the Petition on September 11,

2019, and served Brandon Hospital th at same date. DOAH al so served NICA

with a copy of the Petition on September 11, 2019.

Dr. Jones, as well as Faith Carlin, M.D., and WomenÔs Care Florida,

moved to intervene in this matter on October 1, 2019, which was granted.

Brandon Hospital also moved to intervene on O ctober 10, 2019, which was

also granted.

On January 28, 2020, NICA filed its response to the Petition, taking the

position that Petitioner s Ô claim is n ot compensable under the Plan. NICA

requested DOAH schedule a hearing to determine compensability.

On February 25, 2020 , NICA filed a Motion for Partial Summary Final

Order requesting the Administrative Law Judge enter a summary final order

finding the claim not compensable under the NICA statute because Micah did

not suffer a Ñbirth - related neurologica l injuryÒ as defined in section

766.302(2).

F INDINGS OF F ACT

1. Micah was born on May 18, 2019, at Brandon Hospital located in

Brandon , Florida.

2. The Petition alleges that Victoria Jones, M.D., was the delivering

physician for Micah Ôs birth. No evidence was presented to DOAH regarding

whether Dr. Jones was a Ñparticipating physicianÒ under the Plan at the time

Micah was born. See § 766.302(7), Fla. Stat.

3. Upon receiving the Petition, NICA retained Donald Willis, M.D., a

board certified obstetrician /gynecologist specializing in maternal - fetal

medicine, as well as Luis E. Bello - Espinosa , M.D., a pediatric neurologist, to

review Micah Ôs medical records and condition . NICA sought to determine

whether Micah suffered a Ñbirth - related neurological injuryÒ as defi ned in

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

whether Micah 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 Micah permanently and substantially

mentally and physically impaired.

4. Dr. Willis reviewed Micah Ôs medical records and noted :

In summary, vaginal delivery wa s complicated by a

sho ulder dystocia with a duration greater than

5 - minutes. The baby was depressed at birth with

Apgar scores of 0/2/3, requiring ches t compressions

and intubation. The newborn hospital course was

complicated by multi - system organ fai lures,

consistent with bir th - related oxygen deprivation.

Hypoxic ischemic brain injury was identified on

head MRI.

There was apparent obstetrical event (should er

dystocia) that resulted in oxygen deprivation to the

brain during delivery and continuing int o the

immediate post - delivery period. The oxygen

deprivation resulted in brain injury.

Dr. Willis concluded, ÑI am unable to comment as to the extent of the brain

injury.Ò

5. Dr. Bella - Espinosa, on the other hand, did comment on the extent of

MicahÔs br ain injury. Dr. Bella - Espinosa reviewed Micah Ôs medical records,

and conducted an independent medical exam ination of Micah on January 24,

2020. Dr. Bella - Espinosa opined, within a reasonable degree of medical

probability:

Micah is an Eight - month boy with a history of

hypoxic isc hemic encephalopathy of birth. He did

have well established immediate postnatal

encephalopathy, but he did not have neonatal

seizures despite MRI changes which were

indicative of hypoxic - ischemic insult[.] His

neurological examinatio n, except for mild residual

right arm decreased tone, was normal, with no

evidence of encephalopathy, myelopathy,

neurogenic or myopathic processes.

Micah is found not to have a substantial physical

and mental impairment at this time.

In review of all the available documents, the mild

decreased tone on the right arm is indicative of

residual changes as a re sult of the shoulder

dystocia. This type of injury is birth related, but he

is expected to recover most of his right arm

function.

The prognosis of full recovery is excellent.

Estimated life expectancy should be normal.

* * *

Considering the clinical presentation and

progression, I feel that there is not enough evidence

to recommend Micah be included in the NICA

program.

6. A review of the file r eveals no contrary evidence to dispute the findings

and opinions of Dr. Willis and Dr. Bella - Espinosa . Their opinions are credible

and persuasive.

7. Based on the statements from Dr. Willis and Dr. Bella - Espinosa, NICA

determined that Petitioner s Ô claim wa s not compensable. NICA subsequently

filed a Motion for Partial Summary Final Order asserting that Micah did not

suffer a Ñbirth - related neurological injuryÒ as defined by section 766.302(2).

As of the date of this Order, Petitioners have not responded to NICAÔs

motion.

C ONCLUSIONS OF L AW

8 . The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding pursuan t to sections 766.301

through 766.316. The undersigned, as an Administrative Law Judge, has

Ñexclus ive jurisdiction to determine whether a claim filed under [NICA] is

compensable.Ò §§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stats.

9. The Florida Legislature established the Plan Ñfor the purpose of

providing compensation, irrespective of fault, fo r birth - related neurological

injury claims.Ò § 766.303(1), Fla. Stat.

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

of an injured i nfant files a claim with DOAH. §§ 766.302( 3) and 766.305(1),

Fla. Stat . NICA, which administers t he Plan, then has Ñ45 days from the date

of service of a complete claimÈ 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.Ò § 766.305(4) , Fla. Stat.

11. 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

who m the claim has been assigned. § 766.305(7), Fla. Stat.

12. In this matter, however, NICA determined that Petitioner s Ô claim is

n ot compensable under the Plan. Therefore, NICA filed the Motion for Partial

Summary Final Order, requesting an order be entered finding the c laim not

compensable.

13 . In reviewing the compensability of a claim, section 766.309(1) directs

the Administrative Law Judge to make the following determinations based

upon the available evidence:

(a) Whether the injury claimed is a birth - related

neurolo gical injury;

(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 supe rvised 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.

14 . The term Ñbirth - related neurologica l injuryÒ 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 mechanical

injury occurring in the course of labor, delivery, or

r esuscitation in the immediate postdelivery period

in a hospital, which renders the infant permanently

and substantially mentally and physically

impaired.

15. Ñ The [NICA] Statute is written in the conjunctive and can only be

interpreted to require permanen t and substantial impairment that has both

physical and mental elements.Ò Fla. Birth - Related Neurological Injury

Comp. AssÔn v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349, 1356 (Fla.

1997).

1 6. In reviewing the injury in this matter, the preponderance of the

evidence does not establish that Micah sustained a Ñbirth - related

neurological injuryÒ as defined in section 766.302(2). Dr. Willis, other than

concluding that Micah did experience a birth - related injury, did not comment

on the extent of any possibl e brain injury . Dr. Bella - Espinosa, on the other

hand, credibly opined that Micah currently only suffers from a mild

decreased tone on his right arm, and is expected to recover m ost of his right

arm function. Dr. Bella - Espinosa further noted that MicahÔs n eurological

examination was normal, with Ñno evidence of encephalopathy, myelopathy,

neurogenic or myopathic processes.Ò Dr. Bella - Espinosa concluded that Micah

has an excellent chance of full recovery from his birt h - related injuries. Based

on these statem ents, the evidence does not support a finding that Micah

suffer s from a ÑsubstantialÒ mental and physical impairment.

17. Therefore, based on the available evidence in the record, the

undersigned determines that Micah has not suffered a Ñbirth - related

neurological injuryÒ and is not eligible for NICA benefits.

D ISPOSITION

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

O RDERED that the Petition is dismissed, with prejudice.

D ONE A ND O RDERED this 13th day of March , 2020 , in Tall ahassee, Leon

County, Florida.

S

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 March , 2020 .

C OPIES F URNISHED :

(via certified mail)

Jaten Percoco

Sarah Percoco

1327 Oak Valley Drive

Seffner, Florida 33584

Certified Ma il No. 7011 3500 0003 3840 6339

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

Certified Mail No. 7011 3500 0003 3840 6346

Mark R. Messerschmidt, Esquire

La Cava & Jacobson, PA

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

Certified Mail No. 7011 3500 0003 3840 6353

Gabrielle Osborne, Esquire

Beytin, McLaughlin, McLaughlin,

O'Hara, Kinman & Bocchino, P.A.

1706 East Eleventh Avenue

Tampa, Florida 33605

(eServed)

Certified Mail No. 7011 3500 0003 3840 6360

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Certified Mail No. 7011 3500 0003 3840 6377

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

Certified Mail N o. 7011 3500 0003 3840 6384

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

40 52 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

Certified Mail No. 7011 3500 0003 3840 6391

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

( eServed)

Certified Mail No. 7011 3500 0003 3840 6407

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 Appellate

Procedure. Such proceedings are co mmenced 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 cler k 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).