19-005428N Brandi L. Jennings And Evan M. Mabe, On Behalf Of And As Parents And Natural Guardians Of Killian Mabe, A Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 23, 2020.

Summary: The infant sustained a ?birth-related neurological injury.? However, obstetrical services were not delivered by a ?participating physician? as defined in section 766.302. Therefore, Petitioners? claim does not meet the requirements for eligibility for com

b. Kathryn Hegland Leenhouts, M.D., provided obstetric al services at

Killian ’ s birth at St. Joseph ’ s .

c. Dr. Leenhouts was not a “ participa ting physician ” under the Florida

Birth - Related Neurological Injury Compensation Plan (the “ Plan ” ) at the

time she provided obstetrical services at Killian ’ s birth . See § 766.302(7),

Fla. Stat.

2. On September 27, 2019, Petitioners, Brandi L. Jennings and Evan M.

Mabe, o n b ehalf of a nd a s p arents a nd n atural g uardians of Killian, filed a n

Involuntary Petition for Benefits Pursuant to Florida Statute Section 766.301

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

( “ DOAH ” ) for a dete rmination of compensability under the NICA Plan.

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 ne urologist, to

review Killian ’ s medical records and condition. NICA sought to determine

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

section 766.302(2) , Florida Statutes . Specifically, NICA requested its medical

consultants o pine whether Killian 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 injur y rendered Killian

permanently and substantially mentally and physically impaired.

4. Dr. Willis reviewed Killian ’ s medical records and noted that :

A non - reassuring FHR pattern (fetal distress)

developed during labor with delivery of a depressed

baby. Apga r scores were 1/1/3. Seizure activity developed shortly after birth. The newborn hospital course was complicated by multi - system organ

failure. MRI on DOL 7 was consistent with [hypoxic

ischemic encephalopathy].

5. Dr. Willis opined, within a reasonabl e degree of medical probability:

[I]t is my opinion that there was an apparent

obstetrical event that resulted in oxygen

deprivation to the brain during labor, delivery and continuing into the immediate post deliver y period.

The Oxygen deprivation resulte d in brain injury.

Dr. Willis concluded, however, that “ I am unable to comment about the

severity of the brain injury. ”

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

Killian ’ s brain injury. Dr. Bella - Espinosa reviewed Killian ’ s m edical records,

as well as conducted an independent medical exam ination of Killian.

Dr. Bella - Espinosa noted that:

Killian is a fifteen - month old boy with a history of

severe hypoxic - ischemic encephalopathy of birth.

He was documented in the NICU to have a cute

electroclinical and electrographic seizures, as well as MRI of the brain obtained on day 7th of life

which were all indicative of acute hypoxic - ischemic

injury. On their examination, it is evident Killian

has substantial neurological sequelae. At 15 - m onth

of age, he is microcephalic, has mild axial hypotonia, and moderate hypertonia in both arms

and legs, which is indicative of mild spastic

quadriparetic cerebral palsy. He continues receiving therapies.

7. Dr. Bella - Espinosa opined, within a reasonabl e degree of medical

probability:

Killian is found to have substantial physical and mental impairment at this time.

In reviewing all the available documents, the evolution of his symptoms, the acute brain MRI changes, his acute neonatal seizures, it is ev ident

that Killian had an acute hypoxic event perinatally.

The injury is felt to be acquired due to oxygen

deprivation of the brain. The injuries are felt to be birth - related.

The prognosis of full recovery is poor. Estimated

life expectancy is expected t o be normal, however,

there is potential of developing epileptic seizures in

the future.

Considering the clinical presentation, I do feel that there is enough evidence to recommend Killian is

included in the NICA program.

8 . A review of the record in the case reveals no contrary evidence opposing

the findings and opinions of Dr. Willis and Dr. Bella - Espinosa.

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

determined that Petitioner ’ s claim is compensable under the Plan . NICA

sub sequently filed the Motion for Partial Summary Final Order asserting

that Killian suffered a “ birth - related neurological injury ” as defined by

section 766.302(2).

A NALYSIS AND R ULING :

10. An administrative law j udge has exclusive jurisdiction over the s ubject

matter of this proceeding. § 766.304, Fla. Stat.

11. The Florida Legislature established the NICA Plan “ for the purpose of

providing compensation, irrespective of fault, for birth - related neurological

injury claims ” relating to births occurring on o r after January 1, 1989.

§ 766.303(1), Fla. Stat.

12. The injured infant, her or his personal representative, parents,

dependents, and next of kin may seek compensation under the Plan by filing

a cla im for compensation with DOAH. §§ 766.302(3), 766.303(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 injur y is a birth - related neurological injury. ” § 766.305(4), Fla.

Stat.

13. 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.

14. S ection 766.309(1) (a) states that the administrative law judge must

make the following determination based upon the available evidence:

Whether the injury claimed is a birth - related

neurological injury.

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 post - delivery period in a hospital, which

renders the infant permanently and substantially

men tally and physically impaired. This definition

shall apply to live births only and shall not include disability or death caused by genetic or congenital

abnormal ity.

1 6. N o evidence has been presented contesting the findings and

conclusions of Dr. Willis and Dr. Bella - Espinosa . Dr. Bella - Espinosa

specifically opined that, “ Killian is found to have substantial physical and

mental impairment at this time . ... Cons idering the clinical presentation, I do

feel that there is enough evidence to recommend Killian is included in the

NICA program. ” Dr. Bella - Espinosa ’ s opinion is credible and persuasive.

17. The undisputed evidence in the record establishes that , as a matt er of

law, Killian suffered a “ birth - related neurological injury ” as defined in section

766.302(2) . Accordingly, NICA ’ s Motion for Partial Summary Final Order is

G

RANTED .

C ASE P OSTURE :

18. In addition to section 766.309(1)(a), before compensation is award able

under the NICA Plan, the administrative law judge must determine the

following pursuant to section 766.309(1)(b):

Whether obstetrical services were delivered by a

participating physician in the course of labor,

delivery, or resuscitation in the immedi ate

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.

19. The issue in s ection 766.309(1)(b) remains in dispute, as well as its

ramifications on Petitioners ’ rights and remedies with respect to Killian ’ s

birth - related neurological injury. Petitioners also raise the issue of the

Intervenor ’ s compliance with the notice requireme nt set forth in section

766.316.

D

ONE A ND O RDERED this 4th day of June , 2020 , in Tallahassee, Leon

County, Florida.

J. B RUCE C ULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1 230 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 4th day of June , 2020.

C OPIES F URNISHED :

(via certified mail)

Kenn ey Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

Certified Mail No. 7019 1640 0000 2306 4061

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

Certified Mail No. 7019 1640 0000 2306 4078

Hughes Hamilton Rice, Esquire

Bush, Graziano Rice & Platter, P.A.

Suite 1400

100 South Ashley Drive

Tampa, Florida 33602

(eServed)

Certi fied Mail No. 7019 1640 0000 2306 4085

Tana D. Storey, Esquire Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Certified Mail No. 7019 1640 0000 2306 4092

Henry Valenzuela, Esquire

Valenzuela Law Firm P.A.

Su ite 2350

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Certified Mail No. 7019 1640 0000 2306 4108

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

Cert ified Mail No. 7019 1640 0000 2306 4115

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. 7019 1640 0000 2306 4122

N OTICE OF R I GHT 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 commenced by filing the original notice of

administrative appeal with the agency clerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribe d 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).