19-005445N Brittany Quinley And Dustin Brown, Individually And As Natural Parents Of Brave Ryland Brown vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 24, 2020.

Summary: NICA's unopposed motion for summary final order granted where it was undisputed that the baby did not suffer a compensable injury because his weight fell under the statutory threshold.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITTANY QUINLEY and DUSTIN

BROWN, individually and as

natural parents of BRAVE RYLAND

BROWN ,

Petitioner s ,

vs. Case No. 19 - 5445N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent .

/

SUMMARY FINAL ORDER

This cause came before the undersigned on a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (“NICA”) , on

J anuary 7, 2020, to which Petitioners, Brittany Quinley and Dustin

Brown, individually and as natural parents of Brave Ryland Brown

(“ Brave ”) , a minor, filed no response in opposition.

STATEMENT OF THE ISSUE

The issue to be determined is whether Brave suffe red a

“birth - related neurological injury,” as defined in section

766.302, Florida Statutes (2017).

PRELIMINARY STATEMENT

On October 4, 2019, Petitioners filed a Petition for

Determination of Compensability Pursuant to Florida Statute

Section 766.301, et seq. (“Petition”), with the Florida Division

of Administrative Hearings (“DOAH”) , seeking a determination that

Brave was not eligible for benefits under the Florida Birth -

Related Neurological Injury Compensation Plan (“Plan”).

The Petition named Joseph Gre enhaw, M.D., as the obstetrician

who delivered Brave on September 27, 2017, and Baptist Medical

Center South (“H ospital”) , as the hospital where Brave was born.

DOAH served NICA, Dr. Greenhaw, and the Hospital with cop ies of

the Petition on October 21, 201 9 , as reflected in the Certified

Return Receipts filed on October 21, 2019 .

NICA received one extension of time to respond to the

Petition. On January 7, 2020, NICA filed a Motion for Entry of

Protective Order Regarding Confidential Documents Related to

Petitioner’s Medical Records. The undersigned granted that motion

by separate O rder on January 9, 2020.

On January 7, 2020, NICA also filed a Motion for Summary

Final Order (“Motion”) requesting that the undersigned dismiss the

Petition because the cla im is not compensable , as Brave ’s birth

weight fell below the statutory threshold of 2,500 grams.

Petitioners’ response to the Motion was due by January 14,

2020. Fla. Admin. Code R. 28 - 106.204. C ounsel for Petitioners

informed the undersigned’s office that they would not be filing a

response . By failing to do so, Petitioners have conceded to the

allegations made and the relief sought therein.

T he available evidence in this cause is comprised of two

confidential medical records, including the Hospi tal’s admission

summary and an obstetrical ultrasound report, which Petitioners

served on NICA pursuant to section 766.305 . They are both

attached to NICA’s M otion .

All references to the Florida Statutes are to the 2017

version unless otherwise specified. The relevant provisions of

chapter 766 have not been amended in any way relevant to this

proceeding since 2017.

FINDINGS OF FACT

1. On September 27, 2017, the Hospital admitted Brittany

Quinley and she gave birth to a baby boy named Brave .

2 . The pre - delivery ultrasound, performed on September 26,

2017, estimated the fetal weight to be 2,539 grams. However,

Brave weighed 2 ,486 grams at the time of his birth the next day .

CONCLUSIONS OF LAW

3 . DOAH has jurisdiction over the parties and exclusive

juri sdiction over the subject matter of these proceedings pursuant

to sections 120.569, 120.57(1), and 766.304, Florida Statutes.

4 . The Florida Legislature established the Plan “for the

purpose of providing compensation, irrespective of fault, for

birth - rela ted neurological injury claims” relating to births

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

NICA administers the Plan. § 766.302(1) , Fla. Stat.

5 . The injured infant, his or her personal representative,

parents, dependents, and n ext 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 then

has “45 days from the date of service of a complete claim . . . in

which to file a response to t he 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.

6 . If NICA determines that the alleged injury i s 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

assigned. § 766.305(7), Fla. Stat. If NICA disputes the claim,

as it does in this case, the dispute must be resolved by the

assigned administrative law judge in accordance with chapter 120.

§§ 766.304, 766.30, and 766.31, Fla. Stat.

7 . In determining whether a claim is compensable, the

undersigned must first determine, based on all available evidence ,

if “ the injury claimed is a birth - related neurological injury. ”

§ 766.309(1)(a), Fla. Stat.

8. 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 co rd 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, deliv ery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired. This definition shall

apply to live births only and shall not

include disability or death ca used by genetic

or congenital abnormality.

9 . If the administrative law judge determines that the

infant meets the statutory weight threshold , sustained a brain or

spinal cord injury caused by oxygen deprivation or mechanical

injury, and is rendered perm anently and substantially mentally and

physically impaired as a result of the injury, a rebuttable

presumption arises that the injury is a birth - related neurological

injury. § 766.309(1) , Fla. Stat.

10. Here, however, t he undisputed available evidence

es tablishes that Brave did not weigh at least 2,500 grams at

birth , as required by section 766.302(2) . This issue is

dispositive with respect to compensability.

11. Accordingly , based on the undisputed available evidence,

Brave did not sustain a birth - re lated neurological injury and is

not eligible for benefits under the Plan .

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of

Law, NICA’s unopposed Motion for Summary Final Order is granted

because Petitioners’ claim is not compensabl e. Petitioners’

Petition is dismissed with prejudice.

DONE AND ORDERED this 24th day of January , 2020 , in

Tallahassee, Leon County, Florida.

S

ANDREW D. MANKO

Administrative Law Judge

Division of Administrative Hearing s

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 24th day of January, 2020 .

COPIES FURNISHED:

(via certified mail)

Ronald S. Gilbert, Esquire

Colling Gilbert Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified No. 7018 2290 0000 1309 8912)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7018 2290 0000 1309 8929)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7018 2290 0000 1309 8936)

Mary Mayhew , Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7018 2290 0000 1309 89 50 )

Joseph Greehaw, M.D

Suite 311

14546 Saint Augustine Road

Jacksonville, Florida 39958

(Certified No. 7018 290 0000 1309 8967)

Baptist Medical Center South

Attention: Risk Management

14550 Old Saint Augustine Road

Jacksonville, Florida 32258

(Certified No. 70182290 0000 1309 9032)

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 Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, a nd 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 - Relate d Neurological

Injury Comp. Ass’ n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).