19-006339N Ashley Bragg And Kevin Nguyen, On Behalf Of And As Parents And Natural Guardians Of Lukas Nguyen, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, May 20, 2020.

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

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A SHLEY B RAGG A ND K EVIN N GUYEN , O N

B EHALF OF A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF L UKAS N GUYEN ,

A M INOR ,

Petitioners ,

vs. Case No. 19 - 6339N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came on for consideration upon the Unopposed Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on May 7, 2020.

S TATEMENT OF T HE C ASE

On November 21, 2019, Petitioners, Ashley Bragg and Kevin Nguyen, on

behalf of and as parents and natural friends of Lukas Nguyen (Lukas), a

m inor, filed a Petition for Benefits Pursuant to Florida Statute Section

766.301 et seq. (Petition) with the Division of Administrative Hearings

(DOAH) for a determination of compensability under the Florida Birth -

Related Neurological Injury Compensation Pl an (Plan).

The Petition identified Charles Shane Medlock, M.D., as the physician

who provided obstetric services at the birth of Lukas on December 23, 2017,

at Sacred Heart Hospital, located in Escambia County, Florida.

DOAH served Charles Shane Medloc k, M.D., and Sacred Heart Hospital

with copies of the Petition on December 3, 2019. DOAH served NICA with a

copy of the Petition on December 3, 2019.

On March 12, 2020, NICA filed a Response to Petition for Benefits,

asserting that Lukas did not sustain a Ñbirth - related neurological injuryÒ as

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

that a hearing be scheduled to determine compensability. On March 27, 2020,

the parties filed a Joint Status Report requesting additional t ime to respond

to a March 13, 2020, Order from the undersigned that required the parties to

confer and advise concerning the need for a hearing, if any, and if a hearing is

needed, when the parties will be prepared to proceed to a hearing, the issues

in di spute, the estimate of time required for hearing, and the choice of venue.

On March 20, 2020, the undersigned entered an Order Granting Extension of

Time that provided the parties a 60 - day extension to respond to the

March 13, 2020, Order.

On May 7, 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

NICAÔs experts.

F INDINGS OF F ACT

1. Lukas was born on December 23, 2017, at Sacred Heart Hospital,

located in Escambia County, Florida.

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

medical records for Lukas. In a medical report dated January 14, 20 2 0,

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

In summary, labor was induced at 37 weeks due to

a prior fetal demise. The newborn was depressed at

birth with Apgar scores of 1/6/7. Bag and mask

ventilation was required for 2 - minutes. The initial

blood gas after birth had a base excess of - 16. The

baby was anemic at birth. Evaluation identified

adrenal hemorrhage as the etiology for the anemia.

MRI on DOL 9 showed a small subarachnoid

hemorrhage.

The mother was being treated with Lovenox, an

injectable anti coagulant. Lovenox does not cross

the placenta and would not be factor in the fetal

adrenal or subarachnoid hemorrhage. The adrenal

and subarachnoid hemorrhage were more likely

related to birth related hypoxia.

There was an apparent obstetrical event that

resulted in oxygen deprivation to the brain. Based

on the cord blood gas pH >7.1, it is unlikely any

significant oxygen deprivation occurred prior to

birth. However, some degree of oxygen deprivation

likely occurred in the immediate post - delivery

period, based on the base excess of - 16 on the initial

blood gas in the nursery and both adrenal and

subarachnoid hemorrhages identified by

ultrasound. I am unable to comment on the severity

of the brain injury.

3. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert

specializing in maternal - fetal medicine and pediatric neurology, to examine

Lukas and to review his medical records. Dr. Sheth examined Lukas on

February 18, 2020. In a medical report dated March 8, 2020, Dr. Sheth

summarized his examination of Lukas and opined in pertinent part as

follows:

In SUMMARY, LucasÔs [sic.] neurological

examination reveals evidence of behavioral

problems, and stereotypic behaviors with

expressive language delay concerning for autism

spectrum disorder, and generalize d axial hypotonia

and mild appendicular hypertonia evidenced only

in gait, with apparent preserved visual acuity, and

a history of epilepsy that started at age 6 months

and generalized tonic clonic seizures with a history

of 4 fever related seizures.

Much of LucasÔs [sic.] neonatal course was detailed

in the history of present illness. He was born at 37

weeks gestation. Delivery was vaginal with an

epidural. The NICU team was called emergently to

labor and delivery patient appeared depressed and

unresponsi ve pale. Positive pressure ventilation for

about 2 minutes was undertaken. Spontaneous

breaths were established at this time. Heart rate

improved within 30 seconds of positive pressure

ventilation. By 40 minutes of age the patient was

active normal tone ha d a good gag good suck

responsive pupils and normal Moro. Serial neuro

exams for the next 24 hours of life were normal. He

was not felt to meet criteria for brain cooling. MRI

revealed a slight extra - parenchymal hemorrhage in

the subarachnoid space without significant intra -

parenchymal involvement. While he has seizures

they did not develop till he was approximately six

months old and he was not noted to have neonatal

seizures. His head appears to be growing

appropriately with regards to head size. He has n ot

had a genetic evaluation or developmental

pediatrics evaluation. As such Lucas [sic.]would not

appear to meet NICA specified criteria for

compensation under the NICA program.

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

o pinions filed that are contrary to the opinion of Dr. Willis that it is unlikely

that any significant oxygen deprivation occurred prior to the birth of Lukas.

Dr. WillisÔ s opinion is credited. There are no expert opinions filed that are

contrary to Dr. She thÔs opinion that Lukas should not be considered for

inclusion in the NICA program. Dr. ShethÔs opinion is credited.

5. The Unopposed Motion for Summary Final Order states that

ÑRespondent has conferred with PetitionersÔ attorney and is authorized to

repre sent that Petitioner is in agreement and not opposed to this motion.Ò

C ONCLUSIONS OF L AW

6. DOAH has jurisdiction over the parties to and the subject matter of

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

7. The Legislature established the Plan Ñfor the purpose of providing

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

claimsÒ relating to births occurring on or after January 1, 1989. £ 766.303(1),

Fla. Stat.

8. The injured infant, her or his personal representative, paren ts,

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 Ñ45 days from

the date of service of a complete c laim . . . 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.

9. If NICA determines that the injury alleged i n 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 assigned. § 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.

10. In discharg ing this responsibility, the administrative law judge must

make the following determination based upon the available evidence:

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

neurological injury. If the claimant has

demonstrated, to the satisfaction of t he

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 thereby 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. 766.303(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 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.

§ 766.309(1), Fla. St at. An award may be sustained only if the administrative

law judge concludes that the Ñinfant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth.Ò £ 766.31(1), Fla. Stat.

11 . Section 766.302(2) defines the term Ñbirth - related neurological injuryÒ

as follows:

ÑBirth - related neurological injuryÒ 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 m ultiple 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 postdelivery period in a hospital, which

renders the inf ant permanently and substantially

mentally and physically impaired.

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

obstetrical event which resulted in loss of oxygen to the babyÔs 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. AssÔn v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

13. The evidence, which is not refuted, established that Lukas did not

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

benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and the Conclusions of Law, it is

O RDERED that:

The Petition filed by Ashley Bragg and Kevin Nguyen, on behalf of and as

parents and natural guardians of Lukas Nguyen, is dismissed with prejudice.

D ONE A ND O RDERED this 20th day of May , 2 020 , in Tallahassee, Leon

County, Florida.

S

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

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May , 2020 .

C OPIES F URNISHED :

(via certified mail)

Grant A. Kuvin, Esquire

Morgan & Morgan

Suite 1100

76 South Laura Stre et

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7019 1640 0000 2306 3590)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eSe rved)

(Certified Mail No. 7019 1640 0000 2306 3606)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7019 1640 0000 2306 3613)

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 3620)

Sacred Heart Hospital

Attention: Risk Management

5151 North 9th Av enue

Pensacola, Florida 32504

(Certified Mail No. 7019 1640 0000 2306 3637)

Charles Shane Medlock, M.D.

Suite 207

5153 North 9th Avenue

Pensacola, Florida 32504

(Certified Mail No. 7019 1640 0000 2306 3644)

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 commence d 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 t he

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).