20-000296N Jordyn Davis And Cody Dunlap, On Behalf Of And As Parents And Natural Guardians Of Emberlyn Dunlap, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 30, 2020.

Summary: Parties agreed that child did not suffer a birth-related neurological injury because she did not suffer permanent and substantial mental and physical impairment.

P RELIM INARY S TATEMENT

On January 10, 2020, Petitioners Jordyn Davis and Cody Dunlap, on

behalf of and as parents and natural guardians of Emberlyn, a minor, filed a

Petition for Benefits with the Florida Division of A dministrative Hearings

(“DOAH”). Petitioners filed the Petition under protest to establish that

Emberlyn did not suffer a compensable “birth - related neurological injury,”

that timely and appropriate NICA notice was not provided, and that,

accordingly, Emberlyn is ineligible for NICA benefits.

The Pe tition named Samir Mohammad Shakfeh, M.D., as the obstetrician

who delivered Emberlyn on January 19, 2019, and HCA Health Services of

Florida, Inc., d/b/a Oak Hill Hospital (“Hospital”), as the h os pital where

Emberlyn was born. DOAH sent copies of the Peti tion via Certified U.S. Mail

to NICA , Dr. Shakfeh, and the Hospital on January 29 , 20 20 .

On February 11, 2020, Dr. Shakfeh moved to intervene in this proceeding

and amended that motion on February 13, 2020. The undersigned granted

Dr. Shakfeh’s amended mo tion on February 14, 2020. On February 24, 2020,

the Hospital moved to intervene in this proceeding and amended its motion on February 26, 2020. The undersigned granted the Hospital’s amended motion on February 27, 2020.

After receiving two extensions of time, NICA filed its Response to the

Petition for Benefits o n July 16, 2020 . The Response asserted that the claim

was not compensable because, although Emberlyn suffered a brain injury caused by an oxygen deprivation event during labor, delivery, and the i mmediate post - delivery period, it did not cause permanent and substantial

physical and mental impairment.

On July 31, 2020, the undersigned held a pre - hearing conference, at which

all parties agreed that Emberlyn did not suffer a compensable birth - relate d

neurological injury and that the case should be resolved by summary final

order. On August 19, 2020, NICA filed its unopposed Motion for Summary

Final Order (“Motion”). On September 8, 2020, NICA filed supporting

affidavits and reports of two medical exp erts, Donald C. Willis, M.D., an

obstetrician, and Luis Bello - Espinosa, M.D., a pediatric neurologist.

F INDINGS OF F ACT

1. Petitioners are the parents and legal guardians of Emberlyn .

2. On January 19, 2019, Ms. Davis gave birth to Emberlyn , a single

ges tation of 38 weeks, at the Hospital . Emberlyn was delivered by

spontaneous vaginal birth and weighed 2,530 grams .

3. Samir Mohammad Shakfeh, M.D. , provided obstetric al services and

delivered Emberlyn.

4. The undisputed evidence in the record consists of af fidavits and reports

of t wo physicians — Dr. Donald Willis, a board - certified obstetrician, and

Dr. Luis Bello - Espinosa, a board - certified pediatric neurologist who

conducted an independent medical examination (“IME”) of Emberlyn.

5 . Dr. Willis reviewed the medical records and summarized his opinions

about Emberlyn’s delivery and the attendant complications in a report, dated

February 23, 2020 .

6. According to Dr. Willis, Ms. Davis’s pregnancy was uncomplicated until

just before her delivery when an ultrasoun d suggested fetal growth delay. At

that point, Ms. Davis was admitted to the Hospital for induction of labor.

7. The labor was complicated by recurrent episodes of variable fetal heart

rate decelerations with the development of rebound tachycardia prior t o

delivery and a maternal fever of 102.3 degrees. Emberlyn’s low birth weight

was consistent with fetal growth delay or small - for - gestational age.

8. Emberlyn was depressed at birth, limp, and without respiratory effort.

The Hospital administered bag and m ask ventilation for about 30 seconds,

after which Emberlyn began s pontaneous respiratory effort. Her APGAR

scores were four at one minute, five at five minutes, and eight at ten minutes.

9 . About 30 minutes after birth, Emberlyn showed decreased perfusion

and tone with grunting. She began suffering seizures that day and her

arterial blood gas showed metabolic acidosis. On day four, an MRI showed

restricted diffusion consistent with a hypoxic brain injury.

10. Based on the medical records, Dr. Willis opined to a degree of medical

probability that an obstetrical event resulting in oxygen deprivation to the

brain occurred during labor, delivery, and continuing into the immediate

post - delivery period . Dr. Willis further opined that the oxygen deprivation

event caused brain injury , though he could not comment on the severity .

11. Dr. Bello - Espinosa reviewed the medical records, conducted an IME on

Emberlyn, and summarized his opinions in a report , dated July 10, 2020 , as

to whether Emberlyn suffers from permanent and substantial mental and

physical impairment caused by an oxygen deprivation event .

1 2 . After being diagnosed with s mall - for - gestational age, perinatal

depression, re s piratory distress, and metabolic acidosis , Emberlyn was

transferred to Johns Hopkins C hildren’s Hospital . On day one, she suffered

episodes of apneas and developed hyponatremia, hypocalcemia, and

hypomagnesemia. On day two, Emberlyn e xhibited le ft - sided rhythmic

jerking of her arm and leg with simultaneous twitching of her left face , which

lasted about five minutes. Dr. Bello - Espinosa confirmed that the MRI taken

on day four showed restricted diffusion in the brain most likely secondary to ischemic injury .

1 3 . Thereafter, Emberlyn remained stable until her discharge on

January 30, 2019. A de velopmental evaluation p e r formed the day after her

discharge found that Emberlyn was at high risk for developmental delay due

to hypoxic ischemic encephalopathy and seizures. Since her discharge, she

has not suffered any seizure activity and has not been o n anti - seizure

medication since she was seven months old.

14. On February 6, 2019, a follow - up MRI found that the previous areas of

restricted diffusion were no longer visualized . Though subtle changes in right

frontal and l eft temporal occipital regions e xisted, the diffusion changes

noted in the first MRI spared the basal ganglia, posterior limbs of the

internal capsule, and the cerebellum.

15. Dr. Bello - Espinosa conducted an IME on July 10, 2020. Emberlyn was

small for her age , but she appeared well - deve loped and well - nourished . She

was alert, tracked, had very good attention, and was able to follow simple

directions. Her neurological , motor, and sensory examination s w ere normal.

16. Based on the medical records and his IME, Dr. Bello - Espinosa opined

to a degree of medical probability that Emberlyn does not suffer from

permanent and substantial mental or physical impairment.

C ONCLUSIONS OF L AW

17 . DOAH has jurisdiction over the parties and exclusive jurisdiction over

the subject matter of this case. § 76 6.304, Fla. Stat .

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

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

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

19 . An injured infan t, his or her 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 da ys from

the date that a complete claim is served to file a response and to submit

relevant written information as to whether the injury is a birth - related

neurological injury. § 766.305(4), Fla. Stat.

20 . If NICA determines that the infant suffered a compe nsable birth -

related neurological injury, it may award compensation to the claimants, as

approved by the assigned administrative law judge (“ALJ”) . § 766.305(7), Fla.

Stat. But, if NICA disputes the claim, as it does here, the dispute must be

resolved by t he ALJ in accordance with chapter 120 , Florida Statues .

§§ 766.304, 766.309, and 766.31, Fla. Stat.

21 . In determining compensability, the ALJ must make the f ollowing

determinations based up on the available evidence:

(a) Whether the injury claimed is a bir th - related

neurological injury . …

(b) Whether obstetrical services were delivered by a

participating physician in the course of labor,

delivery, or resuscitation in the immediate post

delivery period in a hospital; or by a certified nurse midwife in a t eaching hospital supervised by a

participating physician in the course of labor,

delivery, or resuscitation in the immediate post

delivery period in a hospital .

(c) How much compensation, if any, is awardable

pursuant to s. 766.31.

(d) Whether, if raise d by the claimant or other

party, the factual determinations regarding the

notice requirements in s. 766.316 are satisfied. The

administrative law judge has the exclusive jurisdiction to make these factual determinations .

§ 766.309(1), Fla. Stat.

22. The term “ birth - related neurological injury ” is defined as follows:

[I] njury 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 gram s 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 mentally and physically im paired.

This definition shall apply to live births only and

shall not include disability or death caused by

genetic or congenital abnormality.

§ 766.302(2), Fla. Stat. Thus , a “birth - related neurological injury” has four

components: “ (1) an injury to the brain or spinal cord; (2) which is caused by

oxygen deprivation or mechanical injury; (3) during labor, delivery, or

resuscitation in the immediate postdelivery period; and (4) which renders the

infant permane ntly and substantially impaired . ” Bennett v. S t. Vincent’s Med.

Ctr., Inc. , 71 So. 3d 828, 837 (Fla. 2011).

23. Petitioners have the burden to establish by a preponderance of the

evidence “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.”

§ 766.309(1)(a), Fla. Stat.; see also § 120.57(1)(j), Fla. Stat. (providing that

findings of fact, except in penal and licensure disciplinary proceedings or as

provided by statute, “shall be based upon a preponderance of the evidence”);

Balino v. Dep’t of H RS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977) (holding

generally that “the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.”).

24. If Petitioners meet their burden, section 766.309(1) provides that there

is a rebuttable presumption that the injury is a birth - related neurological

injury. Conversely, if Petitioners do not meet their burden, the undersigned is

required to issue an order dismissing the petition. Id.

25 . Based on the Findings of Fact above, the undisputed evidence

establishes that, although Emberlyn sustained a brain injury caused by

oxygen deprivation during labor, del ivery, and the immediate post - delivery

period, th e brain injury did not render her permanently and substantially

mentally and physically impaired. Thus, Emberlyn did not suffer a “ birth -

related neurological injury .” § 766.302(2) , Fla. Stat.

2 6 . Accordingl y, based on the Findings of Fact above and the undisputed

evidence, Emberlyn is not eligible for benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law herein, Petitioner s ’

claim is not compensable under the Plan, NICA’s Motion for Summary Final

Order is granted, and the Petit ion is dismissed with prejudice.

Done And Ordered this 30 th day of October , 2020 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

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 October , 2020 .

C OPIES F URNISHED :

(via certified mail)

Christopher J. Bilecki, Esquire

Paul Knopf Bigger

840 South Denning Drive , Suite 200

Winter Park, Florida 32789

(eServed)

(Certified No. 7020 1290 0001 6309 9942)

David A. Paul, Esquire

Paul Kno pf Bigger

840 South Denning Drive , Suite 200

Winter Park, Florida 32789

(Certified No. 7020 1290 0001 6309 9959)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tall ahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0000 5623 6618)

Iva M. Valtcheva, Esquire

La Cava & Jacobson, P.A.

501 East Kennedy Boulevard , Suite 1250

Tampa, Florida 33602

(eServed)

(Certified No. 7019 2280 0000 5623 6625)

Richard Knell Bowers, Esquire

Banker Lopez Gassler P.A.

501 East Kennedy Boulevard , Suite 1700

Tampa, Florida 33602

(eServed)

(Certified No. 7019 2280 0000 5623 6632)

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256

(eServed)

(Certified No. 7019 2280 0000 5623 6649)

Tracy M. Falkowitz, Esquire

Banker Lopez Gassler, P.A.

501 East Kennedy Boulevard , Suite 1700

Tampa, Florida 33602

(eServed)

(Certified No. 7020 1290 0001 6309 9218)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7020 1290 0001 6309 9225)

Shevaun L. Harris , Acting Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified No. 7020 1290 0001 6309 9232)

Oak Hill Hospital

Attention: Risk Management

1 1375 Cortez Boulevard

Brooksville, Florida 34613

(Certified No. 7020 1290 0001 6309 9 249 )

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 pr oceedings 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 filing fees prescribed by la w, 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).