20-000501N Npaug And Tshaj Xiong, On Behalf Of And As Parents And Natural Guardians Of Paj Xiong, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, May 14, 2021.

Summary: Final Order entered concluding that Petitoners' claim is compensable under the Plan, jurisdiction reserved to determine award.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

N PAUG A ND T SHAJ X IONG , O N B EHALF OF

A ND A S P ARENTS A ND N ATURAL

G UARDIANS OF P AJ X IONG , A M INOR ,

Petitioners ,

vs. Case No. 20 - 0501N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respon dent

and

D OROTHY J. O DOM , M.D., O RLANDO

H EALTH P HYSICIAN A SSOCIATES , LLC A ND

O RLANDO H EALTH , I NC ., D / B / A W INNIE

P ALMER H OSPITAL ,

Intervenors .

/

F INAL O R DER

Pursuant to notice, a final hearing was conducted by Zoom Conference on

March 2, 2021, before Administrative Law Judge (ALJ) Todd P. Resavage of

the Division of Administrative Hearings (DOAH).

A PPEARANCES

For Petitioners: Gregorio A. Francis, Esq uire

Osborne & Francis, PLLC

Suite 205

805 South Kirkman Road

Orlando, Florida 32811 - 2200

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenors: Jeremy T. Palma , Esquire

Rissman, Barrett, Hurt, Donahue & McLain, PA

Suite 1400

201 East Pine Street

Orlando, Florida 32801

S TATEMENT O F T HE I SSUES

For the purpose of determining compensability, the issue is whether the

injury claimed is a birth - related neurological i njury, as defined by

section 766.302(2) , Florida Statues . The specific issue that remains is

whether the brain injury caused by oxygen deprivation or mechanical injury,

which rendered Paj Xiong (Paj) permanently and substantially mentally and

physically i mpaired, occurred in the course of labor, delivery, or resuscitation

in the immediate post - delivery period.

P RELIMINARY S TATEMENT

On January 27, 2020, Petitioners filed a ÑPetition for BenefitsÒ (Petition),

for a determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). Specifically, Petitioners

requested a determination of non - compensability.

The Petition named Dorothy J. Odom, M.D., as the physician who

provided obstetric services at the birth of Paj on March 13, 2018, at Orlando

Health, Inc. , d/b/a Winnie Palmer Hospital (Winnie Palmer), in Orlando,

Florida.

On February 3, 2020, DOAH mailed a copy of the Petition to Respondent,

Dr. Odom, and Winnie Palmer by certified mail. Respondent was served wit h

the Petition on February 4, 2020.

On February 21, 2020, a Petition for Leave to Intervene was filed by

Dr. Odom, Orlando Health Physician Associates, LLC , and Winnie Palmer.

The requested intervention was granted by Order dated March 2, 2020.

After granting one extension of time, on April 6, 2020, Respondent filed its

Response to Petition. Respondent suggested that, based on its review of the

claim, Paj had sustained a birth - related neurological injury, as defined in

section 766.302(2), and notified Petitioners that Respondent was prepared to

provide medical benefits as specified in section 766.31(1)(a) and willing to

offer the full $100,000.00, as provided in section 766.31(1)(b).

After conducting a telephonic status conference, the final hearing w as

initially scheduled for June 18, 2020. On June 3, 2020, Respondent filed a

Motion for Summary Final Order (RespondentÔs Motion) seeking a

determination that PetitionersÔ claim was compensable under the Plan.

Thereafter, the final hearing and the respons e to RespondentÔs Motion were

continued on several occasions to allow the parties to conduct reasonable

discovery.

On January 22, 2021, RespondentÔs Motion was denied and the final

hearing was scheduled for March 2, 2021. The final hearing proceeded, as

scheduled, via Zoom Conference. In lieu of presenting live testimony, the

parties stipulated and mutually agreed to the presentation of their respective

cases solely by the admission of exhibits and the presentation of a closing

argument.

Upon the conclu sion of the final hearing, the parties stipulated to the

submission of proposed final orders within 15 days of the filing of the

transcript and to the issuance of the undersignedÔs Final Order on or before

30 days from the filing of the transcript. The T ra nscript was electronically

filed on March 16, 2021. The identity of the witnesses and exhibits , and

rulings regarding each , are as set forth in the T ranscript. The parties timely

filed proposed final orders, which have been considered in the preparation of

this Final Order.

F INDINGS O F F ACT

Pursuant to the partiesÔ stipulations at the final hearing, the Findings of

Fact set forth in paragraphs 1 through 5 are undisputed.

1. Paj was born on March 13, 2018, at Winnie Palmer, a Ñhospital,Ò as

defined by sec tion 766.302, and was alive at birth.

2. Paj was a single gestation with a birthweight in excess of 2,500 grams.

3. Obstetrical services were delivered by Dr. Odom, a Neurological Injury

Compensation Association (NICA) Ñparticipating physician,Ò as define d in

section s 766.302 and 766.309 , in the course of labor, delivery, or resuscitation

in the immediate post - delivery period.

4. Paj sustained a brain injury caused by oxygen deprivation or

mechanical injury and was thereby rendered permanently and substan tially

mentally and physically impaired.

5. The notice requirements of section 766.316 were satisfied by the

Intervenors.

6. Dr. Odom is a practicing obstetrician/gynecologist (OB/GYN) and at all

times relevant was employed with Orlando Health Physician A ssociates,

LLC.

7. Petitioner Npaug Xiong (Mrs. Xiong) first sought prenatal care and

treatment with Dr. Odom on September 12, 2017, at which time she was 13

weeks and two days pregnant. Mrs. XiongÔs relevant medical history reveals

that she had been preg nant on seven prior occasions, resulting in five births.

The prior births had been vaginal deliveries without complication. Her

expected delivery due date with this pregnancy was March 24, 2018.

8. An ultrasound conducted on February 20, 2018, revealed tha t the fetus

was in a breach position, thus Ñpresenting in a buttocks firstÒ position. On

March 8, 2018, Dr. Odom determined that the fetus remained in a breech

position. Dr. Odom advised Mrs. Xiong of the external cephalic version (ECV)

procedure, which is used to turn a fetus from a breech position into a head -

down position in anticipation of a vaginal delivery.

9. Dr. Odom credibly testified that the plan was to schedule Mrs. Xiong for

an attempt at ECV and, if successful, her membranes would be ruptured and

she would proceed with a total induction of labor. If unsuccessful, Dr. Odom

would proceed with a Cesarean section delivery (C - section). In either event,

the plan was to deliver the baby following the attempt at ECV.

10. On March 11, 2018, Mrs. Xiong returned to Winnie Palmer for a labor

check. At this time, she was 38 weeks pregnant. Autumn Elms, M.D., an

OB/GYN, examined Mrs. Xiong. Dr. Elms testified that Mrs. XiongÔs chief

complaint was that of contractions, which she documented as a two out of 10

on the pain scale.

11. Dr. Elms performed a vaginal exam, which revealed that Mrs. XiongÔs

cervix was four centimeters (cm) dilated and 50 percent effaced. She also

documented that the baby was Ñminus 3 , Ò meaning that the baby had not

descended down into the pelvic canal. During this visit, Mrs. Xiong was

connected to an external fetal monitor for approximately one hour. While

monitored, Mrs. Xiong only had one contraction.

12. Dr. Elms Ôs impression and overall assessment was that of Ñfalse labor,Ò

which she defined as a patientÔs complaint of perceived labor without

documented findings to support labor.

13. Mrs. Xiong returned to Winnie Palmer on March 13, 2018, at

2:09 p.m. , to proceed with the attempt at ECV, and subsequent delivery. As

reported on t he History and Physical completed by Dr. Odom, Mrs. Xiong

Ñreports regular painful contractions since earlier today.Ò Mrs. Xiong also

reported no loss of fluid and Ñonly a small amount of bloody show.Ò 1

14. A vaginal exam was performed by Dr. Odom, which revealed that her

cervix remained at four cm dilated; however, she was now 70 percent effaced

and there was the presence of bloody show.

15. Mrs. Xiong was placed on an external fetal monitor. The fetal

monitoring strips, as interpreted by Dr. Robinson, establish that from

3:09 p.m., to the beginning of the first ECV attempt, Mrs. Xiong experienced

15 separate contractions.

16. During this time period, at approximately 3:40 p.m. , a medication,

Terbutaline, was administered. The purposed of this medicati on is to inhibit

contractions and relax the uterus in preparation for the ECV procedure.

Mrs. Xiong also received an epidural to prevent her from experiencing severe

pain associated with the ECV.

17. Dr. Odom began the first ECV attempt at approximately 4 :26 p.m.

During the first attempt, the fetal heart rate dropped to 80 beats per minute

(bpm) for approximately one to two minutes. After external pressure was

released, the babyÔs heart rate rebounded to 120 bpm. Dr. Odom credibly

opined that a normal feta l heart rate in a third trimester infant is between

110 and 160 bpm.

18. A second ECV attempt was made at approximately 4:50 p.m.

Dr. Odom testified that the attempted procedure would have taken roughly

10 minutes. Again, the procedure was unsuccessful an d the fetal heart

monitor was placed back on Mrs. Xiong.

1 Christopher Robinson, M.D., IntervenorÔs OB/GYN and maternal - fetal expert, explained

that blood y show is the Ñnatural progress of cervical changeÒ and that Ñw hen the cervix is

changing and thinning out and undergoing stretch, there are small blood vessels that are

disrupted in the stroma of the cervix, leading to that bleeding and that presentation.Ò

19. The strips from the fetal heart rate monitor provide that the infantÔs

heart rate ranged from about 100 to 110 bpm from approximately 5:00 p.m.

until 5:21 p.m. Dr. Odom credibly testified that d uring this period, the heart

monitoring strips were consistent with potential compromise and/or hypoxia,

and, therefore, an emergency C - section was necessary.

20. At 5:21 p.m, the heart rate monitor was removed to transition

Mrs. Xiong to the operating r oom for a C - section. The C - section delivery was

completed by 5:31 p.m.

21. At birth, Paj was profoundly depressed. His immediate heart rate was

less than 30. His Apgar scores were 1 at one minute, 4 at five minutes, and 4

at 10 minutes of life. 2 At one mi nute of life, Paj had a heart rate less than

100 , no respiratory rate, flaccid muscle tone, no response to reflex, and was

blue and pale. At 10 minutes of life, Paj remained severely depressed.

Positive pressure ventilation by intubation was required for r espiratory

distress with an increase in heart rate to 150 bpm.

22. Cord blood gas pH obtained was 7.29 with a base excess of - 5. The

initial arterial blood gas pH was 7.07 with a base excess of - 21.

23. PajÔs newborn hospital course was complicated by mu lti - system organ

failures, including respiratory distress, seizures, acute renal failure, adrenal

hemorrhage, thrombocytopenia, feeding difficulty, elevated liver functions,

hearing loss, hypoxic ischemic encephalopathy (HIE) , and brain hemorrhage.

24. An MRI obtained on PajÔs fifth day of life had findings suggestive of

HIE with right cerebellum hemorrhage.

25. As noted above, the parties stipulate that Paj sustained a brain injury

caused by oxygen deprivation or mechanical injury and was thereby rendere d

permanently and substantially mentally and physically impaired.

2 An Apgar score is a numerical expression of the condition of the newborn and reflects the

sum total points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex

irritability, and color. See Be nn ett v. St. VincentÔs Med. Ctr., Inc. , 71 So. 3d 828, 834 n. 2 (Fla.

2011) citing Nagy v. Fla. B irth - Related Neuro. Injury Comp. AssÔn, 813 So. 2d 155, 156 n. 1

(Fla. 4th DCA 2002). Each factor is scored 0, 1, or 2; the maximum total score is 10.

26. There is no record evidence to support a finding that the injury to PajÔs

brain occurred prior to the ECV attempts on March 13, 2018. 3 It appears

undisputed that the original injury oc curred during or immediately following

the attempts at ECV, but prior to the C - section delivery. The parties

presented expert witness testimony concerning, inter alia , whether

Mrs. Xiong was in ÑlaborÒ during the time of the original injury and whether

th e injury continued to manifest during delivery, and into the immediate

post - delivery period. The expert medical testimony is addressed below.

2 7 . Donald Willis, M.D., a board - certified obstetrician specializing in

maternal - fetal medicine, was retained by Respondent to review the pertinent

medical records of M r s. Xiong and Paj and opine as to whether Paj sustained

an injury to his brain or spinal cord caused by oxygen deprivation or

mechanical injury that occurred during the course of labor, delivery, or

re suscitation in the immediate post - delivery period in a hospital . Dr. WillisÔs

ultimate opinions are that Mrs. Xiong was in labor when she presented to

Winnie Palmer on March 13, 2018, and that the initial injury occurred during

or after the second ECV atte mpt and continued through delivery and into the

immediate post - delivery period.

2 8 . Dr. Willis defines the term ÑlaborÒ as uterine contractions that result

in a change in the cervix. The change can be either a change in dilation or

effacement, or both. In support of his opinion that Mrs. Xiong was in labor,

Dr. Willis testified that her cervix had increased in effacement from 50

percent on March 11, 2018, to 70 percent on March 13, 2018. Additionally, as

compared to her prior visit to Winnie Palmer on Marc h 11, she was now

experiencing painful uterine contractions since earlier in the day. Moreover,

Dr. Willis opined that the bloody show, while not indicative of labor in and of

itself, is a complementary indication of labor.

3 The record evidence demonstrates that Mrs. Xiong was not in labor on March 11, 2018.

2 9 . Dr. Willis also opined tha t the initial injury occurred after the second

ECV attempt as the baby sustained fetal bradycardia, which he defined as a

Ñbaseline heart rate that drops for ten minutes or more.Ò He further opined

that the baby was bradycardic, and consequently suffering oxygen

deprivation to the brain, from approximately 5:00 p.m. through delivery.

30 . Dr. Willis testified that the injury continued through delivery and into

the immediate post - delivery period; however, he could not ascribe a

percentage or certainty to the level of Ñ insult Ò or ÑinjuryÒ :

I mean, brain injury, I believe, did occur, but how

much occurred then versus during delivery and the

postdelivery period, thereÔs no way to tell with any

certainty how much occurred during one particular

time period in tha t frame.

3 1 . In support of his opinion that the injury to the brain was continuing

post - delivery, Dr. Willis noted that PajÔs heart rate at birth was less than 30;

his Apgar score was 1; he w as profoundly depressed; and the blood gas

results obtained appr oximately 30 - 35 minutes after birth (and after

resuscitative efforts) were consistent with ongoing oxygen deprivation and

resulting or continuing brain injury.

3 2 . Respondent also retained Luis E. Bello - Espinosa, M.D., a pediatric

neurologist, to review t he medical records of M rs. Xiong and Paj , and to

conduct an Independent Medical Examination (IME) of Paj. Dr. Bello -

Espinosa opines that Paj suffered from an acute severe hypoxic ischemic

injury, and , as a result , suffers from a permanent and substantial m ental and

physical impairment.

3 3 . Dr. Bello - Espinosa opines that certain findings or descriptions of Paj

at birth such as poor Apgar scores, that he was apneic, had a low heart rate,

was flaccid, and cyanotic are consistent with a hypoxic ischemic brain injury

at the time of birth. He does not offer, however, an opinion as to whether

Mrs. Xiong was in labor at the time of the injury. Additionally, while

Dr. Bello - Espinosa testified that this type of injury is Ñusually a continuum of

injury,Ò he could no t offer an opinion on the exact timing:

Q. Is there any way for you to determine within a

reasonable degree of medical certainty as to the

exact timing of when these injuries occurred with

respect to whether it was before delivery, during

delivery or dur ing the immediate postdelivery

period?

A. No.

3 4 . As noted above, Intervenors retained and presented the deposition

testimony of Dr. Robinson. Dr. RobinsonÔs ultimate opinion is that Mrs. Xiong

was in labor at the time when she presented to Winnie Palm er on March 13,

2018.

3 5 . Dr. Robinson defines the term ÑlaborÒ as uterine contractions that

result in cervical change, and the change can be dilation and/or effacement.

He opines that Mrs. Xiong was in labor for several reasons. First,

Dr. Robinson note d that Mrs. Xiong had reported regular and painful

contractions, which were supported by the fetal monitoring strips. His review

of the strips revealed that she had at least 15 contractions from 3:09 to 4:27

p.m. Second, her cervical effacement was documen ted to be 70 percent, thus a

20 percent progression since she was examined on March 11, 2018. According

to Dr. Robinson, there is a Ñbig differenceÒ between 50 and 70 percent effaced.

Finally, she also had some bloody show over this time course when examin ed.

3 6 . Dr. Robinson opined that, on March 13, 2018, Mrs. Xiong was in

Ñtransitional labor.Ò He expanded on this opinion as follows:

So , I believe that, you know, what was happening

on that date is she was transitioning from latent to

active phase labor, so she basically had achieved a

regular uterine contraction pattern with a breech

presentation, and she was no w progressing toward

active phase labor. Now, was she in active phase

labor, no, but she was in labor, labor being defined

as uterine contraction s with cervical change, thatÔs

dilation and/or effacement. In this case, it was

specifically effacement.

3 7 . Dr. Robinson testified that the original injury to the fetus occurred

after the second ECV attempt and prior to the C - section delivery. During thi s

time period , he opine that there was persistent bradycardia, lack of

variability in heart rate, and suggested hypoxia. With respect to whether the

injury concluded prior to delivery, Dr. Robinson testified that, Ñ[i]t would not

necessarily have been comp letely during that time, it would have probably

continued on beyond that time after delivery, based upon looking at what the

Apgars are like .Ò He further testified, however, that with respect to post -

delivery, he would defer to a pediatric neurologist over all as to the

completeness and timing of injury.

3 8 . The undersigned finds that Drs. Willis, Bello - Espinosa, and Robinson

possess significant education, training, and expertise , and are well - qualified

and credentialed to render the above - noted opinions. Th e undersigned finds

their opinions as set forth above to be credible.

3 9 . Petitioners retained and presented the deposition testimony of Sarah

Mulkey, M.D., who is board certified in neurology with special qualifications

in child neurology. Dr. Mulkey pro vided no opinions concerning whether

Mrs. Xiong was in labor at the time of the original injury. Her ultimate

opinion is that the brain injury was complete by the time of the C - section

delivery, and that there was no ongoing further neurologic injury ther eafter.

40 . Dr. Mulkey testified that an MRI obtained five days after birth is

consistent with an acute injury that occurred over the span of 10 to 30

minutes. She conceded, however, that Ñwe canÔt tell exactly which 30 minute

window back in history.Ò Wit h respect to the low Apgar scores, Dr. Mulkey

opined that Ñ[t]he baby has already had an injury, and what weÔre seeing are

the neurological effects of that in these ten minutes as weÔre scoring these

Apgar s . But itÔs not Ï itÔs not an ongoing new injury.Ò

4 1 . Dr. Mulkey was asked when, after delivery, Paj was receiving

sufficient oxygen to the brain so that the brain was not suffering oxygen

deprivation. In response, Dr. Mulkey testified that Ñ. . . when the babyÔs

respiratory status was taken care of with being ventilated and the heart rate

was good, this baby was then perfusing the brain pretty quickly.Ò

4 2 . The undersigned finds that Dr. Mulkey possesses significant

education, training, and expertise , and is well - qualified and credentialed to

render the above - noted opinions. Her opinion that Paj sustained an acute

brain injury is credited. The undersigned, however, finds her opinion with

respect to the injury being complete at the time of delivery to be less

persuasive and entitled to less weight.

4 3 . P etitioners also retained and presented the deposition testimony of

Berto Lopez, M.D. Dr. Lopez is an OB/GYN, however, he is not currently

board certified and does not have admitting privileges at any hospital. At the

final hearing , Dr. LopezÔs license to p ractice medicine had been revoked by

the Department of Health, Board of Medicine. Dr. LopezÔs ultimate opinion is

that Paj suffered a brain injury caused by oxygen deprivation and was

rendered permanently and substantially mentally and physically impaired;

however, said injury did not occur in the course of labor, delivery , or

resuscitation in the immediate post - delivery period.

4 4 . Dr. Lopez testified that Mrs. Xiong was not in labor on March 13,

2018, when she presented to Winnie Palmer because she did n ot have a

complaint of increasing pain, she did not demonstrate a cervical change that

could not be easily explain ed by interoperative bias (two different examiners

coming up with slightly different results), and she did not have progressive

dilation or ef facement of a significant nature. Additionally, he opined that

labor was not indicated as her contractions were not every two to three

minutes.

4 4 . While Dr. Lopez conceded that there had been a change in the

effacement of Mrs. XiongÔs cervix from 50 to 7 0 percent, however, he

discounted this change and attributed the same to the subjective scoring of

two separate physicians.

4 6 . Dr. Lopez also acknowledged the documentation that Mrs. Xiong had

bloody show. He opined that it is common in dilated women who have had

multiple children to free up cervical mucus with or without blood, and the

bloody show may have been due to the prior digital vaginal examination.

4 7 . In support of his opinion that Mrs. Xiong was not in labor at the time

of injury, he also test ified that at no time on March 13, 2018, was it ever

documented that she was in labor, which he would have expected given that

Mrs. Xiong was being assessed for the purpose of performing an ECV.

Additionally, he testified that there is no indication that t he Terbutaline or

epidural were administered to abate labor.

4 8 . Dr. Lopez agreed that there are several stages of labor. He defined

Ñactive labor Ò as cervical change and more than five centimeters of cervical

dilation. ÑLatent phaseÒ labor was defined by Dr. Lopez as early labor

wherein the patient might be having contractions, the cervix may be dilated

(typically less than 6 cm), and she is progressing in effacement and dilation.

When asked whether early labor is considered within the definition of labor ,

he testified that Ñ[i]tÔs one definition, yes.Ò He also agreed that painful

contractions over several hours, change in cervical effacement, persistent

dilation, and bloody show, would be consistent with a woman being in labor,

whether itÔs active or earl y labor.

4 9 . Dr. Lopez further opined that the initial injury did not commence on

March 13, 2018, until sometime after the second ECV attempt; however, he

deferred to a pediatric neurologist as to when the hypoxic injury would have

concluded.

50 . Dr. Lop ez possesses significant education, training, and experience to

render the above - noted opinions. Dr. LopezÔs opinion concerning the timing of

the initial injury is credited as well as his opinion that there was no

documentation of labor on March 13, 2018. His opinion concerning whether

Mrs. Xiong was in labor on March 13, 2018, is found less persuasive and

entitled to less weight.

5 1 . Intervenor, Dr. Odom, also testified concerning whether Mrs. Xiong

was in labor. She acknowledged that, on March 13, 2018, n either she nor any

other healthcare provider involved in Mrs. XiongÔs care and treatment

documented that she was in labor. She also confirmed that Mrs. XiongÔs

membranes were intact at all times prior to the C - section delivery.

5 2 . Dr. Odom testified that Mrs. Xiong was not in Ñactive laborÒ that day

because her cervix was not dilated more than four centimeters, however, she

opined that Mrs. Xiong was in Ñearly laborÒ as she was experiencing

contractions and there had been a cervical change in effacement f rom her

prior examination on March 11, 2018. Dr. Odom declined to offer an opinion

as to when the injury occurred.

5 3 . In support of the position that Mrs. Xiong was not in labor at the time

of the original injury, Petitioners contend that labor is a cont raindication to

the performance of an ECV procedure, and, therefore, Dr. Odom would not

have performed the ECV procedure if Mrs. Xiong was, in fact, in labor. Dr.

Lopez testified that active labor is a contraindication in performing an ECV

and that he beli eves the delivery nurse probably would not have permitted

the procedure if she felt Mrs. Xiong was in labor.

5 4 . Dr. Willis confirmed that an ECV should not be attempted if the

mother is in active labor because the contractions and the location of the

fet us in the pelvis would make it difficult, if not impossible, to turn the baby

externally. Dr. Robinson opined that labor is not a contraindication to an

ECV and that it is done routinely. He acknowledged, however, that there are

complicating factors that l abor presents for performance of an ECV.

Specifically, he testified that if the uterus is contracting regularly and will

not relax, the fetus cannot be turned, and there is a potential for rupturing

the membranes.

5 5 . The undersigned finds that, on March 13, 2018, Paj sustained an

injury to his brain caused by oxygen deprivation occurring in the course of

labor . The undersigned further finds that the injury was not complete at the

time of the C - section delivery and continued into resuscitation in the

immed iate post - delivery period .

C ONCLUSIONS O F L AW

5 6 . DOAH has jurisdiction over the parties to and the subjec t matter of

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

5 7 . The Plan was established by the Legislature Ñfor the purpose of

providing compensa tion, irrespective of fault, for birth - related neurological

injury claimsÒ relating to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

5 8 . Section 766.301(2) provides that it is Ñthe intent of the Legislature to

provide compensation , on a no - fault basis, for a limited class of catastrophic

injuries that result in unusually high costs for custodial care and

rehabilitation.Ò

5 9 . The injured infant, her or his personal representative, parents,

dependents, and next of kin may seek compe nsation 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, has Ñ45 days

from the date of service of a complete claim . . . in which to file a response to

th e 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.

60 . If Respondent determines that the injury alleged is a claim that is a

compensable birt h - related neurological injury, it may award compensation to

the claimant, provided that the award is approved by the ALJ to whom the

claim has been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

Respondent disputes the claims, as here, the dispu te must be resolved by the

assigned ALJ in accordance with the provisions of chapter 120, Florida

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

6 1 . In its present posture, the undersigned i s required to make the

following threshold determination based upon the available evidence:

(a) Whether the injury claimed is a birt h - related

neurological injury. If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury ca used 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 s upervised by

a participating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital.

* * *

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

party, the factual determinations regarding the

notice re quirements in s. 766.316 are satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations.

§ 766.309(1), Fla. Stat. An award may be sustained only if the ALJ concludes

that the Ñinfant has sustained a birth - r elated neurological injury. . . .Ò

§ 766.31(1), Fla. Stat.

6 2 . The term Ñbirth - related neurological injuryÒ is defined in

section 766.302(2) as follows:

ÑBirth - related neurological injuryÒ means injury to

the brain or spinal cord of a live infant w eighing 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 postdelivery period in a hospital, which

renders the infant permanently and substantially

mentally and physically impaired.

6 3 . The term ÑlaborÒ is neither defined by statue nor rule. In Florida

Birth - Related Neurological Injury Compens ation Association v. Florida

Division of Administration Hearings , 686 So. 2d 1348 (Fla. 1997) ( hereinafter

Bernie ) , the court explained that Ñ[w]here, as here, the legislature has not

defined the words used in a phrase, the language should usually be given its

plain and ordinary meaning.Ò Bernie , at 1354, citing Southeaster n Fisheries

AssÔn, Inc. v. DepÔ t Nat . Res . , 453 So. 2d 1351 (Fla. 1984). ÑNevertheless,

consideration must be accorded not only to the literal and usual meaning of

the words, but also to t heir meaning and effect on the objectives and purposes

of the statueÔs enactment.Ò Id at 1354 .

6 4 . Drs. Willis and Robinson defined ÑlaborÒ as uterine contractions that

result in a change to the cervix in dilation or effacement. The undersigned

accepts th is definition and concludes the definition encompasses the usual

meaning of the word and is consistent with the objectives and purposes of

section 766.301 et. seq .

6 5 . Each of the parties to this proceeding presented one or more experts to

support their r espective position s as to whether Mrs. Xiong was in labor at

the time of the original injury. All of the experts presented were well -

qualified, and possessed extensive and significant training and experience in

their respective discipline s or area s of expe rtise. Having thoroughly reviewed

and weighed the considered expert opinions and evidence, the undersigned

concludes that the better evidence supports the conclusion that Mrs. Xiong

was in labor at the time Paj sustained an injury to his brain caused by

ox ygen deprivation. Specifically, the undersigned concludes that Mrs. Xiong

was not in active labor, but rather, early labor at the time of the original

injury.

6 6 . Having concluded that Mrs. Xiong was in labor at the time of the

original injury, it is unne cessary to determine whether the injury continued

through delivery and the immediate post - delivery period. For the sake of

completeness, however, the undersigned concludes that the better evidence

establishes that, while incapable of precise measurement, t he injury to PajÔs

brain was ongoing through delivery and into resuscitation in the immediate

post - delivery period.

6 7 . The undersigned concludes that sufficient evidence was presented, or

otherwise stipulated or admitted by the parties to establish that Paj was born

a live infant on March 13, 2018, at Orlando Health, Inc. d/b/a Winnie Palmer

Hospital, a Ñhospital,Ò as defined by section 766.302; and that Paj was a

single gestation, weighing over 2,500 grams at birth.

6 8 . Sufficient evidence was presented, or otherwise stipulated to or

admitted by the parties , to establish that PajÔs injury rendered him

permanently and substantially mentally and physically impaired.

6 9 . It is further concluded that sufficient evidence was presented, or

otherwise stipulated to or admitted by the parties, to establish that

obstetrical services were delivery by a participating physician, Dr. Odom, in

the course of labor, delivery, or resuscitation in the immediate post - delivery

period in a hospital.

70 . It is also concluded, based on the evidence presented, or otherwise

stipulated to or admitted by the parties , that the notice requirements of

section 766.319 were satisfied by the Intervenors.

7 1 . In summary, the undersigned concludes that Respondent and

Intervenors met their burden of establishing that Paj sustained a birth -

related neurological injury, as that term is defined in section 766.302(2) , and

the claim is compensable under the Plan.

C ONCLUSION

1. Paj s ustained a Ñbirth - related neurological injury,Ò as defined in

s ection 766.302(2) .

2. Obstetrical services were delivered by a participating physician,

Dr. Odom, in the course of labor, delivery, or resuscitation in the immediate

post - delivery period in a hospital, Winnie Palmer .

3. Intervenor s satisfied the notice requirements of section 766.316.

4. The claim is found and determined to be compensable.

5 . Petitioners shall , within thirty (30) days of this Order , provide written

notice of whether Petitioners desire a hearing to determine the issue of an

award pursuant to section 766.31.

D ONE A ND O RDERED this 15th day of April, 2021 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with t he Clerk of the

Division of Administrative Hearings

this 15th day of April, 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

Consumer Services Unit Agency for Health Care Administration

Department of Health 2727 Mahan Drive, Mail Stop 1

4052 Bald Cypress Way, Bin C - 75 Tallahassee, Florida 32308

Tallahassee, Florida 3 2399 - 3275 (Certifie d No. 7020 2450 0000 1058 7186 )

(Certified No. 7020 2450 0000 1058 7155 )

David W. Black, Esquire

Jeremy T. Palma, Esquire Frank, Weinberg & Black, P.L.

Rissman, Barrett, Hurt, Donahue & 7805 Southwest 6th Court

McLain, PA Plantation, Florida 33324

Suite 1400 (Certified No. 7020 2450 0000 1058 7193 )

201 East Pine Street

Orlando, Florida 32801 Kenney Shipley, Executive Director

(Certified No. 7020 2450 0000 1058 7162 ) Florida Birth - Related Neurological

Inj ury Compensation Association

Gregorio A. Francis, Esquire Suite 1

Osborne & Francis, PLLC 2360 Christopher Place

Suite 205 Tallahassee, Florida 32308

805 South Kirkman Road (Certified No. 7020 2450 0000 1058 7209 )

Orlando, Florida 32811 - 2200

(Certified No. 7020 2450 0000 1058 7179 )

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law judge shall be by appeal to

the Dist rict 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, and 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 - Related Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).