20-000818N Tamica Quarrie And Nicoy Latouche, Individually And As Parents And Next Friends Of Rhea Latouche, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 21, 2020.

Summary: Hospital failed to establish that the notice requirements of section 766.316 were satisfied.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T AMICA Q UARRIE A ND N ICOY L ATOUCHE ,

I NDIVIDUALLY A ND A S P ARENTS A ND

N EXT F RIENDS OF R HEA L ATOUCHE , A

M INOR ,

Petitioners ,

vs. Case No. 20 - 0818N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

N ORTH B ROWARD H OSPITAL D ISTRICT

D/B/A B ROWARD H EALTH C ORAL S PRINGS

A/K/A C ORAL S PRINGS M EDI CAL C ENTER ;

A LISON T. C LARKE D E S OUZA , M.D.;

A LISON T. C LARKE D E S OUZA , M.D., LLC;

P EDRO M OSCOSO , M.D.; A ND P EDIATRIX

M EDICAL G ROUP OF F LORIDA , I NC .,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This matter came before the undersigned on RespondentÔs Motion for

Summary Final Order (RespondentÔ s Motion), filed June 17, 2020; and

PetitionersÔ Response, filed July 6, 2020.

S TATEMENT OF T HE C ASE

On February 7, 2020, Petitioners filed an ÑAmended Petition Filed Under

Protest for Determination as to the Applicability of Florida Birth - Related

Neurolo gical Injury Compensation PlanÒ (Amended Petition) at the Division

of Administrative Hearings (DOAH). The Amended Petition named Alison T.

Clarke DeSouza, M.D., as the physician who provided obstetric services at

the birth of Rhea LaTouche (Rhea) on August 18, 2017, at Coral Springs

Medical Center, in Coral Springs, Florida.

The Amended Petition alleges that Dr. DeSouza was a participant in the

Florida Birth - Related Neurological Injury Compensation Association Plan

(the Plan), and provided timely notice to Petitioners of her participation in

the Plan. The Amended Petition further alleges that Coral Springs Medical

Center, a hospital, while also a NICA participant, did not timely provide

notice of its participation in the Plan.

DOAH served Respondent with a copy of the Amended Petition on or

before February 19, 2020. On February 18, 2020, DOAH mailed a copy of the

Amended Petition by certified mail to Dr. DeSouza and Coral Springs

Medical Center.

On March 10, 2020, North Broward Hospital District d/b/a Bro ward

Health Coral Springs a/k/a Coral Springs Medical CenterÔs (BHCS) Petition

for Leave to Intervene was granted; and, on Ma y 11, 2020, Alison T. Clarke

DeS ouza, M.D. and Alison T. Clarke De S ouza, M.D., LLCÔs Motion for Leave

to Intervene was granted.

O n March 10, 2020, Petitioners filed a ÑMotion for Partial Summary

Judgement as to NICA Notice.Ò After an extension of time was granted, on

April 27, 2020, BHCS filed its response to said motion. On May 11, 2020,

PetitionersÔ motion was denied as material f acts remained in dispute

concerning the notice issue.

On June 11, 2020, Pedro Moscoso, M.D. and Pediatrix Medical Group of

Florida, Inc. , filed a Motion for Leave to Intervene. PetitionersÔ response in

opposition was filed June 15, 2020. The motion to int ervene was granted on

June 29, 2020.

On June 17, 2020, RespondentÔs Motion was filed wherein Respondent

contends that Rhea sustained a birth - related neurological injury and

requests the undersigned enter a summary final order concluding that

PetitionersÔ claim is compensable. On July 2, 2020, the undersigned issued an

Order to Show Cause, whereby Petitioners were ordered to show cause in

writing why RespondentÔs Motion should not be granted.

On June 17, 2020, Petitioners filed their response to Responde ntÔs Motion.

Said response provides , in pertinent part , as follows:

Petitioners do not oppose NICAÔs Motion for

Summary Final Order. Petitioners do not dispute

that RHEA LATOUCHE sustained a severe

hypoxic ischemic injury resulting in substantial

mental and physical impairments that are

permanent. Petitioners do not dispute that the

injuries are felt to be birth related.

WHEREFORE, Petitioners do not oppose the entry

of a Summary Final Order determining that the

claim is compensable under the NICA plan a s a

matter of law and reserving a determination of the

applicability of NICA based on the evidentiary

hearing on notice , which is to be set for the last

week of August. PetitionersÔ position is that BHCS

failed to give timely notice.

F INDINGS OF F ACT

1. R hea was born a live infant on August 18, 2017, at BHCS , located in

Coral Springs, Florida.

2. At the time of birth, Rhea weighed at least 2500 grams.

3. BHCS is a Ñhospital,Ò as defined by section 766.302(6), Florida Statutes.

4. Obstetrical services we re delivered by Alison T. Clarke DeSouza, M.D.,

in the course of the subject labor, delivery, or resuscitation in the immediate

post - delivery period in a hospital ; BHCS .

5. At the time of RheaÔs birth, Dr. DeSouza was a Ñparticipating

physician,Ò as defin ed in section 766.302(7).

6. Dr. DeSouza satisfied the notice requirements of section 766.316.

7. Donald Willis, M.D., an obstetrician specializing in maternal - fetal

medicine, was retained by Respondent to review the medical records for Rhea

and her moth er. In his affidavit dated June 16, 2020, Dr. Willis opines to a

reasonable degree of medical probability, as follows:

There was an apparent obstetrical event that

resulted in oxygen deprivation to the brain during

labor, delivery and continuing into the immediate

post - delivery period. The oxygen deprivation

resulted in brain injury.

8. Respondent further retained Luis E. Bello - Espinosa, M.D., a pediatric

neurologist. Dr. Bello - Espinosa was retained to review the available medical

records and conduct an examination of Rhea to determine whether she

suffers from an injury which rendered her permanently and substantially

mentally and physically impaired ; and whether such injury is consistent with

an injury caused by oxygen deprivation or mechanical injury o ccurring during

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

hospital.

9. Dr. Bello - Espinosa conducted the examination on June 12, 2020. In his

affidavit dated June 16, 2020, he opines to a reasonable degree of medical

proba bility, in pertinent part, as follows:

In summary, Rhea is a 34 - month old girl with a

history of severe hypoxic - ischemic encephalopathy

of birth. She was documented in the NICU to have

acute refractory electroclinical and electrographic

seizures, as well as MRI of the brain which were all

indicative of a neonatal hypoxic - ischemic injury. On

her examination, today is evident Rhea has severe

neurological sequela. At 34 - months of age, she has

marked delayed acquisition of language and motor

skills with salie nt signs on her neurological

examination. She has mild axial hypotonia,

moderate hypertonia in her left arm and both legs,

including sustained dystonic posturing of her left

hand, extensor posturing of her feet, and inability

to walk, all of which are sign s indicative of

combined athetoid spastic triplegic cerebral palsy.

Rhea is found to have substantial mental and

physical impairments at this time.

RheaÔs mental and physical impairments are

permanent.

In reviewing all of the available documents, the

evolution of her symptoms, the acute brain MRI

changes, her acute neonatal electroclinical seizures,

it is evident that she 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.

In summary, it is felt that the permanent and

substantial mental and physical impairments

accrued during the perinatal period of labor and

delivery.

10. The undisputed opinions of Dr. Willis and Dr. Bello - Espinosa are

credited . Based on their opinions, the undersigned finds that Rhea sustained

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

labor, delivery, or resuscitation in the immediate post - delivery period in a

hospital, which rendered Rhea p ermanently and substantially mentally and

physically impaired.

C ONCLUSIONS OF L AW

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

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

12. The Plan was established by the Legislature Ñ fo r the purpose of

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

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

§ 766.303(1), Fla. Stat.

13. The injured infant, her or his personal representative, p arents,

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. Respondent, which administers the Plan, has Ñ 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 injury is a birth - related neurological injury. Ò

§ 766.305(4), Fla. Stat.

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

compensable birth - 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 assi gned. § 766.305(7), Fla. Stat. If, on the other hand,

compensability is disputed, as alleged in the Amended Petition, the dispute

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.

15. In discharging this responsibility, the ALJ is required to make the

following threshold determinations 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

admi nistrative 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 presum ption 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

postdel ivery 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. Stat.

16 . The term Ñ birth - related neurological injury Ò is defined in

section 766.302(2) as follows:

Ñ Birth - related neurological injury Ò 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

cas e 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.

17. The evidence establishes that Rhea was born a live infant weighing at

least 2,500 grams. The unrefuted evidence further establishes that there was

an injury to RheaÔs brain c aused by oxygen deprivation occurring in the

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

period in a hospital. The undisputed evidence further establishes that said

injury has rendered her permanently and substantially mental ly and

physically impaired.

18. The undisputed evidence further establishes that obstetrical services

were delivered by a participating physician, Dr. DeSouza, in the course of

labor, delivery, or resuscitation in the immediate post - delivery period in a

hospital, Coral Springs Medical Center. It is further undisputed that

Dr. DeSouza complied with the notice requirements of section 766.316.

Accordingly, the undersigned concludes that Rhea has sustained a

compensable birth - related neurological injury.

C O NCLUSION

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

1. RespondentÔs Motion is granted, and PetitionersÔ claim is found and

determined to be compensable.

2. Jurisdiction is reserved to determine whether the notice requirements

of section 766.316 were satisfied by BHCS .

3. Jurisdiction is reserved to determine the issue of an award pursuant to

section 766.31.

D ONE A ND O RDERED this 17th day of July, 2020 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

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 17 th day of July, 2020 .

C OPIES F URNISHED :

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 701 9 1640 0000 2208 6972 )

Nancy La Vista, Esquire

Clark Fountain La Vista Prather Keen & Littky - Rubin

2nd Floor

1919 North Flagler Drive

West Palm Beach, Florida 33407

(eServed)

(Certified No. 7019 1640 0000 2208 6989 )

Robert Scott Covitz, Esquire

Falk, Wa as, Hernandez, Cortina,

Solomon and Bonner

Suite 210E

1900 Northwest Corporate Boulevard

Boca Raton, Florida 33431

(eServed)

(Certified No. 7019 1640 0000 2208 6996 )

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantat ion, Florida 33324

(eServed)

(Certified No. 7019 1640 0000 2208 7009 )

Patrick Sullivan, Esquire

Lubell & Rosen, LLC

Suite 900

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

(eServed)

(Certified No. 7019 1640 0000 2306 4948 )

Jeffery R. Lawley, Esquire

Billing, Cochran, Lyles, Mauro and Ramsey, P.A.

6 th Floor

515 East La Olas Boulevard

Fort Lauderdale, Florida 33301

(eServed)

(Certified No. 7019 1640 0000 2208 6422 )

John W. Mauro, Esquire

Billing, Cochran, Lyles, Mauro & Ramsey, P.A.

6th Floor

515 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

(eServed)

(Certified No. 7019 1640 0000 2208 6439 )

Scott C. Cochran, Esquire

Billing, Cochran, Lyles, Mauro & Ramsey, P.A.

SunTrust Center, 6th Floor

515 East Las Olas Boulevard

Fort Lauderdale, Florida 33301

(eServed)

(Certified No. 7019 1640 0000 2208 6446 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7019 1640 0000 2208 6453 )

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 1640 0000 2208 6460 )

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 commenced by filing the o riginal 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 the

appropriate Di strict 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).