20-000857N Ciarra Mcbryde, Individually And As Natural Parent Of Tate Hagadone, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 23, 2020.

Summary: Petitioner's child did not experience a compensable injury as defined in section 766.302(2), Florida Statutes.

S TATEMENT OF T HE I SSUE

Th e issue for consideration is whether Tate Hagadone has suffered a

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

Florida Statutes (2016), compensable by the Florida Birth - Related

Neurological Injury Compensation Plan (Plan ).

P RELIMINARY S TATEMENT

On February 15, 2020, Ciarra McBryde, individually and as the natural

parent of Tate Hagadone (Tate), filed a Petition for Benefits Pursuant to

Florida Statute Section 7 66.301 et seq. ( t he Petition). The Petition identified

Dr. Se aborn M. Hunt, Jr., M.D., as the physician providing obstetrical

services, and AdventHealth, f/k/a Munroe Regional Medical Center (Munroe Regional), as the hospital where Tate was born. On February 18, 2020, NICA, Dr. Hunt, and Munroe Regional were served with copies of t he Petition by

certified mail. Certified return mail receipts indicate that all three were served.

On April 6, 2020, Munroe Regional sought leave to intervene in the

proceedings, and its motion was granted by Order dated April 16, 2020. On

May 15, 2020, NICA filed a Notice of Non - Compensability and Request for

Evidentiary Hearing on Compensability. In response, on May 21, 2020, an

Order was issued requesting the parties to provide a response regarding the

need for a hearing, if any, and if so, an estimate of how long the hearing

would take, dates for conducting the hearing, and the parties’ choice of venue.

On June 3, 2020, NICA responded, advising that the parties had conferred

and agreed that the claim is non - compensable, and that a hearin g would not

be required. On June 5, 2020, the Motion for Partial Summary Final Order

was filed. The time for filing a response in opposition has passed. All

statutory references are to the 2016 codification unless otherwise specified.

F INDINGS OF F ACT

1. Tate was born on September 18, 2016, at Munroe Regional. He was a

child born of single gestation.

2. NICA retained Donald C. Willis, M.D., as a medical expert specializing

in maternal - fetal medicine. NICA has submitted his expert report dated

March 3, 202 0, and his affidavit dated June 2, 2020, as Exhibit 1 in support

of its Motion.

3. Dr. Willis’ s report contains the following summary:

The mother was admitted to the hospital at

41 weeks gestational age with contractions. The

fetal heart rate (FHR) monito r tracing during labor

was available for review. Baseline FHR was normal

a[t] 130 bpm with good variability on admission.

The tracing remained reassuring during labor.

Spontaneous vaginal delivery was stated to be

uneventful. Birth weight was 3,870 grams. Apgar

scores were 8/9. The newborn hospital course was

uncomplicated. Newborn out - patient evaluation at

4 days was reported as normal.

Large head size was noted several months after

birth. Imaging studies identified a benign intracranial tumor, choroid p lexus papilloma, which was resected at about 6 - months of age. VP

shunt placement for hydrocephaly was complicated

by infection and required removal and subsequent

replacement.

In summary, the FHR tracing monitor during labor

did not suggest fetal distress . The baby was not

depressed at birth with Apgar scores of 8/9.

Newborn hospital course was uncomplicated. Brain injury may have occurred several months after delivery, related to the choroid plexus papilloma,

but this would not be birth related.

There i s no apparent oxygen deprivation and or

mechanical trauma to the brain or spinal cord

during labor, delivery or the immediate post -

delivery period.

4. Dr. Willis’ s affidavit simply references his report, confirms that his

opinions contained in the affidav it are within a reasonable degree of medical

certainty, and opines that there was no apparent oxygen deprivation and or

mechanical trauma to the brain or spinal cord during labor, delivery, or the

immediate postdelivery period. Dr. Willis’ s unrebutted opin ion is credited.

5. NICA also arranged for Tate to be examined by Dr. Raj D. Sheth, M.D.,

a pediatric neurologist. His report dated May 14, 2020, and his affidavit

dated June 3, 2020, are Exhibit 2 in support of NICA’s Motion. Dr. Sheth’s

report relates in part that when Tate was approximately four months old, he

was diagnosed with having a benign brain tumor, specifically, a non -

malignant choroid plexus neoplasm, which required surgery and placement of a shunt.

6. Dr. Sheth opined that while Tate has some neurological impairments,

they do not appear to have resulted from a deprivation of oxygen or a mechanical injury to the brain or spinal cord during labor, delivery, or the

immediate postdelivery period. Dr. Sheth further opined, within a reasonable degree of medical certainty, that Tate would not meet the criteria for

com pensation in the NICA program. His opinion is consistent with the

opinion of Dr. Willis, is unrebutted, and is credited.

7. Based on the evidence presented in support of the Motion, Tate i s not

eligible for compensation under the Plan because the evidence does not indicate that Tate’s impairments are caused by oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or resuscitation

in the immediate postdelivery p eriod in a hospital.

8. Petitioner has not presented any evidence in response to the Motion to

rebut the opinions of Dr. Willis and Dr. Sheth as detailed in their affidavits

and expert reports.

C ONCLUSIONS OF L AW

9. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of these proceedings. §§ 766.301 - 766.316,

Fla. Stat.

10. The Plan was established by the Florida Legislature “for the purpose

of providing compensation, irrespective of fault, for birth - related n eurological

injury claims” related to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

11. An injured child, his or her personal representative, parents,

dependents, or next of kin may seek compensation under the Plan by filing a

clai m for compensation with the Division. §§ 766.302(3), 766.303(2),

and 766.305(1), Fla. Stat. Section 766.305(4) provides that NICA, which

administers the Plan, has 45 days from the date that a complete claim is

served to file a response to a petition, and t o submit relevant written

information relating to whether the alleged injury is a birth - related

neurological injury.

12. If NICA determines that the alleged injury is a birth - related

neurological injury that is compensable under the Plan, it may award comp ensation to the claimant, provided that the award is approved by the assigned administrative law judge. § 766.305(7), Fla. Stat. However, if NICA

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

administrative law judge in ac cordance with ch apter 120, Florida Statutes.

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

13. A birth - related neurological injury is defined by section 766.302(2),

which provides:

(2) “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 2,000 grams at birth caused by

oxygen deprivation or mechanical injury occurring in the course of labor, deliver, or r esuscitation 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 caused by

ge netic or congenital abnormality.

14. If the administrative law judge determines that the infant has

sustained a brain or spinal cord injury caused by oxygen deprivation or

mechanical injury, and that as a result the infant was rendered permanently

and sub stantially mentally and physically impaired, then section 766.309(1)

provides that there is a rebuttable presumption that the injury is a birth -

related neurological injury.

1 5. In this case, while there is evidence of physical impairment, there was

no evid ence that the impairment was caused by an obstetrical event that

resulted in oxygen deprivation or mechanical trauma to the brain or spinal

cord during labor, delivery, or the immediate postdelivery period.

C ONCLUSION

Based on the Findings of Fact and Co nclusions of Law above, Petitioner’s

claim is not compensable under the Plan, and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 23rd day of June, 2020, in Tallahassee, Leon

County, Florida.

L ISA S HE ARER N ELSON

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 Admi nistrative Hearings

this 23rd day of June, 2020 .

C OPIES F URNISHED :

(via certified mail)

Brian C. Guppenberger, Esquire

Colling, Gilbert, Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7015 06 40 0001 2706 9099)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9105)

David W. Bla ck, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9112)

David O. Doyle, Jr., Esquire

Pearson Doyle Mohre & Pastis, LLP

Suite 401

485 North Keller Road

Orlando, F lorida 32751

(eServed)

(Certified Mail No. 7015 0640 0001 2706 9129)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0001 2706 913 6)

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. 7015 0640 0001 2706 9143)

Seaborn M. Hunt, Jr., M.D.

No. 703

150 Southeast 17th Street

Ocala, Florida 34471

(Certified Mail No. 7015 0640 0001 2706 9150)

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 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 the

appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla.

Birth - Related Neurological Injury Comp. Ass'n v. Ca rreras , 598 So. 2d 299

(Fla. 1st DCA 1992).