20-001345N Courtney Phillips, Individually And As Parent And Next Friend Of Jace Kelley, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, May 26, 2020.

Summary: Based upon the unrebutted evidence of record, Petitioner did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C OURTNEY P HILLIPS , I NDIVIDUALLY A ND

A S P ARENT A ND N EXT F RIEND OF J ACE

K ELLEY , A M INOR ,

Petitioner ,

vs. Case No. 20 - 1345N

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 came before the undersigned on RespondentÔs Motion for Summary

Final Order, filed May 1, 2020 . In its Motion, the Florida Bir th - Related

Neurological Injury Compensation Association (NICA) asserts that in order

for a claim to be compensable under the Florida Birth - Related Neurological

Injury Compensation Plan (the Plan), the statutory prerequisites of section

766.309, Florida Sta tutes, must be met, including:

(1) The administrative law judge shall make the

following determinations based upon all available

evidence:

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

neurological injury . . .

(b) Whether obstetrical services were delivered by

a participating physi cian 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.

* * *

(2) If the administrative law judge determines that

the injury alleged is not a birth - related neurological

injury or that obstetrical services were not

delivered by a participating physician at the birth,

she or h e shall enter an order . . . . (emphasis

added ).

The term Ñbirth - related neurological injuryÒ is defined in section

766.302(2) as:

(2) 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 o f 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 th e infant permanently and

substantially men tally and physically impaired.

This definition shall apply to live births only and

shall not includedisability or death caused by

gene tic or congenital abnormality. (emphasis

added).

Petitioner filed a response to the motion on May 7, 2020, stating:

1. The Petitioner has reviewed NICAÔs Motion for

Summary Final Order and the attached affidavit of

Donald C. Willis, M.D., asserting that the instant

claim is not compensable under the Florida Birth -

Related Neurological Injury Compensation Plan.

2. The Petitioner does not object to Dr. WillisÔ

affidavit, and will not be filing any affidavit in

opposition to it.

F INDINGS OF F ACT

1. On March 5 , 20 20 , Petitioner filed a Petition for Benefits Pursuant to

Florida Statute S ection 766.301 et seq. , for benefits pursuant to sections

766.301 - 766.316, otherwise known as the Plan.

2. The baby was born on February 26 , 201 6 , at Ascension Sacred Heart

Hospital Emerald Coast (Hospital). At birth the infant weighed 3325 grams.

The circ umstances of the labor, delivery, and birth of the minor child are

reflected in the medical records the Hospital submitted with the Petition.

3. In the instant case, NICA has retained Donald C. Willis, M.D. , as its

medical expert specializing in maternal - fetal medicine pediatric neurology .

Upon examination of the pertinent medical records, Dr. Willis opined:

There was no apparent obstetrical event that

resulted in oxygen deprivation and or mechanical

trauma to the baby's brain or spinal cord during

labor, delivery or the immediate post - delivery

period.

4. Dr. WillisÔs medical report dated March 23 , 20 20 , reflects his ultimate

opinion that:

Seizure activity was noted on the second hospital

day and MRI was consistent with acute cerebra l

infarcts. The brain i njury appears to have occurred

after the immediate post - delivery period and not

birth related.

5 . The medical report of Dr. Willis is the only evidence of record relating to

the issue of whether the subject claim is compensable as defined by the

statute. As noted, Petitioner stated that she does not object to Dr. WillisÔ s

report , and will not be filing any affidavit in opposition to it. The Petition,

along with the unrebutted medical report of Dr. Willis , establishes that there

are no genuine issues of mat erial fact regarding the compensability of this

claim.

C ONCLUSIONS OF L AW

6 . The Division of Administrative Hearings (DOAH) has jurisdiction over

the parties to and the subjec t matter of these proceedings. §§ 766.301 -

766.316, Fla. Stat.

7 . The Plan was e stablished by the Legislature Ñfor the purpose of

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

injury claimsÒ related to births occurrin g on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

8 . An injured infant, his or h er personal representative, parents,

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

a cla im for compensation with DOAH. §§ 766.302(3), 766.303( 2), and

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

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

served 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.

9 . If NICA determines t hat the alleged injury is a birth - related

neurological injury that is compensable under the Plan, it may award

compensation 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 the

assigned administrative law judge in accordance with chapter 120, Florida

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

1 0 . The first inquiry is whether the infant has sustained a birth - related

neurological injury as defined by section 766.302(2), which provides:

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 t he

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

r enders the infant permanently and substantially

men tally and physically impaired. This definition

shall apply to live births only and shall not include

disability or death caused by gen eticor congenital

abnormality.

1 1 . If the administrative law judge de termines that the infant meets the

statutory threshold for weight and has sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical injury, and that as a result of the

injury the infant was rendered permanently and substantially me ntally 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 2 . In this case, the evidence does not support a finding that the injury is

a birt h - related neu rological injury. This issue is dispositive w ith respect to

compensability. Based upon this evidence, Jace Kelley did not sustain a

birth - related neurological injury as defined in section 766.302(2), and is not

eligible for benefits under the Plan.

C ONCLU SION

Based upon the Findings of Fact and Conclusions of Law provided above,

PetitionerÔs claim is not compensable under the Plan, and the Petition is

dismissed with prejudice.

D ONE A ND O RDERED this 26th day of May , 2020 , in Tallahassee, Leon

County, Flor ida.

S

W. D AVID W ATKINS

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 26th day of May , 2020 .

C OPIES F URNISHED :

(via certified mail)

Allison C. McMillen, Esquire

McMillen Law Firm, P.A.

Suite 105

163 East Morse Boulevard

Winter Park, Florida 32789

(eSe rved)

(Certified Mail No. 7019 1640 0000 2306 3651)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7019 1640 0000 2306 3668)

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 3675)

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 3682)

Kimberly Hood, M.D.

Suite 121B

137 Crystal Beach Drive

Destin, Florida 32541

(Certified Mail No. 7019 1640 0000 2306 3699)

Ascension Sacred Heart Hospital Emerald Coast

Attention: Risk Management

7800 US - 98

Miramar Beach, Florida 32550

(Certified Mail No. 7019 1640 0000 2306 3705)

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 f iling 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

app ropriate 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).