20-001440N Jennifer Ann Mungillo, Individually And Colton Summerlin, Individually, And As Natural Parents And Guardians Of Kylie Leigh Summerlin, A Minor And Kinley Ann Summerlin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 4, 2021.

Summary: Claim found to be noncompensable as infant did not sustain a birth-related neurological injury; Petition dismissed with prejudice.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ENNIFER A NN M UNGILLO , I NDIVIDUALLY

A ND C OLTON S UMMERLIN , I NDIVIDUALLY ,

A ND A S N ATURAL P ARENTS A ND

G UARDIANS OF K YLIE L EIGH S UMMERLIN ,

A M INOR A ND K INLEY A NN S UMMERLIN , A

M INOR ,

Petitioners ,

vs. Case No. 20 - 1440N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

L EE M EMORIAL H EALTH S YSTEM R AVI

C HOKSHI , M.D.; J OSEPH F. L ANG ; C HARLES

B URLISON , M.D.; O B H OSPITALIST G ROUP ,

LLC; M EDNAX , I NC .; M EDNAX S ERVICES ,

I NC ; P EDIATRIX M E DICAL G ROUP , I NC .;

P EDIATRIX M EDICAL G ROUP OF F LORIDA ,

I NC .; J UDITH K RAMMER , M.D.; A ND B ENJA ,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This matt er came before the undersigned on RespondentÔs Amended

Unopposed Motion for Final Summary Order as to the Claim of Kinley Ann

Summerlin (RespondentÔs Amended Motion), filed May 18, 2021.

S TATEMENT OF T HE C ASE

On March 13, 2020, Petitioners, Jennifer Ann Mungillo and Colton

Summerlin , individually and as natural parents and guardians of Kinley Ann

Summerlin (K inley ), a minor, filed a Petition for Benefits Pursuant to Florida

Statute Section 766.301 et. seq. (Petition) with the Division of Administrative

He arings (DOAH), for a determination of compensability under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan). The Petition

named Ravi Chokshi, M.D. and Charles K. Burlison, M.D., as the physician s

who provided obstetric services for th e birth of Kinley at HealthPark Medical

Center , in Fort Myers , Florida, on September 18, 2017 .

On March 26, 2020, DOAH mailed a cop y of the Petition to Respondent,

Drs. Burlison and Chokshi, and HealthPark Medical Center via certified

mail. Respondent wa s served with the same on March 27, 2020.

On June 10, 2020, Lee Memorial Health System 1 and Dr. Chokshi jointly

filed a Petition for Leave to Intervene , which was granted. On June 10, 2020,

Joseph F. Lang, M.D.; Charles Burlison, M.D.; and OB Hospitalist Group,

LLC jointly filed a Petition for Leave to Intervene , which was granted.

On August 17, 2020, Respondent filed its Response to Petition for

Benefits, wherein Respondent maintained that the claim was not

compensable because Kinley did not sustain a Ñbirth - related neurological

injury,Ò as defined by section 766.302 (2), Florida Statutes. Respondent

request ed that a bifurcated hearing be scheduled to address the issues of

compensability and notice first, and, if required, to address the amount of an

awa rd in a second hearing. On August 27, 2020, the undersigned issued an

Order Requiring Response directing the parties to communicate and advise

whether a final hearing would be required; and, if so, an estimate of the time

required to conduct the hearing an d several mutually agreeable dates to

conduct the hearing .

1 Lee Memorial Health System n/k/a Lee Health owns and oper ates HealthPark Medical

Center.

The parties filed a Joint Status Report, and, on October 2, 2020, the final

hearing was noticed for January 19 and 20, 2021. Thereafter, the parties

engaged in significant discovery and, on Decembe r 23, 2020, requested a

continuance of the hearing. The continuance was granted and the final

hearing was rescheduled for February 25 and 26, 2021.

On February 17, 2021, Respondent filed its Unopposed Motion to Cancel

Final Hearing, which was granted. On March 10, 2021, RespondentÔs

Unopposed Motion for Summary Final Order was filed; however, the same

was denied, without prejudice on April 23, 2021. RespondentÔs Amended

Motion was filed on May 18, 2021.

F INDINGS OF F ACT

1. Kinley was born on September 18 , 2017, at HealthPark Medical Center,

in Fort Myers, Florida.

2. Kinley was a twin, and her weight at birth exceeded 2,000 grams.

3. As set forth in greater detail below, the unrefuted evidence establishes

that Kinley did not sustain a Ñbirth - related neu rological injury,Ò as defined by

section 766.302(2).

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

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

medical records of Ms. Mungillo and Kinley and opine as to whether Kinley

sustained an injury to her brain or spinal cord caused by oxygen deprivation

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

resuscitation in the immediate post - delivery period in a hospital.

5. Dr. Willis con ducted the review and in his supporting affidavit provides

as follows:

Based upon my education, training, and experience,

it is my professional opinion, within a reasonable

degree of medical probability, that there was no

apparent obstetrical event that r esulted in oxygen

deprivation and/or mechanical trauma to the brain

or spinal cord during labor, delivery, or in the

immediate post - delivery period.

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

neurologist, to review the medical records of Ms. Mungillo and Kinley, and to

conduct an Independent Medical Examination (IME) of Kinley. The purpose

of his review and IME was to determine whether Kinley suffered from a

permanent and substantial mental and physical impairment as a result of an

injury to the brain or spinal cord caused by oxygen deprivation or mechanical

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

delivery period.

7. Dr. Bello - Espinosa reviewed the pertinent medical records and, on

August 15 , 2020, conducted the IME. In his supporting affidavit, he

summarized his opinions as follows:

Based on my education, training, and experience, it

is my professional opinion, within a reasonable

degree of medical probability that Kinley

Summerlin has no substantial or permanent

mental impairment and no substantial or

permanent physical impairment. There is no

evidence to indicate that Kinley has any residual

neurological impairments that occurred during

labor, delivery, or the immediate post - delivery

per iod.

8. The undisputed and unopposed findings and opinions of Drs. Willis and

Bello - Espinosa are credited. The undersigned finds that Kinley did not

sustain an injury to the brain or spinal cord 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 rendered her

permanently and substantially mentally and physical impaired.

C ONCLUSIONS OF L AW

9 . DOAH 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 Legislature Ñfor the purpose of

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

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

§ 766.303(1), Fla. Stat .

1 1 . The injured infant, her or his 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 . Respondent, which administers the Plan, has Ñ45 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 .

1 2 . If Respondent determines that the injury alleged is a claim that is a

compensable birth - related neurological injury, it may award compen sation to

the claimant, provided that the award is approved by the administrative law

judge (ALJ) to whom the claim has been assigned. § 766.305(7), Fla. Stat . If,

on the other hand, compensability is disputed, the dispute must be resolved

by the assi gned ALJ in accordance with the provisions of chapter 120, Florida

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

1 3 . In discharging this responsibility, in the matterÔs present posture, the

ALJ is required to make the following thresh old determination based upon

the available evidence:

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

neurological injury. If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spi nal 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 presumption shall arise that the injury

is a birth - related neurological injury as defined in

s. 766.303(2) .

§ 766.309(1), Fla. Stat .

14 . 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 li ve 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 grams at birth caused by oxygen

deprivation or mechanical injury occurring in the

course of labor, delivery, or re suscitation in the

immediate postdelivery period in a hospital, which

renders the infant permanently and substantially

mentally and physically impaired.

15. If the ALJ determines that the injury is not a birth - related

neurological injury, he or she is req uired to enter an order and immediately

provide a copy to the parties. § 766.309(2), Fla. Stat.

16. The un disputed and unopposed e vidence establishes that there was

not an injury to KinleyÔs brain caused by oxygen deprivation or mechanical

injury occurrin g in the course of labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital, which rendered her

permanently and substantially mentally and physically impaired . Thus, it is

concluded that she did not sustain a compensable birth - related neurological

injury, as defined in section 766.302(2), and, therefore, is not eligible for

benefits under the Plan.

C ONCLUSION

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

that RespondentÔs Amended Motion is granted an d the Petition is dismissed

with prejudice.

D ONE A ND O RDERED this 4th day of June, 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.sta te.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of June, 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Thomas M. Hoeler, Esquire

Consumer Services Unit Agency for Health Care Administration

Department of Health 2727 Mahan Drive, Mail Stop 3

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

Tall ahassee, Florida 32399 - 3275 (C ertified No. 7020 2450 0002 1970 3257)

(Certified No. 7020 2450 0002 1970 3219)

Kenney Shipley, Executive Director

Kim Kellum, Esquire Florida Birth - Related Neurological

Agency for Health Care Administration Injury Compensation Association

2727 Mahan Drive, Mail Stop 3 Suite 1

Tallahassee, Florida 32308 2360 Christopher Place

(Certified No. 7020 2450 0002 1970 3226) Tallahassee, Florida 32308

(Certified No.7020 2450 0002 1970 3264)

Simone Marstiller , Secretar y

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified No.7020 2450 0002 1970 3240)

Ryan A. Fogg, Esquire Christin a M. Benitez, Esquire

Halberg & Fogg, PLLC Rissman, Barrett, Hurt, Donahue

Barristers Building McLain & Mangan, P.A.

Suite 3 - B Suite 1100

1615 Forum Place 1 North Dale Mabry Highway

West Palm Beach, Florida 33 401 Tampa, Florida 33609

(Certified No. 7020 2450 0002 1970 3233) (Certified No. 7020 2450 0002 1970 3042)

Douglas B. Lumpkin, Esquire Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, Wicker, Smith, O'Hara,

McCoy & Ford, P.A. McCoy & Ford, P.A.

Suite 910 Post Office Box 2753

1819 Main Street Orlando, Florida 32802

Sarasota, Florida 34236 - 6000 (Certified No. 7020 2450 0002 1970 5695 )

(Certified No. 7020 2450 0002 1970 3271)

Elizabeth A. Myers, Esquire

Ashley P. Withers , Esquire Smith Bigman Brock, P.A.

Wicher, Smi th, Ohara, 444 Seabreeze Boulevard

McCoy & Ford, P.A. Daytona Beach, Florida 32118

Suite 10200 (Certified No.7020 2450 0002 1970 3288)

9128 Strada Place

Naples, Florida 34108 - 2683

(Certified No. 7020 2450 0002 1970 3035)

N OTICE O F R IGHT T O J U DICIAL 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 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 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).