20-002119N Scott Stubbs And Jessica Stubbs, On Behalf Of And As Parents And Natural Guardians Of Scott Stubbs, Jr., A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, December 4, 2020.

Summary: The child did not sustain a ?birth-related neurological injury? as defined in section 766.302(2). (The child did not suffer a permanent and substantial, mental and physical impairment.) The child is not eligible for benefits under the NICA Plan.

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (the “Plan”).

The Petition identified Karem Alvarez, M.D., Julia King, D.O., and

Camille Christelle Imbo - Nlogo, M.D., as the physicians who provided

obstetrical services at Scott ’s birth on September 14, 2019, at Galencare, Inc.,

d / b /a Brandon Regional Hospital (“Brandon Hospital”), in Brandon, Florida.

DOAH served Dr. Alvarez, Dr. King, and Dr. Imbo - Nlog o w ith a copy of

the Petition on May 7, 2020, and served Brandon Hospital that same date.

DOAH also served NICA with a copy of the Petition on May 7, 2020.

Brandon Hospital mo ved to intervene in this matter on May 14, 2020,

which was granted. Also moving to intervene were Dr. King on May 14, 2020,

and Dr. Alvarez on June 17, 2020 ( both of which were granted) .

On September 4 , 2020, NICA filed its response to the Petition, taking the

position that Petitioners’ claim is not compensable under the Plan. NICA

requested DOAH schedule a n evidentiary hearin g to determine

compensability.

On September 21, 2020, NICA filed a Motion for Summary Final Order

requesting the Administrative Law Judge (“ALJ”) enter a summary final

order finding the claim not compensable u nder the NICA statute because

Scott did not suffer a “birth - related neurological injury” as defined in section

766.302(2) , Florida Statutes . On November 17, 2020, NICA filed a status

update with DOAH representing that the Intervenors do not oppose NICA’s

m otion. NICA further relayed that Petitioners, on the othe r hand, do oppose

NICA’s motion; however, Petitioners did not intend to file a response in

opposition to the motion.

F INDINGS OF F ACT

1. Scott was born on September 14, 2019, at Brandon Hospital loca ted in

Brandon, Florida.

2. The Petition alleges that Karm Alvarez, M.D., Julia King, D.O., and

Camille Christelle Imbo - Nlogo, M.D., provided obstetrical services at Scott’s

birth. 1

3. Upon receiving the Petition, NICA retain ed Donald Willis, M.D., a

boar d - certified obstetrician/gynecologist specializing in maternal - fetal

medicine, as well as Luis E. Bello - Espinosa, M.D., a pediatric neurologist, to

review Scott’s medical records and condition. NICA sought to determine

whether Scott suffered a “birth - relat ed neurological injury” as defined in

section 766.302(2). Specifically, NICA requested its medical consultants opine whether Scott experienced an injury to the brain or spinal cord caused by

oxygen deprivation or mechanical injury which occurred in the cou rse of

labor, delivery, or resuscitation in the immediate post - delivery period. And, if

so, whether this injury rendered Scott permanently and substantially mentally and physically impaired.

4. Dr. Willis reviewed Scott’s medical records and noted that:

T he mother was admitted to the hospital at 36

weeks for induction of labor due to severe

Preeclampsia.

* * *

The baby was depressed at birth. The baby was

floppy and cyanotic at birth with an initial heart

rate < 100="" bpm.="" bag="" and="" mask="" ventilation="">

started with good response. The baby was taken to the nursery on oxygen.

* * *

1 No evidence was presented to the undersigned regarding whether these doctors were

“participating physicians” under the Plan at th e time Scott was born. See § 766.302(7), Fla.

Stat.

Neurologic exam was abnormal after birth and

with no improvement and the abnormal [arterial blood gas], cooling protocol was initiate for

suspected hypoxic - ischemic enceph alopathy (HIE).

* * *

The newborn hospital course was complicated by

respiratory distress, elevated liver funct ions and

mild thrombocytopenia … . Head Ultrasound after

birth was normal. Continuous EEG during the initial 4 days of life was reported as n ormal. MRI

on DOL 7 was reported as normal.

* * *

There was an apparent obstetrical event that

resulted in oxygen deprivation during labor,

delivery and continuing into the immediate post -

delivery period. Fortunately, the oxygen

deprivation does not ap pear to have resulted in

brain injury, based on a normal MRI on DOL 7.

5. Dr. Willis concluded, within a reasonable degree of medical probability,

that “there was no apparent obstetrical event or mechanical trauma to the

brain or spinal cord during labor, delivery, or the immediate post - delivery

period.”

6. Dr. Bello - Espinosa agreed with Dr. Willis that Scott did not suffer

injuries that qualify for inclusion in the NICA Plan. Dr. Bello - Espinosa

reviewed Scott’s medical records, as well as conducted an ind ependent

medical examination of Scott on August 28, 2020. Dr. Bello - Espinosa opined,

within a reasonable degree of medical probability:

Scot t is an Eleven and a half month - old boy [with]

history of therapeutic cooling for hypoxic - ischemic

encephalopathy wh ich occurred at birth. Scott’s

comprehensive neurological examination is normal

today. There was no evidence of upper or lower

motor neuron signs, nor finding to indicate any residual encephalopathy or brain dysfunction. His

development and cognitive abili ties are appropriate

for his age despite his history of perinatal asphyxia.

Considering the clinical presentation, I do feel that

there is not enough evidence to recommend Scott is included in the NICA program.

7. Dr. Bello - Espinosa concluded that Scott does not suffer from a

permanent and substantial mental or physical impairment. Dr. Bello -

Espinosa did not find any evidence of neurological injury related to Scott’s

birth.

8. Based on the statements from Dr. Willis and Dr. Bello - Espinosa , NICA

determin ed that Petitioners’ claim was not compensable under section

766.302(2).

9. A review of the documents in the record reveals no contrary evidence to

dispute the findings and opinions of Dr. Willis and Dr. Bello - Espinosa . Their

opinions are credible and per suasive.

C ONCLUSIONS OF L AW

10 . The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding pursuant to sections 766.301 -

766.316. The undersigned, as an A LJ , has “exclusive jurisdiction to

determine whet her a claim filed under [NICA] is compensable.” §§

766.301(1)(d), 766.30 4, and 766.311(1), Fla. Stat .

11 . The Florida Legislature established the Plan “for the purpose of

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

injury claims.” § 766.303(1), Fla. Stat.

1 2 . To seek compensation under the Plan, a legal representative on behalf

of an injured infant files a claim with DOAH. §§ 766.3 02(3) and 766.305(1),

Fla. Stat . NICA, which administers the Plan, then has “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.” § 766.305(4), Fla. Stat.

1 3 . If NICA determi nes that the injury alleged in a claim 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

assigned. § 766.305(7), Fla. Stat.

1 4 . In this matter, however, NICA determined that Petitioner s ’ claim is

not compensable under the Plan. Therefore, NICA filed the Motion for Summary Final Order, requesting a finding th at Scott is not eligible for

NICA Plan benefits.

1 5 . In reviewing the compensabil ity of a claim, section 766.309(1) directs

the ALJ to make the following determinations based upon the available

evidence:

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

neurological injury;

(b) Whether obstetrical services were delivered by

a partic ipating 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 supervised by a participating physician in the course of labor, delivery, or res uscitation in the immediate

postdelivery period in a hospital; and

(c) How much compensation, if any, is awardable

pursuant to s. 766.31.

1 6 . The term “birth - related neurological injury” is defined in section

766.302(2) as:

[I] njury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single g estation

.. . 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 i mpaired.

1 7 . “ The [NICA] Statute is written in the conjunctive and can only be

interpreted to require permanent and substantial impairment that has both

physical and mental elements.” Fla. Birth - Related Neuro . Injury Comp. Ass’n

v. Fla. Div. of Admin. Hea rings , 686 So. 2d 1349, 1356 (Fla. 1997).

1 8 . In reviewing the injury in this matter, the preponderance of the

evidence does not e stablish that Scott sustain ed a “birth - related neurological

injury” as defined in section 766.302(2). Dr. Willis, while noting that an

apparent obstetrical event did occur that resulted in oxygen deprivation,

concluded that the oxygen deprivation did not appear to result in brain

injury. Similarly, Dr. Bello - Espinosa found no evidence of neurological injury

related to Scott’s bir th. Dr. Bello - Espinosa added that Scott does not suffer

from a permanent and substantial mental or physical impairment.

1 9 . Accordingly , based on the available evidence in the record, the

undersigned determines that Scott has not suffered a “birth - relat ed

neurological injury” and is not eligible for NICA benefits.

D ISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the Petition is dismissed, with prejudice.

D ONE A ND O RDERED this 4th day of December, 2020 , in Tallahassee, Leon

County, Florida.

J. B RUCE C ULPEPPER

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 4th day of December , 2020 .

C OPIES F URNISHED :

(via certified mail)

Camille Christelle Imbo - Nloga, M.D.

119 Oakfield Drive

Brandon, Florida 33511

(Certified No.7020 1290 0001 6309 942 3 )

Matthew K. Schwencke, Esquire

Searcy, Denney, Scarola,

Barnhart and Shipley, P.A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

(eServed)

(Certified No. 7020 1290 0001 6309 9416 )

Kenney Shipley, Executive Director

Florida Birth - Rel ated Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7020 1290 0001 6309 9409 )

Mark R. Messerschmidt, Esquire

La Cava Jacobson & Goodis, PA

Suite 1250

501 East Kennedy Boul evard

Tampa, Florida 33602

(eServed)

(Certified No. 7020 1290 0001 6309 9331 )

Gabrielle Osborne, Esquire

Beytin, McLaughlin, McLaughlin,

O'Hara, Kinman & Bocchino, P.A.

1706 East Eleventh Avenue

Tampa, Florida 33605

(eServed)

(Certified No. 702 0 1290 0001 6309 9348 )

Tana D. Storey, Esquire Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified No. 7020 1290 0001 6309 9355 )

Mindy McLaughlin, Esquire

Burton, Beytin & McLaughlin, P.A.

Suite 2900

2 01 North Franklin Street

Tampa, Florida 33602

(eServed)

(Certified No. 7020 1290 0001 6309 9362 )

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7020 1 290 0001 6309 9379 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7020 1290 0001 6309 9386 )

Shevaun L. Harris , Acting Secretary

Health Qua lity Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified No. 7020 1290 0001 6309 9393 )

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. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).