20-002377N Angelina Johnson And John T. Johnson, Jr., Individually And As The Parents And Natural Guardians Of Adam Johnson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, February 25, 2021.

Summary: Minor infant did not sustain a birth-related neurological injury, and, therefore, not eligible for benefits under the NICA Plan; Petition dismissed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A NGELINA J OHNSON A ND J OHN T.

J OHNSON , J R ., I NDIVIDUALLY A ND A S T HE

P ARENTS A ND N ATURAL G UARDIANS OF

A DAM J OHNSON , A M INOR ,

Petitioners ,

vs. Case No. 20 - 2377N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATIO N A SSOCIATION ,

Respondent,

and

L EE H EALTH S YSTEM N / K / A L EE H EALTH

D / B / A H EALTHPARK M EDICAL C ENTER ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This matter came before the undersigned on RespondentÔs Motion for

Summary Final Order (RespondentÔs Motion), filed January 13, 2021;

IntervenorÔs Response to RespondentÔs Motion, filed January 25, 2021; and

PetitionerÔs Notice of Clarification of Petiti onerÔs Position (PetitionersÔ

Notice), filed January 26, 2021.

S TATEMENT OF T HE C ASE

On May 8, 2020, P etitioner s , Angelina and John T. Johnson, Jr., as

parent s and natural guardian s of Adam Johnson (Adam) , a minor, filed a

Petition for Benefits Pursuant to Florida Statute Section 776.301 et seq .

(Petition) with the Division of Administrative Hearings (DOAH), for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named Jane A.

Danie l, M.D., a s the physician who provided obstetric services for the birth of

Adam at HealthPark Medical Center, in Fort Myers, Florida, on June 11,

2018.

On May 29, 2020, DOAH mailed a cop y of the Petition to Respondent ,

Dr. Daniel, and HealthPark Medical Center via certified mail. Respondent

was served with the same on June 1, 2020.

On June 17, 2020, Lee Memorial Health System n/k/a Lee Health d/b/a

HealthPark Medical Center filed a petition for leave to intervene, which was

granted on June 19, 2020. Af ter granting three extensions of time to respond

to the Petition, on November 16, 2020, Respondent filed its response to the

Petition wherein Respondent maintained that the claim was not compensable

because Adam did not sustain a Ñbirth - related neurologica l 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 award in a second

hearing.

O n November 20, 2020, the undersigned issued an O rder requiring the

parties to advise whether a final hearing would be required; and, if so, an

estimate of the time required to conduct the hearing and several mutually

agreeable dates, on or before February 1, 202 1 , in which the parties were

available . In response, Respondent advised that compensability may be

determined by a motion for summary final order.

On November 30, 2020, PetitionersÔ, after consultation with Respondent

and Intervenor, filed a Respons e to Scheduling Order wherein they advised

as follows:

Petitioners contend that a hearing is unnecessary

because NICA has determined that the claim is not

compensable. Petitioners will not oppose NICAÔs

motion for summary judgment and do not believe

additi onal discovery is required. Petitioners are

seeking to pursue their civil remedies in Circuit

Court outside of NICA. If compensability need be

decided by hearing, Petitioners are challenging the

reasonableness of the notice based on Galen of Fla.

v . Branif f , 696 So. 2d 308 (Fla. 1997) and its

progeny. Petitioners are electing their tort

remedies.

In the same filing, it was represented that Intervenors desired an

additional 60 days to conduct discovery prior to a hearing, if necessary.

Thereafter, on Decem ber 4, 2020, a final hearing was scheduled and noticed

for March 25 through 26, 2021.

On January 13, 2021, RespondentÔs Motion was filed. Said motion avers

that PetitionersÔ claim is not compensable as Adam did not sustain a birth -

related neurological in jury. RespondentÔs Motion was represented as

unopposed by Petitioners.

In response to an Order to Show Cause, on January 25, 2021, Intervenors

represented that it Ñhas no legal basis to show why RespondentÔs Motion for

Summary Final Order should not be g ranted.Ò PetitionersÔ Notice, filed

January 26, 2021, clarifies that Petitioners agree with the relief sought by

RespondentÔs Motion (a determination of noncompensability), but do not

agree with the reasoning (that the infant did not sustain a birth - relate d

neurological injury). Petitioners maintain that Intervenor did not satisfy the

notice requirements of section 766.316 , and, therefore, they Ñshould have the

option to elect common law remedies, instead of NICA benefits.Ò A telephonic

conference was condu cted on February 19, 2021, and Petitioners represented

that they did not oppose RespondentÔs Motion and would not be filing a

response in opposition.

F INDINGS OF F ACT

1. Adam was born on June 11, 2018, at HealthPark Medical Center, in

Fort Myers, Florid a.

2. Adam was a single gestation and his weight at birth exceeded 2500

grams.

3. Obstetrical services were delivered by a participating physician,

Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the

immediate post - delivery pe riod in a hospital, HealthPark Medical Center.

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

that Adam did not sustain a Ñbirth - related neurological injury,Ò as defined by

section 766.302(2).

5. 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. Johnson and Adam and opine as to whether Adam

sustained an injury to his brain or spinal cord caused by oxygen depriva tion

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

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

6. In his affidavit , dated December 11, 2020, Dr. Willis summarized his

opinion s as follows:

In summary, an abnormal FHR pattern developed

during labor and resulted in a depressed newborn.

Cord blood pH was 6.9 with a base excess of - 18.6.

Seizures began shortly after birth. The newborn

hospital course was complicated by multi - system

organ failures, consisten t with birth - related oxygen

deprivation. MRI on DOL 4 was suggestive of HIE,

but findings improved with follow - up MRI.

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] a potential for brain injury, but the

follow - up normal MRI suggests that no actual brain

injury occurred.

7. Respondent also retained Michael S. Duchowny, M.D., a pediatric

neurologist, to review the medical records of Ms. Johnson and Adam, and to

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

his review and IME was to determine whether Adam suffered from a

permanent and substantial mental and physical impairmen t 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.

8. Dr. Duchowny reviewed the pertinent medical records and, on

October 20, 2020, conducted the IME. In his affidavit , dated December 16,

2020, Dr. Duchowny summarized his opinions as follows:

In summary, AdamÔs evaluation reveals findings

consistent with a substantial motor but not mental

impairment. He evidences a spastic diplegia, but

with relative preservation of motor milestones, and

age - appropriate receptive and expressive

communication. Adam additionally has a severe

behavior disorder, and has a sleep disorder and

attentional impairment. His seizures are in

remission.

Review of the medical records reveals that Adam

was the product of a 40 week gestation and was

delivered vaginally with Apgar scores of 3, 6, 7 and

6 at one, five and 10 minutes. Terminal meconium

was noted at delivery. Adam initially required

positive pressure ventilation until his respirations

were subsequently managed with nasal CPAP. His

cord gas pH was 6.917 with a base excess of Ï 18.6.

Adam developed seizures in the NICU and was

intubated on the first day of life for apnea. Multiple

sei zures were documented on video/EEG

monitoring. He was oliguric on the first day of life

and had elevated liver function studies. An

elevated lactic acid level was noted and there was a

borderline elevation of DIC parameters.

Adam was enrolled in a body h ypothermia protocol

on the first day of life. His blood pressure was

maintained with dopamine.

A head ultrasound on June 11 at 22:23 (DOL#2)

was unremarkable. A brain MR imaging study

performed on June 15, (DOL#5) revealed multifocal

areas of restricted diffusion. Follow - up brain MR

imaging study on July 5th revealed near - complete

resolution of the previously observed diffusion

abnormalities. A third MR imaging study obtained

one month ago confirms the resolution of the DWI

findings noted on the first bra in MR imaging study.

9. In conclusion, Dr. Duchowny opined that Adam does not have a

substantial mental impairment, and, therefore, did not recommend that

Adam be considered for inclusion in the Plan.

10. The undisputed findings and opinions of Drs. Will is and Duchowny are

credited. The undersigned finds that Adam 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 - deliver y period in a hospital, which rendered him permanently and

substantially mentally and physical impaired.

C ONCLUSIONS OF L AW

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

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

12 . The Plan was established by the Legislature Ñfor the purpose of

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

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

§ 766.303(1), Fla. Stat .

1 3 . T he 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 inj ury.Ò § 766.305(4), Fla.

Stat .

1 4 . 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 administrativ e 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 assigned ALJ in accordance with the provisions of chapter 120, Florida

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

1 5 . 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 birth - related

neurolog ical injury. If the claimant has

demonstrated, to the satisfaction of the

administrative 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 perma nently 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) .

(b) Whether obstetrical services were delivered by a

participating phy sician 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.

§ 766.309(1), Fla. Stat .

16 . 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 c ord 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

at least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in the

course of labor, deli very, or resuscitation in the

immediate postdelivery period in a hospital, which

renders the infant permanently and substantially

mentally and physically impaired.

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

neurological injury, or th at obstetrical services were not delivered by a

participating physician at birth, he or she is required to enter an order and

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

18. The un disputed e vidence establishes that there was not an injury to

AdamÔs brain 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 him permanently and substantially

mentally and physic ally impaired . Thus, it is concluded that he 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 th e Conclusions of Law, it is O RDERED

that RespondentÔs Motion is granted and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 25th day of February, 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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of February, 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manag er Simone Marstiller, Secretary

Consumer Services Unit Health Quality Assurance

Department of Health Agency for Health Care Administration

4052 Bald Cypress Way, Bin C - 75 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32399 - 3275 Tallahassee, Florida 32308

(Certified No. 7020 2450 0002 1970 5213 ) (Certified No. 7020 2450 0 002 1970 5251)

Edward V. Ricci, Esquire Kenney Shipley, Executive Director

Searcy Denney Scarola Barnhart & Shipley Florida Birth - Related Neurological

2139 Palm Beach Lakes Boulevard Injury Compensation Association

West Palm Beach, Florida 33409 Suite 1

(Certified No. 7020 2450 0002 1970 5220) 2360 Christopher Place

Tallahassee, Florida 32308

Tana D. Storey, Esquire (Certified No. 7020 2450 0002 1970 5268)

Rutledge Ecenia, P.A.

119 South Monroe Street , Suite 202

Tallahassee, Florida 32301

(Certified No. 702 2450 0002 1970 5237)

Jane A. Daniel, M.D. Mark A. Haskins, Esquire

15621 New Hamps hire Court Mark A . Haskins , PA

Fort Myers, Florida 33908 Suite 230

(Certified No. 7020 2450 0002 1970 5244) 2801 Fruitville Road

Sarasota, Florida 34237

(Certified No. 7020 2450 0002 1970 5275)

N OTICE O F 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 notice of

administrative appeal with the a gency c lerk of the Division of A dministrative

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 Neuro logical Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).