20-002378N Jordan Lett And Walter Bivins, As Parents And Natural Guardians Of Kannon Lett, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, September 15, 2020.

Summary: Petitioners' child's injury does not meet the definition of a birth-related neurological injury, and is not compensable under the Plan.

Statutes (2018), compensable by the Florida Birth - Related Neurological

Injury Compensation Plan (Plan).

P RELIMINARY S TATEMENT

On May 14, 2020, Jordan Lett and Walter Bivens, as the parents and

natural guardians of Kannon Lett, filed a Petition for Determination of NICA

Coverage Filed Under Protest (The Petition). The Petition identified Jennifer Payne, M.D., as the physician providing obstetrical services, and West

Florida Hos pital as the hospital where Kannon was born. On May 29, 2020,

NICA, Dr. Payne, and West Florida Hospital were served with copies of the

Petition by certified mail. Certified return receipts indicate that all three

were served.

On June 17, 2020, Petitioner s filed a Motion for Leave to File Amended

Petition for Determination of NICA Coverage Filed Under Protest (Amended

Petition), for the purpose of correcting the style of the Petition. The motion was granted June 19, 2020. On Ju ly 2, 2020, Dr. Payne and Wes t Florida

Hospital filed a Petition for Leave to Intervene, which was granted by Order

dated July 14, 2020.

On August 24, 2020, NICA filed a Response to Petition for Benefits,

advising that after review of the medical records and examination of the

child, it had determined that the injury suffered is not compensable under

the Plan. Accordingly, on August 25, 2020, an Order was issued directing the

parties to advise the undersigned no later than September 8, 2020, whether

there was a need for a hearing on c ompensability, and , if so, to provide dates

for conducting the hearing. In response , the Joint Motion for Summary Final

Order was filed. While the Joint Motion indicates that it is supported by two exhibits, i.e., the reports of Dr. Willis and Dr. Sheth, t he documents were not

attached to the Joint Motion. On September 9, 2020, NICA refiled the Joint

Motion with the exhibits attached. Also filed on September 9 was a Motion to

Determine Confidentiality of Document. A similar motion regarding the same

documen ts was granted by Order dated August 25, 2020 , an O rder that is

reiterated here as to the September 9, 2020 , confidentiality motion .

F INDINGS OF F ACT

1. Kannon was born on February 16, 2019, at West Florida Hospital. He

was a child born of a single gestat ion, and weighed nine pounds, seven

ounces, or 4,270 grams, at birth.

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

in maternal - fetal medicine. NICA submitted his expert report dated June 15,

2020, with its Response to Petition for Benefits. Dr. Willis concluded that

there was an apparent obstetrical event that resulted in oxygen deprivation to the brain during delivery and continuing into the immediate post - delivery

period, and that the oxygen deprivation resulted in brain injur y. However, Dr. Willis did not provide an opinion as to the severity of the injury.

3. Raj D. Sheth, M.D., conducted an examination of the child on

August 12, 2020, and reviewed pertinent medical records related to his birth

and subsequent treatment. Dr. S heth opined that the infant was born with

shoulder dystocia and left upper extremity weakness, which are likely to be

permanent. However, he is age - appropriate developmentally, and, given that

a birth - related neurological injury must result in a substantia l mental and

physical impairment to be eligible for benefits under the Plan, Dr. Sheth opined that Kannon’s injuries are not compensable.

4. The parties to this proceeding do not dispute the conclusions of

Drs. Willis and Sheth.

5. Based on the evidence pr esented in support of the Motion, Kannon is

not eligible for compensation under the Plan because the evidence does not indicate that he suffers substantial mental and physical impairments.

C ONCLUSIONS OF L AW

6. The Division of Administrative Hearings has jurisdiction over the

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

Fla. Stat.

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

providing compensation, irrespective of fault, for birth - related neurol ogical

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

§ 766.303(1), Fla. Stat.

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

dependents, or next of kin may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings.

§§ 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 to submit

relevant written information related to whether the alleged injury is a birth -

related neurological injury.

9. If NICA determined that the alleged injury is a birth - related

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

compensation to the claimant(s), 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

administ rative law judge in accordance with chapter 120, Florida Statutes.

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

10. 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 cord 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 o f labor, delivery, or resuscitation 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

disabilit y or death caused by genetic or congenital

abnormality.

11. 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 rende red permanently

and substantially mentally and physically impaired, then section 766.309(1)

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

neurological injury.

12. In this case, there is no dispute among the parties that there was an

apparent obstetrical event that resulted in oxygen deprivation resulting in a

brain injury. However, there is also no dispute that while there is an injury,

the child is not permanently and substantially mentally and physically

impaired. Accordingly, the i njury suffered by Kannon is not compensable

under the Plan.

C ONCLUSION

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

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

dismissed with prejudice.

D ONE A ND O RDER ED this 15th day of September 2020 , in Tallahassee,

Leon County, Florida.

L ISA S HEARER 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 Administrative Hearings

this 15th day of September , 2020 .

C OPIES F URNISHED :

(via certified mail)

Teresa Arnold - Simmons, Esquire

Morgan & Morgan PA

Suite 1100

76 South Laura Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7015 0640 0003 7646 3648)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association Suite 1

2360 Christophe r Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7646 3655)

Jeannette M. Andrews, Esquire

Andrews Crabtree Knox & Andrews, LLC

1558 - 1 Village Square Boulevard

Tallahassee, Florida 32309

(eServed)

( Certified Mail No. 70 15 0640 0003 7646 3662)

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 0003 7646 3679)

Mary C. Mayhew , Secretary

Health Quality A ssurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

( Certified Mail No. 7015 0640 0003 7646 3686)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law judge sha ll 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 p peal 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 § 766.3 11(1), Fla. Stat., and Fla.

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

(Fla. 1st DCA 1992).