20-002379N Brooke Bailey And Robert Howe, On Behalf Of And As Parents And Natural Guardians Of Elaina Z. Howe, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 23, 2021.

Summary: NICA's unopposed motion for summary final order is granted where infant did not sustain a birth-related injury.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B ROOKE B AILEY A ND R OBERT H OWE , O N

B EHALF OF A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF E LAINA Z. H OWE ,

A M INOR ,

Petitioners ,

vs. Case No. 20 - 2379N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

S T . L UKE ' S - S T . V INCENT ' S H EALTHCARE ,

I NC . D / B / A V INCENT ' S M EDICAL C ENTER -

S OUTHSIDE A ND N KEMDILIM N WOSA , M.D.,

Intervenors .

/

S UM MARY F INAL O RDER O F D ISMISSAL

This cause came on for consideration upon the Motion for Summary Final

Order filed by Respondent, Florida Birth - Related Neurological Injury

Compensation Association (NICA), on July 29, 2020 .

S TATEMENT OF T HE C ASE

On May 20, 2 020 , Petitioner s Brooke Bailey and Robert Howe, on behalf

of and as parent s and natural guardians of Elaina Z. Howe (Elaina) , a minor,

filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et

seq. (Petition) with the Division of Adminis trative Hearings (DOAH ) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

The Petition identified Nkemdilim Nwosa, M.D., as the physician who

provided obstetric services at the birth of El aina on July 23, 2018 , at

St. VincentÔs Hospital, located in Duval County , Florida.

DOAH served Nkemdilim Nwosa, M.D., St. VincentÔs Hospital, and NICA

with a copy of the Petition on May 29, 2020 .

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

asserting that Elaina did not sustain a Ñ birth - related neurological injury Ò as

that term is defined in section 766.302(2), Florida Statutes, and requested

that a hearing be scheduled to determine compensability. On June 30, 2020,

the undersigned entered an Order that required the parties to confer and

advise concerning the need for a hearing, if any, and if a hearing wa s needed,

when the parties would be prepared to proceed to a hearing, the issues in

dispute, the estimate of time required for he aring, and the choice of venue.

On July 9, 2020, the parties filed a Joint Response to June 30 Order,

requesting an additional 10 - day extension to respond to the June 30, 2020,

Order. On July 10, 2020, the undersigned entered an Order granting the

requeste d ten - day extension. On July 17, 2020, NICA filed a Response to

Order of June 30, 2020, noting that Petitioners had not yet retained counsel,

but that NICA had spoken with PetitionersÔ potential counsel, and further

noting that NICA intended to file a moti on for summary final order and

requesting that the undersigned not schedule this case for hearing. On

July 20, 2020, the undersigned entered another Order, providing the parties

an additional 30 days to respond to the June 30, 2020, Order. On July 31,

202 0, counsel appeared on behalf of Petitioners.

On July 29, 2020, NICA filed its Motion for Partial Summary Final Order

(Motion). Having received no response from Petitioners to the Motion within

the seven - day time period for a response set forth in Florida Administrative

Code Rule 28 - 106.204(4), the undersigned issued an Order to Show Cause on

August 7, 2020, ordering Petitioner to show cause, on or before August 19,

20 20 , in writing, why NICAÔs Motion should not be granted and a summary

final order be ente red finding that PetitionerÔs claim is not compensable. On

August 10, 2020, Intervenors filed a Request for Additional Time. And, on

August 20, 2020, Petitioners, who at this point were represented by counsel,

filed a Motion for Extension of Time to Respon d to RespondentÔs Motion for

Summary Final Order, requesting until November 20, 2020, to respond to the

Motion. On August 20, 2020, the undersigned entered an Order on Pending

Pleadings that, inter alia , allowed the parties to respond to the Motion no

late r than November 20, 2020.

On November 20, 2020, Petitioners filed a Response to RespondentÔs

Motion for Summary Order and Motion for Extension of Time, which

requested an additional 60 days for NICAÔs expert to consider fetal heart

tracing, and included, as an exhibit, such fetal heart tracing. On December 8,

2020, the undersigned entered an Order Granting Extension of Time for

Petitioner to Respond to Motion for Summary Final Order, ordering that

ÑPetitioner [sic] shall file its complete response to the M otion for Summary

Final Order no later than January 19, 2021.Ò On December 21, 2020, NICA

filed a Supplemental Affidavit of Donald C. Willis, M.D., which offered an

opinion after reviewing the additional fetal heart tracing records submitted

by Petitioner.

On February 5, 2021, the undersigned entered a Second Order to Show

Cause, noting that Petitioners had not filed a response to the Motion, and

that the Motion had been pending for over six months. The Second Order to

Show Cause ordered Petitioners to sho w cause, in writing, why the Motion

should not be granted and a summary final order be entered, on or before

February 12, 2021. Petitioners have not responded to NICAÔs Motion or the

undersignedÔs Second Order to Show Cause.

F INDINGS OF F ACT

1 . Elaina was born on July 23, 2018 , at St. VincentÔs Hospital , located in

Duval County , Florida.

2. Donald Willis, M.D. (Dr. Willis) , was requested by NICA to review the

medical records for Elaina . In a medical report dated August 13 , 2020,

Dr. Willis summarized his findings and opined , in pertinent part , as follows:

In summary, pregnancy was essentially

uncomplicated. Spontaneous vaginal birth resulted

in a healthy newborn with Apgar scores of 8/9. The

newborn hospital course was uncomplicated. MRI

at about one yea r of age showed cerebral volume

loss, consistent with prior brain injury. The brain

injury was apparently not due to birth related

oxygen deprivation or trauma.

As such, it is my opinion that there was no

apparent obstetrical event that resulted in oxygen

deprivation and or mechanical trauma to the brain

or spinal cord during labor, delivery or in the

immediate post - delivery period.

3. NICA retained Raj D. Sheth , M.D. (Dr. Sheth) , a medical expert

specializing in pediatric neurology, to examine Elaina and to review her

medical records. Dr. Sheth examined Elaina on June 17, 2020. In a medical

report dated June 17, 2020, Dr. Sheth summarized his examination of Elaina

and opined , in pertinent part , as follows:

1. Elaina Howe does suffer from substantial

phys ical impairment and substantial mental

impairment as manifest by delays in gross motor,

and fine motor, language and personal social skills.

2. Elaina Howe mental and physical impairments

are likely to be permanent although there is likely

to be some impr ovement with time.

3. The mental and physical impairments are not

consistent with an injury to the brain or spinal cord

acquired due to oxygen deprivation or mechanical

injury occurring during labor and delivery or

immediate post delivery period.

4. The permanent and substantial impairments

from the records provided and this evaluation do

not appear to have occurred during labor, delivery

or the immediate post - delivery period.

4. NICA filed a Supplemental Affidavit of Dr. Willis on December 21,

2020, in which he offered an opinion on the fetal heart tracing records

submitted by Petitioners. Dr. Willis opined as follows:

The FHR tracing during labor was reassuring (no

distress), consistent with my previous opinion,

dated 6/17/20, that there was no apparen t

obstetrical event that resulted in oxygen

deprivation and or mechanical trauma to the brain

or spinal cord during labor, delivery or in the

immediate post delivery period.

The Opinions se[t] forth in my Affidavit executed

July 21, 2020 remain the same a nd are not

modified by my review of the additional medical

records as indicated herein.

5. A review of the file in this case reveals that there have been no expert

opinions filed that are contrary to the opinion of Dr. W illis that it is unlikely

that any significant oxygen deprivation occurred prior to the birth of Elaina.

Dr . WillisÔs opinion is credited. There are no expert opinions filed that are

contrary to Dr. ShethÔs opinion that Elaina should not be considered for

inclusion in the NICA program. Dr. ShethÔs opinion is credited.

6. Petitioners have failed to respond to the Motion or the undersignedÔs

Second Order to Show Cause.

C ONCLUSIONS OF L AW

7. DOAH has jurisdiction over the parties to and the subjec t matter of

these proceedings. §§ 766.301 - 766.3 16, Fla. Stat.

8. The Legislature established the Plan Ñ for the purpose of providing

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

claims Ò relating to births occurrin g on or after January 1, 1989. § 766.303(1),

Fla. Stat.

9. 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. NICA, which administers t he Plan, has Ñ 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.Ò £ 766.305(4 ),

Fla. Stat.

10. If NICA determines 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 administrative law judge to

whom the claim ha s been assig ned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claim, as it has in the instant case, the dispute

must be resolved by the assigned administrative law judge in accordance

with the provisions of chapter 120, Florida Statute s. §§ 766.304, 766.309,

and 766.31, Fla. Stat.

11. In discharging this responsibility, the administrative law judge must

make the following determination based upon the available evidence:

(a) Whether the injury claimed is a birt h - related

neurological i njury. 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 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).

(b) Whether obstetrical services were delivered by a

participating 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 resuscitation in the imm ediate

postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the administrative

law judge concludes that the Ñ infant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth. Ò § 766.31(1), Fla. Stat.

12. Section 766.302(2) defines t he term Ñ birth - related neurological injury Ò

a s follows:

Ñ Birth - related neurological injury Ò 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

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 the infant permanently and substantially

mentally and physically impaired.

13. To be compensable under the Plan, there must have been an

obstetrical event which resulted in loss of oxygen to the babyÔs brain during

labor, delivery, or resuscitation in the immediate post - delivery period

resulting in a permanent and substantial mental impairment and a

permanent and substantial physical impairment, inasmuch as both are

required to establish compensab ility. Fla. Birth - Related Neurological Injury

Comp. AssÔn v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

14. The evidence, which Petitioners have not refuted or attempted to

refute, established that Elaina did not suffer a birth - related neurologi cal

injury. Therefore, Elaina 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:

The Petition filed by Brooke Bailey and Robert Howe, on behalf of and as

parents and nat ural guardians of Elaina Z. Howe , is dismissed with

prejudice.

D ONE A ND O RDERED this 23rd day of February, 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Shevaun L. Harris , Acting Secretary

Consumer Services Unit Health Quality Assurance

Department of Health Agency for Health Care Ad ministration

4 052 Bald Cypress Way, Bin C - 75 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32399 - 3275 Tallahassee, Florida 32308

(Certified No. 7020 1290 0001 6309 8921) (Certified No. 7020 1290 0001 6309 8976)

Brooke Rose Bailey Kenney Shipley, Executive Director

3650 Stanley Street Florida Birth - Related Neurological

Jacksonville, Florida 32207 Injury Compensation Association

(Certified No. 7020 1290 0001 6309 8938) Suite 1

2360 Christopher Place

Tana D. Storey, Esquire Tallahas see, Florida 32308

Rutledge Ecenia, P.A. (Certified No. 7020 1290 0001 6309 8983)

Suite 202

119 South Monroe Street David W. Black, Esquire

Tallahassee, Florida 32301 Frank, Weinberg & Black, P.L.

(Certified No. 7020 1290 0001 6309 8945) 7805 Southwest 6th Court

Plantation, Florida 33324

Ronald S. Gilbert, Esquire (Certified No. 7020 1290 0001 6309 8990)

Colling Gilbert Wright & Carter, LLC

Suite 830 Megan R. Heiden, Esquire

801 North Orange Avenue Smith Hulsey & Busey

Orlando, Florida 32801 Suite 3300

(Certified No. 7020 1290 0001 6309 8952) One Independent Drive

Jacksonville, Florida 32202

Michael H. Harmon, Esquire (Certified No. 7020 1290 0001 6309 9003)

Smith, Hulsey & Busey

Suite 3300

One Independent Drive

Jacksonville, Florida 32202

(Certified No. 7020 1290 0001 6309 8969)

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 pursua nt 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 Administ rative

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).