20-002518N Amber Register And Ethan Register, On Behalf Of And As Parents And Natural Parents Of Willow Register, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 27, 2020.

Summary: Based upon the unrebutted evidence of record, Petitioner did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

(1) The administrative law judge shall make the

following determinations based upon all available

evidence:

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

neurological injury . . .

* * *

(2) If the administrative law judge determine s that

the injury alleged is not a birth - related neurological

injury . . ., she or he shall enter an order . . . .

(emphasis added).

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

766.302(2) as:

(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 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 men tally and physically impaired.

This definition shall apply to live births only and s hall not include disability or death caused by

gene tic or congenital abnormality. (emphasis

added).

F INDINGS OF F ACT

1. On May 9, 2020, Petitioners filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. for benefits pursuant to sections

766.301 - 766.316 , otherwise known as the Plan.

2. The baby was born on November 16, 2019, at Shands Lake Shore

Regional Medical Center (Hospital). The circumstances of the labor, delivery,

and birth of the minor child are reflected in the m edical records provided by

NICA in response to the Petition.

3. In the instant case, NICA has retained Donald C. Willis, M.D. , as its

medical expert specializi ng in maternal - fetal medicine. Dr. Willis’ s medical

report was attach ed to the M otion as Ex hibit 1. Upon examination of the

pertinent medical records, Dr. Willis opined:

Based on available medical records, there was an

apparent obstetrical event that may have resulted in some possible degree of oxygen depriva tion

during the birth process. Howeve r, any oxygen deprivation that may have occurred did not result

in identifiable brain injury. It is likely the subdural and subgaleal hematomas resulted from failed vacuum application and not related to brain injury.

4. Additionally, NICA retained Ra j Sheth, M.D. , as its medical expert

specia lizing in Pediatric Neurology. Dr. Sheth’s medical report was attach ed

to the M otion as Exhibit 2. Upon examination of the pertinent medical

records and performance of an independent medical examination, Dr. Sheth

opined :

Willows’ neurological examination reveals mild

gross motor delays for expected age. There was no

evidence of genera lized hypotonia or hypertonia.

The remainder of her neurological exami nation was

normal for age. She was thought to have moderate H IE in the immediate neonatal course. Her head

circumference is growing appropriately. PT and OT

evalu ation expected good prognosis. Currently,

Willow is making constant ongoing progress,

although the family notes this is slower th an for

her 4 - year - old brot her. The neurologic examination

and developmental examination indicate that she

has mild developmental delays and subtle hand preferences where she uses both hands but tends to prefer her ri ght hand more than the left. At this

point she does not demonstrat e significant m ental

or physical impairments. He r EEG post cooling was

normal. He r head ultra - sound was normal. Her

head MRI was normal and showed no evidence of

IE or hemorrhage.

5 . The medical reports of Dr. Willis and Dr. Sheth are the only evi dence of

record relating to the issue of whether the subject claim is compensable as

defined by the statute. The Petition, along with the unrebutted medical

reports of Dr. Willis and Dr. Sheth, establishes that there are no genuine

issues of material fact regarding the compensability of this claim.

C ONCLUSIONS OF L AW

6 . The Division of Administrative Hearings (DOAH) has jurisdiction over

the parties to and the subject matter of thes e proceedings. §§ 766.301 -

766.316, Fla. Stat.

7 . The Plan was establis hed by the Legislature “for the purpose of

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

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

§ 766.303(1), Fla. Stat.

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

dependents, and next of kin may seek compensation under the Plan by filing

a cla im for compensation with DOAH. §§ 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 the petition and to submit relevant written information relating to the issue of whether the injury is a birth - related

neurological injury.

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

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

compensation to the claimant, provided that the award is approved by the

assigned administrative law judge. § 766.305(7), Fla. Stat. However, i f NICA

disputes the claim, as it does in this case, the dispute must be resolved by the

assigned administrative law judge in accordance with chapter 120, Florida

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

10 . The first inquiry is whether the infant has sustained a birth - related

neurological injury as defined by section 766.302(2), which provides:

“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 o r, in the

case of amultiple 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, w hich

renders the infant permanently and substantially men tally and physically impaired . This definition

shall apply to live births only and shall not include disability or death caused by gen eticor congenital

abnormality. (emphasis added).

11 . If the administrative law judge determines that the infant meets the

statutory threshold for weight and has sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical injury, and that as a result of the

injury the infant was rendered perm anently and substantially mentally and

physically impaired, then section 766.309(1) provides that there is a rebuttable presumption that the injury is a birth - related neurological injury.

12 . In this case, the evidence does not support a finding that the injury is

a birt h - related neurological injury. This issue is dispositive w ith respect to

compensability. Based upon this evidence, Willow Register did not sustain a

birth - related neurological injury as defined in section 766.302(2), and is not

eligible for benefits under the Plan.

C ONCLUSION

Based upon the Findings of Fact and Conclusions of Law provided above,

Petitioners ’ claim is not compensable under the Plan, and the Petition is

dismissed with prejudice.

D ONE A ND O RDERED this 27 th day of October , 2020 , in Tallahassee, Leon

County, Florida.

W. D AVID W ATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax F iling (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27 th day of October , 2020 .

C OPIES F URNISHED :

(via certified mail)

Grant A. Kuvin, Esquire

Morgan & Morgan

Suite 1100

76 South Laura Street

Ja cksonville, Florida 32202

(eServed)

(Certified Mail No. 7019 2970 0000 6014 1973)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7019 2970 0000 6014 1980)

Karina Haycook, Esquire

Wicker, Smith, O'Hara, McCoy & Ford, P.A.

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7019 2970 0000 6014 1997)

Amie Rice, Investigation Manag er

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7019 2970 0000 6014 2000)

Shevaun L. Harris , Acting Secretary

Health Quality Assurance

Agency for Health Care Administratio n

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7019 2970 0000 6014 2031 )

Emad Ismael Atta, M.D.

4812 West Highway 90 Lake City, Florida 32055

(Certified Mail No. 7019 2970 0000 6014 2048 )

N OTICE OF 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 proc eedings 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).