20-002524N Adrian Garcia Rodriguez And Mildrey Sosa Macado, Individually, And As Parents And Natural Guardians Of Adrian David Garcia Sosa, Their Minor Son vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, December 3, 2020.

Summary: The child did not sustain a ?birth-related neurological injury? as defined in section 766.302(2) (The impairment did not occur in the labor, delivery, or immediate postdelivery period). The child is not eligible for benefits under the NICA Plan.

compensability under the Florida Birth - Related Neurological Injury

C ompensation Plan (the “Plan”).

The Petition identified Sarah Obican, M.D., and Pamela Kelly, C . N . M . , as

the medi cal professionals who provided obstetrical services at Adrian ’s birth

on January 23, 2017 , at Florida Sciences Center, Inc., d/b/a Tampa General

Hospital (“Tampa General”) in Tampa , Florida.

DOAH served Dr. Obican and Ms. Kelly with a copy of the Petitio n on

June 8, 2020 , and served Tampa General that same date. DOAH also served

NICA with a copy of the Petition on June 8, 2020.

The University of South Florida Board of Trustees mo ved to intervene in

this matter on June 11, 2020, which was granted. Tampa General also moved

to intervene on July 9, 2020, which was also granted.

On September 8 , 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 evident iary hearing to determine

compensability.

On September 29, 2020, NICA filed a Motion for Partial Summary Final

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

final order finding the claim not compensable under the NICA statute

bec ause Adrian did not suffer a “birth - related neurological injury” as defined

in section 766.302(2) , Florida Statu t es (2020) . On October 29, 2020,

Petitioners filed a Motion In Opposition to NICA’s Motion for Partial Summary Final Order.

F INDINGS OF F ACT

1. Adrian was born on January 23, 2017, at Tampa General located in

Tampa, Florida.

2. The Petition alleges that Sarah Obican, M.D., and Pamela Kelly,

C . N . M . , were the medical professionals who participated in Adrian’s birth. 1

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

board - certified obstetrician/gynecologist specializing in maternal - fetal

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

review Adrian’s medical records and condition. NICA sought to de termine

whether Adrian suffered a “birth - related neurological injury” as defined in

section 766.302(2). Specifically, NICA requested its medical consultants opine

whether Adrian experienced an injury to the brain or spinal cord caused by

oxygen deprivation or mechanical injury which occurred in the course of

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

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

4. Dr. Willis rev iewed Adrian’s medical records and noted, within a

reasonable degree of medical probability:

In summary, there was an abnormal FHR pattern

at time of repeat Cesarean section. The mother was

not in labor. Delivery was atraumatic and resuscitation described as uneventful. … Cyanosis

occurred when the baby was placed on the mother’s

abdomen after delivery. Newborn hospital course was complicated by multisystem organ failures. EEG was consistent with seizures.

There was no apparent oxygen deprivation and or mechanical trauma to the brain of [sic] spinal cord during labor or delivery. Due to the complexity of the newborn hospital course, I do not have an

opinion concerning any oxygen deprivation that

1 No evidence was presented to the ALJ establishing whether Dr. Obican or Ms. Kelly were

“part icipating physicians” under the Plan at the time Adrian was born. See §§ 766.3 02(7) and

766.314(4), Fla. Stat .

could have occurred during the immediate post -

delivery perio d.

5. Dr. Bella - Espinosa, on the other hand, did comment on whether

Adrian’s injuries occurred during the immediate post - delivery period.

Dr. Bella - Espinosa reviewed Adrian’s medical records, as well as conducted

an independent medical examination (“IME”) of Adrian on August 28, 2020.

Dr. Bella - Espinosa opined, within a reasonable degree of medical probability:

The [mother] underwent a cesarean section without

complication.

* * *

The infant was initially placed skin to skin and the

mother attempted to breastfeed during which the

infant turned cyanotic.

6 . During the IME, Dr. Bella - Espinosa observed that:

Adrian is a 3 - year 7 - month - old boy with a history of

fetal macrosomia, born to an insulin diabetic mother, who after having … minimal variability with late decelerations before delivery, at birth had

a normal APGAR score with no evidence of acidosis,

who in the immediate period however developed

recurrent hypoglycemia despite glucose supplementation. … [O]ver the past three years, he remains to have dru g - resistant daily seizures.

* * *

Adrian has … signs of severe intellectual disability, severe developmental language, and motor delays,

severe autistic behavior, as well as an abnormal

neurological examination … . His clinical presentation at this tim e is indicative of a severe developmental epileptic encephalopathy as could be seen in children due to multiple etiologies such as

acquired neonatal metabolic, vascular, ischemic,

inflammatory or infectious processes, as well as potential additional struct ural, genetic, or

chromosomal etiologies. … His epilepsy is severe.

7 . Dr. Bella - Espinosa concluded his report stating that “Adrian suffers

from substantial permanent mental impairment and substantial physical

impairment.” However, Dr. Bella - Espinosa expla ined that:

The impairments are not consistent with an injury

to the brain or spinal cord that may have occurred due to oxygen deprivation, or mechanical injury

occurring during labor, or the immediate post -

delivery period. … Adrian’s substantial physical

a nd mental impairment appears to have not

occurred during the immediate post - delivery

period.

8 . A review of the file reveals no evidence directly disputing the findings

and opinions of Dr. Willis and Dr. Bella - Espinosa that Adrian’s “impairments

are not c onsistent” with injuries that occurred in the course of labor, delivery,

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

2 Their

opinions are credible and persuasive.

9 . Based on the statements from Dr. Willis and Dr. Bella - Espinosa, N ICA

determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Partial Summary Final Order asserting that Adrian did not

suffered a “birth - related neurological injury” as defined by section 766.302(2).

10 . Petitioners su bmitted a motion opposing NICA’s Motion for Partial

Summary Final Order. Petitioners, however, do not disagree with NICA’s

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

Petitioners assert that the NICA statutes (section 766.3 01, et seq.) vio late the

Florida Constitution; t herefore, the undersigned does not have the authority

to determine whether Adrian should be included in the NICA Plan. It must

2 Petitioners, with their motion opposing NICA’s Motion for Partial Summary Final Order,

submitted affidavits from several medical professionals addressing the level of care Adrian

received from the treating medical staff. These opinions support a finding that Adrian

currently suffers from permanent injury to his brain, as well as experienced respiratory

distress following his birth. However, the a ffidavits do not substantiate the argument that

Adrian’s injuries actually occurred during Adrian’s birth, delivery, or in the immediate post -

delivery period. Accordingly, Dr. Willis ' s and Dr. Bella - Espinosa’s opinions are persuasive on

this issue.

be noted, however, that an ALJ is without authority to rule on the facial

constit utionality of a statute authorizing agency action. See Key Haven Assoc.

Enterprises, Inc. v. Bd. of Trs. of the Int. Imp. Trust Fund , 427 So. 2d 153, 157

(Fla. 1982); Communications Workers of Am., Local 3170 v. City of

Gainesville , 697 So. 2d 167, 170 (Fl a. 1st DCA 1997)(“The Administrative

Procedure Act does not purport to confer authority on administrative law judges or other executive branch officers to invalidate statutes on

constitutional or any other grounds.”) .

C ONCLUSIONS OF L AW

11 . The Division o f 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 dministrative Law Judge, has “exclusive

jurisdiction to determine whether a claim filed under [N ICA] is

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

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

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

injury claims.” § 766.303(1), Fl a. Stat.

13 . 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

o f service of a comp lete 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.

14 . If NICA determines that the injury alleg ed 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

assi gned. § 766.305(7), Fla. Stat.

15 . In this matter, however, NICA det ermined that Petitioner s ’ claim is

not compensable under the Plan. Therefore, NICA filed the Motion for Partial

Summary Final Order, requesting a finding th at Adrian is not eligible for

NICA Plan benefits.

16 . In reviewing the compensability of a claim, s ection 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

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 immediate

postdelivery period in a hospital; and

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

pursuant to s. 766.31.

17 . 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 gestation

.. . 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 per manently

and substantially mentally and physically

impaired.

18 . “ 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. Hearings , 686 So. 2d 1349, 1356 (Fla. 1997).

19 . In reviewing the injury in this matter, the preponderance of the

evidence does not establish that Adrian sustained a “birth - related

neurological injury” as de fined in section 766.302(2). Both Dr. Willis and

Dr. Bella - Espinosa noted Adrian’s grave injury. However, they credibly

opined that Adrian’s impairment did not occur during labor or delivery.

Dr. Bella - Espinosa further persuasively attested that Adrian’s i njury did not

happen during the immediate post - delivery period.

20 . Therefore, based on all the available evidence in the record, the

undersigned determines that Adrian has not suffered a “birth - related

neurological injury” and is not eligible for NICA ben efits.

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 3rd 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 Cler k of the

Division of Administrative Hearings

this 3rd day of December , 2020 .

C OPIES F URNISHED :

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Pl ace

Tallahassee, Florida 32308

(eServed)

(Certified No. 7020 1290 0001 6309 9294)

Bonnie Navin, Esquire

Rubenstein Law

Penthouse Suite

9130 South Dadeland Boulevard

Miami, Florida 33156

(Certif ied No. 7020 1290 0001 6309 9324 )

David W. Black, Esquire

F rank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certif ied No. 7020 1290 0001 6309 9317 )

James J. Evangelista, Esquire

Bush Ross, P.A.

1801 North Highland Avenue

Tampa, Florida 33602

(eServed)

(Certif ied No. 702 0 1290 0001 6309 9287 )

Robert Murphy, Esquire

Rubenstein Law

9130 South Dadeland Boulevard

Miami, Florida 33156

(eServed)

(Certif ied No. 7020 1290 0001 6309 9270 )

Andrew R. Hudson, Esquire

La Cava Jacobson & Goodis, P.A.

501 East Kennedy Boulevard

T ampa, Florida 33602

(eServed)

(Certified No. 7020 1290 0001 6309 9263 )

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 9300)

Shevaun L. Harris , Acting Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified No. 7020 1290 0001 6309 9256)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final or der 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 th e 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).