20-002843N Ryan Bunch And Regina Oles On Behalf Of And As Parents And Natural Guardians Of Jetty Bunch, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 21, 2021.

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

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R YAN B UNCH A ND R EGINA O LES O N

B EHALF OF A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF J ETTY B UNCH , A

M INOR ,

Petitioners ,

Case No. 20 - 2843N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

T EDRA G ILMORE , M.D., A ND H ALIFAX

H OSPITAL M EDICAL C ENTER D / B / A H ALIFAX

H EALTH M EDICAL C ENTER ,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISM ISSAL

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 September 23, 2021.

S TATEMENT OF T HE C ASE

On June 18, 2020, Petitioners , Ryan Bunch and Regina Oles, on behalf of

and as parents and natural guardians of Jetty Bunch (Jetty), a minor, filed a

Petition for Benefits Pursuant to Florida Statute Section 766.301 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 identified Tedra Gilmore, M.D., as the physician who

provided obstetric services at the birth of Jetty on June 19, 2015, at H alifax

Medical Center, located in Volusia County, Florida.

DOAH served Dr. Gilmore, Halifax Medical Center, and NICA with a copy

of the Petition on June 25, 2020.

Between July 22, 2020, and July 12, 2021, the undersigned granted six

extensions of time f or NICA to respond to the Petition, because of difficulties

in securing medical records. On August 11, 2021, NICA filed a Response to

Petition for Benefits, asserting that Jetty did not sustain a Ñbirth - 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 August 13, 2021, 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 is needed, when the parties will be prepared to proceed

to a hearing, the issues in dispute, the estimate of time required for hearing,

and the choice of venue. On August 27, 2021, NICA filed a Response to Order

Dated August 13, 2021, whic h noted the position of NICA and Intervenors

was that this matter could be resolved by Motion for Summary Final Order,

and the position of Petitioners was that they disputed NICAÔs determination

and requested a hearing. The undersigned thereafter noticed t his matter for

a final hearing for October 29, 2021.

On September 23, 2021, 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 fort h in Florida

Administrative Code Rule 28 - 106.204(4), the undersigned issued an Order to

Show Cause on October 1, 2021, ordering Petitioner s to show cause, on or

before October 14, 20 2 1, in writing, why NICAÔs Motion should not be

granted and a summary fina l order be entered finding that PetitionerÔs claim

is not compensable. Petitioners have not responded to NICAÔs Motion or the

undersignedÔs Order to Show Cause.

F INDINGS OF F ACT

1. Jetty was born on June 19, 2015, at Halifax Health Medical Center,

d/b/a H alifax Medical Center, located in Volusia County, Florida.

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

medical records for Jetty. In a medical report dated August 6, 2021, Dr. Willis

summarized his findings and opined, in per tinent part, as follows:

In summary, spontaneous labor occurred at term

and ended with a spontaneous vaginal delivery.

Apgar scores were 5/9. Bag and mask ventilation

was given for about 4 - minutes due to respiratory

distress at birth. Oxygen was weaned wi th

spontaneous respirations. The baby was considered

stable and remained in the room with the mother.

Twenty minutes after birth the baby was noted to

be floppy and cyanotic. Laboratory evaluation

identified severe hypoglycemia and DIC. MRI

showed brain he morrhage with follow up MRI

showing evolving brain injury related to the

previously identified hemorrhage. Genetic

evaluation was negative.

The baby suffered brain injury as indicated by

MRI. Although the baby was initially depressed at

birth, stabilizati on occurred shortly after birth with

the baby remaining in the room with the mother

and not requiring nursery care. This would suggest

the baby did not have significant oxygen

deprivation at birth. The brain injury likely

occurred at some time around deliv ery, but it does

not appear the brain injury was caused by oxygen

deprivation or trauma during labor and delivery. I

do not have any opinions about issues related to the

hypoglycemia or DIC as a cause for the brain

injury.

3. NICA retained Michael S. Ducho wny, M.D. (Dr. Duchowny), a medical

expert specializing in pediatric neurology, to examine Jetty and to review his

medical records. Dr. Duchowny examined Jetty on June 7, 2021. In a medical

report dated August 8, 2021, Dr. Duchowny summarized his examinati on of

Jetty and opined, in pertinent part, as follows:

In summary , JettyÔs examination reveals

substantial cognitive and motor deficits consistent

with global developmental delay. Jetty is non -

fluent, non - ambulatory with spastic quadriparesis

and primitiv e reflex responses. He has

asymmetrically greater right - sided involvement, a

non - fixed right elbow contracture, and shortening

of his right leg. He lacks consistent visual fixation

and following, and a history suggestive of bilateral

optic atrophy. There i s a longstanding pharmaco -

resistant epilepsy. JettyÔs neurodevelopmental

delays have been present since infancy and he has

shown little developmental progress.

A review of JettyÔs medical records reveals that he

was born at Halifax Medical Center and was the

product of a 40 week gestation with a birth weight

of 3742 grams. The pregnancy was complicated by

maternal maintenance buprenorphine for

management of substance abuse. Rupture of

membranes occurred 4 hours prior to delivery and

revealed thickly meconi um - stained fluid.

Apgar scores were 5 and 9 at 1 and 5 minutes; cord

blood gases were therefore not ordered. Jetty was

placed with his mother in the newborn nursery but

suddenly became cyanotic and ashen, received

supplemental blow - by oxygen, and was tran sferred

to the NICU. An Accucheck was unrecordable and

serum glucose determination was recorded as 1.

Arterial blood gases revealed respiratory acidosis

with a pH of 7.24 and base excess of - 1.8.

Laboratory examination revealed a leukocytosis

(WBC=36.3) w ith elevated mononuclear cells and

bandemia. Jetty was subsequently transferred to

Shands Jacksonville where he evidenced an

elevated CRP, a PDA, acute adrenal insufficiency,

hematuria, acute renal failure and DIC with

thrombocytopenia and abnormal clottin g

parameters. MR imaging performed on July 7 th

revealed multifocal diffusion - weighted

abnormalities, ventriculomegaly and

periventricular signal abnormality; the report also

noted intracranial hemorrhage. Subsequent MR

imaging on July 20 th revealed the dev elopment of

multi - cystic white matter lesions, PVL and further

ventricular enlargement.

The clinical and imaging findings and brain injury

are most likely caused by the fetal inflammatory

response syndrome, and did not result from either

mechanical injury or oxygen deprivation in the

course of labor or delivery. The hemorrhage

reported on brain imaging did not contribute to the

brain injury. I am therefore not recommending that

Jetty be considered for inclusion in the NICA

program.

4. 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. Willis that it is unlikely

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

Dr. WillisÔs opinion is credited. There hav e been no expert opinions filed that

are contrary to Dr. DuchownyÔs opinion that Jetty should not be considered

for inclusion in the NICA Plan . Dr. DuchownyÔs opinion is credited.

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

Ord er to Show Cause.

C ONCLUSIONS OF L AW

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

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

7. The Legislature established the Plan 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.

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

dependents, and next of kin may seek compensatio n 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 the Plan, has Ñ45 days

from the date of service of a complete claim . . . in which to file a response to

the peti tion 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.

9. If NICA determines that the injury alleged in a claim is a compensable

birth - related neurologi cal injury, it may award compensation to the claimant,

provided that the award is approved by the administrative law judge to

whom the claim has been assigned. § 766.305(7), Fla. Stat. If, on the other

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

must be resolved by the assigned administrative law judge in accordance

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

and 766.31, Fla. Stat.

10. In discharging this responsibility, the administrative law j udge must

make the following determination based upon the available evidence:

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

neurological 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 permanently and

substantially mentally and physically impaired, a

rebuttable presumption shall arise that the injury

is a bi rth - 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 certi fied

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. An award may be sustained only if the admini strative

law judge concludes that the Ñinfant 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.

11. Section 766.302(2) defines the term Ñbirth - rel ated neurological injuryÒ

as follows:

ÑBirth - related neurological injuryÒ 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 le ast 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.

12. 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 perman ent and substantial mental impairment and a

permanent and substantial physical impairment, inasmuch as both are

required to establish compensability. Fla. Birth - Related Neurological Injury

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

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

refute, established that Jetty did not suffer a birth - related neurological

injury. Therefore, Jetty 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 Ryan Bunch and Regina Oles, on behalf of and as

parents and natural guardians of Jetty Bunch, is dismissed with prejudice.

The final hearing scheduled for October 29, 2021, is cancel led.

D ONE A ND O RDERED this 2 1s t day of October, 2021, in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

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 2 1s t day of October, 2021 .

C OPIES F URNISHED :

(via certified mail)

Michael R. D'Lugo, Esquire Simone Marstiller , Secretary

Wicker, Smith, O'Hara, McCoy, Ford, P.A. Agency for Health Care Administration

Post Office Box 2753 2727 Mahan Drive, Mail Stop 1

Orlando, Florida 32802 Tallahassee, Florida 32308

(Certified No. 7021 1970 0 000 4860 8885 ) (Certified No. 7021 1970 0000 4860 9011 )

Ryan Bunch T homas M. Hoeler, Esquire

#7 Agency for Health Care Administration

480 Reed Canal Road 2727 Mahan Drive, Mail Stop 3

South Daytona, Florida 32119 Tallahassee, Florida 32308

(Certified No. 7021 1970 0000 4860 8892 ) (Certified No. 7021 1970 0000 4860 9028 )

Kim Kellum, Esquire Amie Rice, Investigation Manager

Agency for Health Care Administration Consumer Services Unit

2727 Mahan Drive, Mail Stop 3 Department of Health

Tallahassee, Florida 32308 4052 Bald Cypress Way, Bin C - 75

(Certified No. 7021 1970 0000 4860 9042 ) Tallahassee, Florida 32399 - 3275

(Certified No. 7021 1970 0000 4860 9059 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological Tana D. Storey, Esquire

Injury Compensation Association Rutledge Ecenia, P.A.

Post Office Box 14567 Suite 202

Tallahassee, Florida 32317 119 South Monroe Street

(Certified No. 7021 1970 0000 4860 9035 ) Tallahassee, Florida 32301

(Certified No. 7021 1970 0000 4860 8878 )

Regina Oles

Unit 1316 Andrea L. Dieder ich, Esquire

6255 South Will iamson Boulevard Marshall, Dennehey, Warner,

Port Orange, Florida 32128 Coleman & Goggin

(Certified No. 7021 1970 0000 4860 8854 ) Suite 550

315 East Robinson Street

Orlando, Florida 32801

(Certified No. 7021 1970 0000 4860 8861 )

N OTICE OF 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 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 § 76 6.311(1), Fla. Stat., and Fla.

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

(Fla. 1st DCA 1992).