20-003385N Melissa Prevatte And Derek Norsworthy, Individually And As Parents And Natural Guardians Of, Gracen Norsworthy, Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, March 15, 2021.

Summary: The child did not sustain a ?birth-related neurological injury? as defined in section 766.302(2). Therefore, the child is not eligible for benefits under the NICA Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ELISSA P REVATTE A ND D EREK

N ORSWORTHY , I NDIVIDUALLY A ND A S

P ARENTS A ND N ATURAL G UARDIANS OF ,

G RACEN N ORSWORTHY , M INOR C HILD ,

Petitioners ,

vs. Case No. 20 - 33 85N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSAT ION A SSOCIATION ,

Respondent,

and

G ALENCARE , I NC ., D/B/A B RANDON

R EGIONAL H OSPITAL ; A ND M AYA

K AMATH , M.D., A ND W OMEN ' S C ARE

F LORIDA , L.L.C.,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came for consideration on the Unopposed M otion for Final

Summary Order filed by Respondent, Florida Birth - Related Neurological

Injury Compensation Association ( " NICA " ), on March 8, 2021.

S TATEMENT OF T HE C ASE

On July 14, 2020, Melissa Prevatte a nd Derek Norsworthy, i ndividually

a nd a s Parents a nd n atural g uardians o f Gracen Norsworthy ( " Gracen " ) , a

m inor c hild , filed a Petition for Benefits Filed Pursuant to Florida Statute

Section 766.301 et seq (the " Petition " ) , with the Division of Administrative

Hearings ( " DOAH " ) for a determination of compensability under the Florida

Birth - Related Neurological Injury Compensation Plan (the " Plan " ).

The Petition identified Maya Kamath, M.D., as the physician who

pr ovided obstetrical services at Gracen ' s birth on June 26, 2019, at

Galencare, Inc., d / b / a Brandon Regional Hospital ( " Brandon Hospital " ), in

Brandon, Florida.

DOAH served Dr. Kamath wi th a copy of the Petition on August 3, 2020,

and served Brandon Hospit al that same date. DOAH also served NICA with a

copy of the Petition on August 3, 2020.

Brandon Hospital mo ved to intervene in this matter on August 11, 2020,

which was granted. Dr. Kamath and Women ' s Care Florida, L.L.C., also

moved to intervene on Au gust 21, 2020, which was also granted .

On October 13 , 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 evidentiary hearing to determine

compensa bility.

On March 8, 2021, NICA filed a n Unopposed Motion for Final Summary

Order requesting the Administrative Law Judge ( " ALJ " ) to enter a summary

final order finding the claim not compensable under the NICA statute

because Gracen did not suffer a " bir th - related neurological injury " as defined

in section 766.302(2) , Florida Statues .

F INDINGS OF F ACT

1. Gracen was born on June 26, 2019, at Brandon Hospital located in

Brandon , Florida.

2. According to the Petition, Maya Kamath, M.D., provided obstetrica l

services at Gracen ' s birth. 1

3. Upon receiving the Petition, NICA retained 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

rev iew Gracen ' s medical records and condition. NICA sought to determine

whether Gracen suffered a " birth - related neurological injury " as defined in

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

whether Gracen experienced an in jury 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 Gracen permanently and subs tantially

mentally and physically impaired.

4. Dr. Willis reviewed Gracen ' s medical records and noted that:

The mother was admitted for induction of labor at

39 weeks gestational age.

* * *

Cesarean section was done for a non - reassuring

FHR pattern. A true knot was noted in the

umbilical cord at birth.

* * *

The delivery operative note describes the baby as

pink and vigorous at birth. Neonatal team noted

poor respiratory effort once placed in the warmer.

È Despite resuscitative measures, the bab y

remained floppy with delayed perfusion.

* * *

1 No evidence was presented establish ing that Dr. Kamath w as a " participating physician "

under the NICA statute at the time Gracen was born. See § § 76 6.302(7) and 766.314(4) , Fla.

Stat. However, this finding is not pertinent to this Final Order as Gracen did not suffer a

compensable injury under the Plan.

The baby was taken to the NICU. È Chest X - ray

suggested transient tachypnea of the newborn

(TTN). Hypoxic ischemic encephalopathy (HIE) was

suspected and the baby was transferred to [Tampa

General Hospital ] for possible cooling protocol.

* * *

EEG showed depressed cerebral activity while on

cooling protocol, but no seizure activity was noted.

Neurologic exam at time of newborn hospital

discharge was considered normal.

* * *

In summary, labor was ind uced at term. A non -

reassuring FHR pattern during labor required

Caesarean delivery. È Cooling protocol was

initiated for suspected HIE. No seizure activity was

noted, either clinically or by EEG. Head ultrasound

was normal. MRI on DOL 7 was normal. There was

some degree of oxygen deprivation at birth È

However, MRI on DOL 7 did not identify any brain

injury.

5. Dr. Willis concluded that, " F ortunately, the oxygen deprivation did not

result in any identifiable brain injury. "

6 . Dr. Bella - Espinosa agreed wit h Dr. Willis that Gracen did not suffer

injuries that qualify for inclusion in the NICA Plan. Dr. Bella - Espinosa

reviewed Gracen ' s medical records, as well as conducted an independent

medical exam ination of Gracen on October 9, 2020, when Gracen was

15 mon ths old. Following the examination, Dr. Bella - Espinosa reported that:

Gracen was quite alert and interactive. He had

great attention. È The tone of arms and legs was

normal. È [H]e was able to walk on his own power

without difficulties. È He reached for ob jects

without any tremors or dysmetria.

Thereafter, Dr. Bella - Espinosa concluded that Gracen ' s prognosis is

" excellent, " and that his " estimated life expectancy is normal. " Dr. Bella -

Espinosa then opined :

In reviewing all the available documents, there i s

no evidence of permanent and substantial mental

and physical impairments of the brain or spinal

cord that may have been due to oxygen deprivation

or mechanical injury that may have occurred

during labor, delivery or the immediate post -

delivery period. È Considering the clinical

presentation, I do feel that there is no evidence to

recommend Gracen is included in the NICA

program .

7 . A review of the documents in the record reveals no contrary evidence to

dispute the findings and opinions of Dr. Willis and Dr. Bella - Espinosa . Their

opinions are credible and persuasive.

C ONCLUSIONS OF L AW

8. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding pursuant to sections 766.301

through 766.316. The undersi gned, as an Administrative Law Judge ("ALJ") ,

has " exclusive jurisdiction to determine whether a claim filed under [NICA] is

compensable. " §§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stat.

9. The Florida Legislature established the Plan " for the purp ose of

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

injury claims. " § 766.303(1), Fla. Stat.

10. To seek compensation under the Plan, a legal representative on behalf

of an injured infant files a claim with DOAH. §§ 766.302 (3) and 766.305(1),

Fla. Stat. NICA, which administers the Plan, then has " 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. " § 766.305(4), Fla. Stat.

11. 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 app roved by the ALJ to whom the claim has been

assigned. § 766.305(7), Fla. Stat.

12. In this matter, however, NICA determined that Petitioners ' claim is

not compensable under the Plan. Therefore, NICA filed the Unopposed

Motion for Final Summary Order, req uesting a finding that Gracen is not

eligible for NICA Plan benefits.

13. In reviewing the compensability of a claim, section 766.309(1) directs

the ALJ to make the following determinations based upon " all available

evidence " :

(a) Whether the injury claim ed 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 midwif e 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.

14. The te rm " birth - related neurological injury " is defined in section

766.302(2) as:

injury 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 cour se of labor, delivery, or

resuscitation in the immediate postdelivery period

in a hospital, which renders the infant permanently

and substantially mentally and physically

impaired.

15. " The [NICA] Statute is written in the conjunctive and can only be

inte rpreted to require permanent and substantial impairment that has both

physical and mental elements. " Fla. Birth - Related Neurological Injury Comp.

Ass ' n v. Fla. Div. of Admin. Hearings , 686 So. 2d 1349, 1356 (Fla. 1997).

1 6 . In reviewing the injury in this matter, the preponderance of the

evidence does not e stablish that Gracen sustain ed a " birth - related

neurological injury " as defined in section 766.302(2). Dr. Willis specifically

noted that, while there " was some degree of oxygen deprivation at birth, "

Gra cen ' s " MRI on DOL 7 did not identify any brain injury. " Similarly,

Dr. Bella - Espinosa found that " there is no evidence of permanent and

substantial mental and physical impairments of the brain or spinal cord that

may have been due to oxygen deprivation or mechanical injury that may have

occurred during labor, delivery or the immediate post - delivery period . "

1 7 . Accordingly , based on all the available evidence in the record, the

undersigned determines that Gracen has not suffered a " birth - related

neurolog ical injury " and is not eligible for NICA benefits.

D ISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that the Petition is dismissed, with prejudice.

D ONE A ND O RDERED this 15th day of March, 2021 , in Tallahassee, Leon

County, Florida.

S

J. B RUCE C ULPEPPER

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 Hea rings

this 15th day of March , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstill er , Secretary

Consumer Services Unit Agency for Health Care Administration

Department of Health 2727 Mahan Drive, Mail Stop 1

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

Tallahassee, Florida 32399 - 3275 (Certified No . 7019 1640 0000 2306 3002 )

(Certified No.7019 1640 000 2306 3033 )

Kenney Shipley, Executive Director

Armando T. Lauritano, Esquire Florida Birth - Related Neurological

Morgan & Morgan, P.A. Injury Compensation Association

7th Floor 2360 Christopher Place , Suite 1

201 North Franklin Street Tallahassee, Florida 32308

Tampa, Florida 33602 (Certified No . 7019 1640 0000 2306 3002 )

(Certified No . 7019 1640 000 2306 3026 )

Mindy McLaughlin, Esquire

Carissa Brumby, Esquire Beytin McLaughlin Et al.

Beytin, McLaughlin, Mclaughlin, O ' Hara, 1706 East Eleventh Avenue

Bocchino & Bolin, P.A. Tampa, Florida 33605

1706 East Ele venth Avenue (Certified No . 7020 1290 0001 6309 9768 )

Tampa, Florida 33605

(Certified No . 7020 1290 0001 6309 9911 ) Elizabeth A. Myers, Esquire

Smith Bigman Brock, P.A.

Mark R. Messerschmidt, Esquire 444 Seabreeze Boulevard

La Cava Jacobson & Goodis, PA Daytona Beach, Florida 32118

501 East Kennedy Boulevard , Suite 1250 (Certified No . 7020 1290 0001 6309 9928 )

Tampa, Florida 33602

(Certified No . 7019 1604 0000 2306 3019 )

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 t o

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 ppeal with the a ge ncy 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).