20-003387N Anna And Joshua Comeau, Individually And As Parents And Natural Guardians Of Adaline Comeau, Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, March 8, 2021.

Summary: Petitioners failed to prove a compensable birth-related neurological injury where child did not suffer brain injury causing permanent and substantial mental or physical impairment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A NNA A ND J OSHUA C OMEAU ,

I NDIVIDUALLY A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF A DALINE

C OMEAU , M INOR C HILD ,

Petitioners , Case No. 20 - 3387N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

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

R EGIONAL H OSPITAL ; M ARIAN A.

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

F LORIDA , LLC.,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came before the undersigned on Respondent Florida Birth -

Related Neurological Injury Compensation Association Ôs (ÑNICAÒ ) unopposed

Motion for Summary Final Order, filed on December 1, 2020 .

S TATEMENT OF T HE C ASE

W hether Adalin e Comeau (Ñ Adaline Ò) suffered a Ñbirth - related

neurological injury , Ò as defined by section 766.302(2), Fl orida Statutes, 1 for

which compensation should be awarded under the Florida Birth - Related

Neurological Injury Compensation Plan (ÑPlanÒ) .

1 All references to the Florida Statutes are to the 2018 vers ions, unless otherwise specified .

P RELIMINARY S TATEMENT

On July 6 , 2020, Anna and Joshua Comeau, Individually and a s Parents

a nd Natural Guardians of Adaline , filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. with the Florida Division of

A dministrative Hearings (ÑDOAHÒ). Petitioners argued that Adaline was

eligible for NICA benefits because she suffered a compensable birth - related

neurological injury.

The Petition named Marian A. Sampson , M.D., as the obstetrician who

delivered Adaline on November 22, 2018 , and Brandon R egional Hospital

(ÑHospitalÒ) as the H os pital where she was born. DOAH sent copies of the

Petition via Certified U.S. Mail to NICA , Dr. Sampson, and the Hospital on

August 3, 20 20 .

On August 18, 2020, the Hospital moved to intervene in this proceeding.

Pe titioners filed a response that agreed with the HospitalÔs intervention on

the issues of notice and whether it was participating in the Plan, but opposed

intervention as to compensability. Petitioners argued that the Hospital was

not an indispensable party because NICA could adequately represent its

interests in this proceeding. On August 19, 2020, the undersigned granted

the HospitalÔs motion based on binding case law. On August 21, 2020,

Dr. Sampson moved to intervene and the undersigned granted her motio n.

On September 3, 2020, the Hospital requested an opportunity to conduct

discovery, but the undersigned denied that request without prejudice to

refiling it once NICA had an opportunity to respond to the Petition and

determine its position as to compens ability, which may obviate the need for a

final hearing in this matter.

On October 20, 2020, NICA filed a Notice of Non - Compensability and

Request for Evidentiary Hearing on Compensability, arguing that its experts

reviewed the medical records, conducted an examination of Adaline, and

opined that the claim was not compensable. At a teleconference held on

October 22, 2020, Petitioners indicated that they agreed with NICAÔs

determination as to compensability; Intervenors requested an opportunity to

conduct limited discovery to confirm their position on that issue. In an Order

dated October 28, 2020, the undersigned authorized Intervenors to obtain a

complete set of AdalineÔs medical records, depose Petitioners about AdalineÔs

condition, and have their own ex perts conduct an independent medical

examination (ÑIMEÒ) of Adaline. The undersigned required the parties to file

a Joint Status Report on or before January 26, 2021.

On December 1, 2020, NICA filed a Motion for Partial Summary Final

Order arguing that th e claim was not compensable because, although there

was an oxygen deprivation event during labor, delivery, and the immediate

post - delivery period, it neither cause d Adaline to suffer brain injury n or

rendered her permanent ly and substantial ly physical ly a nd mental ly

impair ed . NICA supported its motion with affidavits and reports of two

medical experts . Petitioners did not contest NICAÔs motion. In an Order

dated December 2, 2020, the undersigned gave Intervenors until January 26,

2021, to either respond to NICAÔs motio n or file a Joint Status Report if they

intended not to oppose the motion.

Over the next two months, Intervenors deposed Petitioners and requested

additional medical records from other medical professionals. However, on

January 22, 2021, Int ervenors moved to compel Petitioners to answer

additional deposition questions as to AdalineÔs condition and requested more

time to obtain further medical records. The undersigned held a teleconference

on the motion on January 25, 2021. In an Order dated J anuary 26, 2021, the

undersigned gave Intervenors 30 days to obtain the medical records and

conduct an IME, denied the request to re - depose Petitioners, and required

Intervenors to file a Status Report on or before February 24, 2021.

On February 24, 2021 , Intervenors filed a Joint Status Report after

reviewing the additional medical records and confirmed that they, too, would

not contest NICAÔs motion for summary final order or request a final hearing.

F INDINGS OF F ACT

1. Petitioners are the parents and legal guardians of Adaline.

2. On November 22, 2018 , Ms. Comeau gave birth to Adaline , a single

gestation of 39 weeks, at the Hospital . Adaline was delivered by cesarean

section and weighed 3,883 grams .

3. Marian A. Sampson , M.D. , provided obstetric al ser vices and delivered

Adaline .

4. The undisputed record evidence consists of affidavits and reports of t wo

physicians Ð Donald Willis, M.D., a board - certified obstetrician, and Luis

Bello - Espinosa, M.D., a board - certified pediatric neurologist who conducted

an IME of Adaline .

5 . Dr. Willis reviewed the medical records and summarized his opinions

about Adaline Ôs delivery and the atte ndant complications in a report dated

October 12, 2020 .

6. Dr. Willis noted that Ms. ComeauÔs prenatal course was uncomplicated

and she was admitted to the Hospital at 39 weeks gestational labor. Although

AdalineÔs fetal heart rate (ÑFHRÒ) was appropriate upon admission, fetal

tachycardia and variable decelerations occurred about one hour prior to

delivery. Dr. Sampson applied a vacuu m extractor to assist delivery due to

the non - reassuring FHR pattern, but ultimately performed a cesarean section

due to arrest of decent.

7. At birth, Adaline was depressed, floppy, and cyanotic. The Hospital

administered bag and mask ventilation and intu bation was required.

AdalineÔs trachea had copious amounts of meconium consistent with

meconium aspiration syndrome (ÑMASÒ). Her APGAR scores were three at

one minute, five at five minutes, and seven at ten minutes.

8 . Adaline was transferred to the NICU w ith respiratory distress and was

intubated for seven days. During that period, continuous EEG showed no

seizure activity. A head ultrasound on day one was normal and an MRI on

day seven showed no ischemia or hemorrhage .

9. Based on the medical records, Dr . Willis opined to a reasonable degree

of medical probability that an obstetrical event resulting in oxygen

deprivation to the brain occurred during the birth, but fortunately it did not

cause any identifiable brain injury .

10. Dr. Bello - Espinosa reviewed the medical records, conducted an IME on

Adaline, and summarized his opinions in a report dated October 9 , 2020 , as

to whether Adaline suffers from permanent and substantial mental and

physical impairment caused by an oxygen deprivation event .

1 1 . After be ing diagnosed with moderate neonatal hypoxic - ischemic

encephalopathy, Adaline underwent therapeutic hypothermal treatment at

All ChildrenÔs Hospital for 72 hours. During her course at the NICU, there

were no electro - clinical or electrographic seizures, and her MRI was normal.

12. Dr. Bello - Espinosa conducted an IME on October 9, 2020. AdalineÔs

neurological examination was normal except for mild left - sided facial

asymmetric smile, which Dr. Bello - Espinosa believed was a congenital

condition that was not ca used by brain or nerve damage. Adaline exhibited

neither indications of any residual encephalopathy or brain dysfunction nor

upper or lower motor signs. Her development was normal for her age.

13. Based on the medical records and his IME, Dr. Bello - Espino sa opined

to a reasonable degree of medical probability that Adaline does not suffer

from permanent and substantial mental and physical impairment.

C ONCLUSIONS OF L AW

14. DOAH has jurisdiction over the parties and exclusive jurisdiction over

the subject ma tter of this case. § 766.304, Fla. Stat .

15. The Legislature established the Plan Ñfor the purpose of providing

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

claimsÒ occurring on or after January 1, 1989. £ 766.303(1), Fla. Sta t.

16. An injured infant, his or her 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 administ ers the Plan, has 45 days from

the date that a complete claim is served to file a response and to submit

relevant written information as to whether the injury is a birth - related

neurological injury. § 766.305(4), Fla. Stat.

17. If NICA determines that the infant suffered a compensable birth -

related neurological injury, it may award compensation to the claimants, as

approved by the assigned administrative law judge (ÑALJÒ) . § 766.305(7), Fla.

Stat. But, if NICA disputes the claim, as it does here, the disput e must be

resolved by an ALJ in accordance with chapter 120 , Florida Statutes .

§§ 766.304, 766.309, and 766.31, Fla. Stat.

18. In determining compensability, the ALJ must make the f ollowing

determinations based up on the available evidence:

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

neurological injury . È

(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 certifie d

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 .

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

pursuant to s. 766.31.

(d) Whether, if raised by the claimant or other

party, the factual determinations regarding the

notice requirements in s. 766.316 are satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations .

§ 766.309(1) , Fla. Stat.

19. The term Ñ birth - related neurological injury Ò is defined as follows:

[I] njury 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 mentall y and physically impaired.

This definition shall apply to live births only and

shall not include disability or death caused by

genetic or congenital abnormality.

§ 766.302(2), Fla. Stat. Thus, a bir th - related neurological injury has four

components: Ñ (1) an injury to the brain or spinal cord; (2) which is caused by

oxygen deprivation or mechanical injury; (3) during labor, delivery, or

resuscitation in the immediate postdelivery period; and (4) which renders the

infant permane ntly and substantially impaire d . Ò Bennett v. St. VincentÔs Med.

Ctr., Inc. , 71 So. 3d 828, 837 (Fla. 2011).

20. Petitioners have the burden to establish by a preponderance of the

evidence Ñthat the infant has sustained a brain or spinal cord injury caused

by oxygen deprivation or mecha nical injury and that the infant was thereby

rendered permanently and substantially mentally and physically impaired.Ò

§ 766.309(1)(a), Fla. Stat.; see also § 120.57(1)(j), Fla. Stat. (providing that

findings of fact, except in penal and licensure discipli nary proceedings or as

provided by statute, Ñshall be based upon a preponderance of the evidenceÒ);

Balino v. DepÔt of H RS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977) (holding

generally that Ñthe burden of proof, apart from statute, is on the party

asserting the affirmative of an issue be fore an administrative tribunal Ò).

21. If Petitioners meet their burden, section 766.309(1) provides that there

is a rebuttable presumption that the injury is a birth - related neurological

injury. Conversely, if Petitioners do not meet their burden, the undersigned is

required to issue an order dismissing the P etition. Id.

22 . Based on the Findings of Fact above, the undisputed evidence

establishes that, although an oxygen deprivation event occurred during the

delivery, it neit her caused Adaline to sustain a brain injury nor rendered her

permanently and substantially mentally and physically impaired. Thus, she

did not suffer a Ñ birth - related neurological injury .Ò £ 766.302(2) , Fla. Stat.

2 3 . Accordingly, based on the Findings o f Fact above and the undisputed

evidence, Adaline is not eligible for benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law herein, Petitioner s Ô

claim is not compensable, NICAÔs unopposed Motion for Summary Final

Order i s granted, and the Petit ion is dismissed with prejudice.

D ONE A ND O RDERED this 8th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

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 8th day of March, 2021 .

C OPIES F URNISHED (via certified mail) :

Amie Rice, Investigation Manager S imone Marstiller , Secretary

Consumer Services Unit Health Qu ality Assurance

Departme nt of Health Agency for Health Care

4052 Bald Cypress Way, Bin C - 75 Administration

Tallahassee, Florida 32399 - 3275 2727 Mahan Drive, Mail Stop 1

(Certified No. 7019 1640 0000 Tallahassee, Florida 32308

2306 3194) (Certified No. 7020 1290 0001

6309 9829)

Armando T. Lauritano, Esquire

Morgan & Morgan, P.A. Kenney Shipley, Executive Director

7 th Floor Florida Birth - Related Neurological

201 North Franklin Street Injury Compensation Assoc iation

Tampa, Florida 33602 2360 Christopher Place , Suite 1

(Certified No. 7020 129 0 0001 Tallahassee, Florida 32308

6309 9836) (Certified No. 7020 1290 0001

6309 9843)

Mark R. Messerschmidt, Esquire

La Cava Jacobson & Goodis, PA David W. Black, Esquire

Suite 1250 Frank, Weinberg & Black, P.L.

501 East Kennedy Boulevard 7805 Southwest 6th Court

Tampa, Florida 33602 Plantation, Florida 33324

(Certified No. 7020 1290 0001 (Certified No. 7020 1290 0001

6309 9850) 6309 98 67)

Louis J. La Cava, Esquire Carissa Brumby, Esquire

La Cava & Jacobson, P.A. Beytin, McLaughlin, Mclaughlin,

Suite 1250 O'Hara, Bocchino & Bolin, P.A.

501 East Kennedy Boulevard 1706 East Eleventh Avenue

Tampa, Florida 33602 Tampa, Florida 33606

(Certified No. 7020 1290 0001 (Certified No. 7020 1290 0001

6309 9874) 6309 9881)

Marian A. Sampson, MD Brandon Regional Hospital

Brandon Regional Hospital Attention: Risk Management

119 Oakfield Drive 119 Oakfield Dri ve

Brandon, Florida 33511 Brandon, Florida 33511

(Certified No. 7020 1290 0001 (Certified No. 7020 1290 0001

6309 9898) 6309 9904)

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 Stat utes.

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 gency c lerk of the Division of Administrative

Hearings within 30 days of rend ition 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 S o. 2d 299

(Fla. 1st DCA 1992).