20-003597N George Bull And Holli Bull, On Behalf Of And As Parents And Natural Guardians Of Jaxson Bull, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, February 11, 2021.

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.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

G EORGE B ULL A ND H OLLI B ULL , O N

B EHALF OF A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF J AXSON B ULL , A

M INOR ,

Petitioners ,

vs. Case No. 20 - 3597N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This came before the undersigned on RespondentÔs Amended Motion for

Summary Final Order, filed January 25, 2021. Petitioners did not file a

response to the motion within the allowable response period.

In its Motion, the Florida Birth - Related Neurological Injury

Compensation Association (NICA) asserts that in order for a claim to be

compensable under the Florida Birt h - Related Neurological Injury

Compensation Plan (the Plan), the statutory prerequisites of section 766.309,

Florida Statutes, must be met, including:

(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 . . .

(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 hospi tal; 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.

* * *

(2) If the administrative law judge determine s that

the injury alleged is not a birth - related neurological

injury or that obstetrical services were not

delivered by a participating physician at the birth,

she or he shall enter an order . . . . (emphasis

added).

The term Ñbirth - related neurological injuryÒ is defined in section

766.302(2) as:

(2) 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 weig hing

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 shall not include

disability or death caused by genetic or congenital

abnormality. (emphasis added).

F INDINGS OF F ACT

1. On July 27, 2020, Petitioners filed a Petition for Determination as to

Applicability of Florida Birth - Related Neurological Injury Compensation

Plan, pursuant to sections 766.301 - 766.316, otherwise known as the Plan.

2. The baby was born on April 23, 2019, at Tallahassee Memorial

Healthcare (Hospital). The circumstances of the labor, delivery, and birth of

the minor child are reflected in the medical records the Hospital submitted

with the Petition.

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

medical expert specializing in mat ernal - fetal medicine, who opined that

Ñ[t[here was an obstetrical event that resulted in loss of oxygen to the baby's

brain during labor, delivery and continuing into the immediate post delivery

period. The oxygen deprivation resulted in brain injury.Ò Dr. WillisÔ s report

was filed with NICAÔs Response to the Petition on December 18, 2020.

Dr. Willis also commented that he Ñis not able to comment about the severity

of the injury.Ò

4. Additionally, NICA retained Michael S. Duchowny, M.D. , as its medical

expe rt specializing in Pediatric Neurology. Dr. DuchownyÔs Affidavit was

attached to the motion. Upon examination of the pertinent medical records

and performance of an independent medical examination, Dr. Duchowny

opined:

In summary, Jaxson's examination rev eals findings

consistent with multiple developmental disabilities.

He is hyperactive and impulsive with behavioral

issues, and evidences delayed language and social

development. I could not confirm the history of

exotropia. In contrast there were no findin gs

indicative of structural brain injury. Jaxson's social

and communication issues strongly suggest an

underlying diagnosis of autism spectrum disorder.

A review of Jaxson's medical records confirms his

birth at Tallahassee Memorial Hospital at

38 weeks' gestation. He weighed 2.499 kg. and had

Apgar scores of 0,0 and 0 at 1, 5 and 10 minutes of

life. Cord blood gases were not drawn. Jaxson was

resuscitated at birth and admitted to the NICU

where he was placed in a therapeutic hypothermia

protocol. An MRI s can obtained on May 1st

(DOL# 8) revealed multifocal intracerebral

hemorrhages with the largest in the right temporal

lobe; a right temporal extra - axial hemorrhage was

also noted.

By history obtained today, a repeat head CT scan

at age 5 months was norma l.

Jaxson's multiple developmental delays were likely

acquired prior to birth and were not caused by

mechanical injury or oxygen deprivation during

labor or delivery. In all likelihood, the hemorrhages

noted on brain images were acquired at delivery

but li kely were resorbed into the bloodstream

without resulting in brain injury. I therefore am

not recommending that Jaxson be considered for

inclusion in the NICA program.

5. The medical reports and affidavits of Dr. Willis and Dr. Duchowny are

the only evide nce 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. Duchowny, 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 these proceedings. §§ 766.301 -

766.316, Fla. Stat.

7. The Plan was established by the Legislature Ñfor the purpose of

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

injury claimsÒ related to births occurring on or after January 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 claim 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 alle ged 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, if NICA

dispute s 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 sustain ed a birth - related

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

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 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 i nfant permanently and substantially

mentally and physically impaired. This definition

shall apply to live births only and shall not include

disability or death caused by genetic or congenital

abnormality.

11. If the administrative law judge determines tha t 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 permanently 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 birth - related neurological i njury. This issue is dispositive with respect to

compensability. Based upon this evidence, Jaxson Bull 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 u pon the Findings of Fact and Conclusions of Law provided above,

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

dismissed with prejudice.

D ONE A ND O RDERED this 11th day of February , 202 1 , in Tallahassee, Leon

County, Florida.

S

W. D AVID W ATKINS

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 11th of February , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Shevaun L. Harris, Acting Secretary

Consumer Services Unit Health Quality Assuran ce

Department of Health Agency for Health Care Administration

4052 Bald Cypress Way, Bin C - 75 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32399 - 3275 Tallahassee, Florida 32308

(Certified No. 7020 2450 0002 1970 5015) (Certified No. 7020 2450 0002 1970 5022)

Tana D. Storey, Esquire E. Rose Kasweck, Esquire

Rutledge Ecenia, P.A. FASIG | BROOKS

Suite 202 Suite 200

119 South Monroe Street 3522 Thomasville R oad

Tallahassee, Florida 32301 Tallahassee, Florida 32309

(Certified No. 7020 2450 0002 1970 5039) (Certified No. 7020 2450 0002 1970 5046)

Kenney Shipley, Executive Director Tallahassee Memorial Hospital

Florida Birth - Related Neurological Attention: Risk Management

Injury Compensation Association 1300 Miccosukee Road

Suite 1 Tallahassee, Florida 32308

2360 Christophe r Place ( Certified No. 7020 2450 0002 1970 5060)

Tallahassee, Florida 32308

(Certified No. 7020 2450 0002 1970 5053)

Andrea Friall, M.D.

Suite 202

1401 Centerville Road

Tallahassee, Florida 32308

Certified No. 7020 2450 0002 1970 5077)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrati ve 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 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 App eal. 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).