20-003836N Zoya Jones, On Behalf Of And As Parent And Natural Guardian Of Zoe Jones, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 1, 2021.

Summary: Summary final order of dismissal granted to Resondent as minor did not sustain a birth-related neurological injury, and, therefore, claim was determined to be non-compensable under the Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

Z OYA J ONES , O N B EHALF OF A ND A S

P ARENT A ND N ATURAL G UARDIAN OF Z OE

J ONES , A M INOR ,

Petitioner,

vs. Case No. 20-3836N

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 matter came before the undersigned on Respondent’s Motion for

Summary Final Order (Respondent’s Mo tion), filed December 30, 2020.

Petitioner did not file a response.

S TATEMENT OF T HE C ASE

On May 22, 2020, Petitioner 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 named Thomas De smond, M.D., as the physician who

provided obstetric services for the birth of Zoe Jo nes (Zoe), a minor, at

St. Mary’s Medical Center, in West Pa lm Beach, Florida, on May 21, 2018.

On August 28, 2020, DOAH mailed a copy of the Petition to Respondent,

Dr. Desmond, and St. Mary’s Medical Ce nter via certified mail. Respondent

was served with the same on August 31, 2020.

On November 16, 2020, after granting two extensions of time, Respondent

filed its Response to Petition for Be nefits, wherein Respondent maintained

that the claim was not compensable because Zoe did not sustain a “birth-

related neurological injury,” as de fined by section 766.302(2), Florida

Statutes. Respondent requested that a bifurcated hearing be scheduled to

address the issues of compensability and notice first, and, if required, to

address the amount of an award in a second hearing.

On November 20, 2020, the undersigned issued an Order Requiring

Response, directing the parties to co mmunicate and advise whether a final

hearing would be required; and, if so, an estimate of the time required to

conduct the hearing and several mutually agreeable dates to conduct the

hearing. On November 30, 2020, the parties filed a joint response wherein

Respondent advised that it intended to file a motion for summary final order

and Petitioner advised that a hearing was necessary.

On December 4, 2020, the final hear ing was scheduled for January 26,

2021. On December 30, 2020, Respondent’s Motion was filed. On January 8,

2021, the undersigned issued an Order to Show Cause requiring Petitioner to

show cause in writing why Respondent’s Motion should not be granted. On

the same date, the parties filed a join t motion for continuance of the final

hearing, which was granted on January 14, 2021.

Petitioner did not timely respond to the Order to Show Cause but, on

January 19, 2021, did file correspondence indicating the need for additional

time to respond. On the same date the parties filed a status report indicating

availability for final hearing. Thereaft er, the final hearing was scheduled for

April 8, 2021.

On March 11, 2021, Respondent filed a motion seeking to continue the

final hearing and requesting a status conference. A telephonic status

conference was properly noticed for March 22, 2021. Petitioner failed to

attend the conference. On March 22, 2021, the undersigned again issued an

Order to Show Cause ordering Petitioner to show cause in writing why

Respondent’s Motion should not be granted. Petitioner failed to respond to

the Order to Show Cause.

F INDINGS OF F ACT

1. Zoe was born on May 21, 2019, at St . Mary’s Medical Center, a hospital,

in West Palm Beach, Florida.

2. Zoe was a single gestation and her weight at birth exceeded 2,500

grams.

3. As set forth in greater detail belo w, the unrefuted evidence establishes

that Zoe did not sustain a “birth-related neurological injury,” as defined by

section 766.302(2).

4. Donald Willis, M.D., a board-certified obstetrician specializing in

maternal-fetal medicine, was retained by Respondent to review the pertinent

medical records of Zoya Jones and Zoe and opine as to whether Zoe sustained

an injury to her brain or spinal co rd caused by oxygen deprivation or

mechanical injury that occurred during the course of labor, delivery, or

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

5. In his report, dated September 14, 2020, Dr. Willis summarized his

findings and opinions as follows:

In summary, the mother presented in labor at

term. There was no apparent fetal distress during

labor. Spontaneous vaginal delivery resulted in a

vigorous newborn with Apgar scores of 9/9.

Newborn hospital course was complicated only by

the somewhat confusing hi story for syphilis . . .

The baby suffered a brain injury at some time

remote from the CT scan at 2 months of age. The

baby as not depressed at birth and the newborn

hospital course was not complicated by multi-

system organ failures. The brain injury does not

appear to be birth related.

* * *

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical trauma to

the baby’s brain during labor, delivery or in the

immediate post delivery period.

6. In his supporting affidavit, Dr. W illis opines, to a reasonable degree of

medical probability, that “there was no apparent obstetrical event that

resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal

cord during labor, delivery or in the immediate post-delivery period.”

7. Respondent also retained Mich ael S. Duchowny, M.D., a pediatric

neurologist, to review the medical records of Zoya Jones and Zoe, and to

conduct an Independent Medical Examin ation (IME) of Zoe. The purpose of

his review and IME was to determine whether Zoe suffered from a

permanent and substantial mental and phys ical impairment as a result of an

injury to the brain or spinal cord caus ed by oxygen deprivation or mechanical

injury in the course of labor, delivery, or resuscitation in the immediate post-

delivery period.

8. Dr. Duchowny reviewed the pert inent medical records and, on

October 15, 2020, conducted the IME remotely via Zoom teleconference. In

his report, prepared November 6, 2020, he summarized his findings and

opinions as follows:

In summary, Zoe’s neurological evaluation reveals

findings consistent with a substantial mental and

motor impairment. She has spastic quadriplegic

(double hemiparetic) cerebral palsy, oromotor

incoordination, microcepha ly, absence of receptive

and expressive communication, sensorineural

hearing loss in the left ear and pathologic

developmental reflexes. Her level of development

approximates that of a 3-6 month-old infant.

Review of the medical records reveals that Zoe was

born at 40 2/7 weeks gestation at St. Mary’s

Hospital and weighed 6’12” [sic]. Pregnancy was

complicated by several sexually transmitted

diseases including a positive RPR that was treated

with penicillin but secondarily increased near term.

Pregnancy was also complicated by Type 2 HSV

genital infection and trichomonas infection treated

with metronidazole.

Zoe was delivered vaginally with Apgar scores of 9

and 9 at 1 and 5 minutes. Cord blood gases were

not requested and there was no evidence of

systemic organ dysfuncti on. Zoe was discharged

from the nursery on the third day of life.

* * *

Based on today’s neurological evaluation and

medical records review, I believe that while Zoe’s

neurological impairments and permanent and

substantial, they were most likely acquired in

utero. The records do not provide support for

intrapartum oxygen deprivation or mechanical

injury, and the brain imag ing findings are more

consistent with a prenatally-acquired infections

process that affected the brain. For these reasons, I

am not recommending that consideration be given

for Zoe’s inclusion in the NICA program.

9. In his supporting affidavit, Dr. Duchowny opines, to a reasonable

degree of medical probability, that Zoe di d not suffer an injury to the brain or

spinal cord caused by oxygen deprivatio n or mechanical injury occurring in

the course of labor, delivery, or resu scitation in the immediate post-delivery

period which rendered her permanen tly and substantially mentally and

physically impaired.

10. The undisputed and unopposed findings and opinions of Drs. Willis

and Duchowny are credited. The undersigned finds that Zoe did not sustain

an injury to the brain or spinal co rd caused by oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or resuscitation

in the immediate post-delivery period in a hospital, which rendered her

permanently and substantially mentally and physical impaired.

C ONCLUSIONS OF L AW

11. DOAH has jurisdiction over the pa rties to and the subject matter of

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

12. The Plan was established by th e Legislature “for the purpose of

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

injury claims” relating to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

13. The injured infant, her or his 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. Respondent, which administers the Plan, has “45 days

from the date of service of a complete cl aim ... 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 Respondent determines that the injury alleged is a claim that is a

compensable birth-related neurological injury, it may award compensation to

the claimant, provided that the award is approved by the administrative law

judge (ALJ) to whom the claim has been assigned. § 766.305(7), Fla. Stat. If,

on the other hand, compensability is disp uted, the dispute must be resolved

by the assigned ALJ in accordance with the provisions of chapter 120, Florida

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

15. In discharging this responsibility, the ALJ is required to make the

following threshold determinations 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 an d physically impaired, a

rebuttable presumption shall arise that the injury

is a birth-related neurological injury as defined in

s. 766.303(2).

(b) Whether obstetrical serv ices 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.

§ 766.309(1), Fla. Stat.

16. The term “birth-related neurological injury” is defined in

section 766.302(2) as follows:

“Birth-related neurological injury” 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 infant permanently and substantially

mentally and physically impaired.

17. If the ALJ determines that the injury is not a birth-related

neurological injury, or that obstetri cal services were not delivered by a

participating physician at birth, he or she is required to enter an order and

immediately provide a copy to the parties. § 766.309(2), Fla. Stat.

18. The undisputed and unopposed evidence establishes that there was

not an injury to Zoe’s brain caused by oxygen deprivation or mechanical

injury occurring in the course of labo r, delivery, or resuscitation in the

immediate post-delivery period in a hospital, which rendered her

permanently and substantially mentally and physically impaired. Thus, it is

concluded that she did not sustain a compensable birth-related neurological

injury, as defined in section 766.302(2), and, therefore, 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 Respondent’s Motion is granted and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 1st day of April, 2021, in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2021.

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller, 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. 7020 2450 0000 1058 7117)

(Certified No. 7020 2450 0002 1970 5602)

Kenney Shipley, Executive Director

Zoya Jones Florida Birth-Related Neurological

Apartment 436 Injury Compensation Association

2111 Brandywine Road Suite 1

West Palm Beach, Florida 33409 2360 Christopher Place

(Certified No. 7020 2450 0002 1970 5619) Tallahassee, Florida 32308

(Certified No. 7020 2450 0000 1058 7124)

Gordon Lea, Esquire

Lubell Rosen Tana D. Storey, Esquire

Suite 900 Rutledge Ecenia, P.A.

200 South Andrews Avenue Suite 202

Fort Lauderdale, Florida 33066 119 South Monroe Street

(Certified No. 7020 2450 0002 1970 5626) Tallahassee, Florida 32301

(Certified No. 7020 2450 0000 1058 7131)

St. Mary’s Medical Center

Attention: Risk Management Thomas Desmond, MD

901 45th Street No. 103

West Palm Beach, Florida 33407 927 45th Street

(Certified No. 7020 2450 0000 1058 7100) West Palm Beach, Florida 33407

(Certified No. 7020 2450 0000 1058 7148)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administra tive 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 commenc ed by filing the original notice of

administrative appeal with the agency cl erk of the Division of Administrative

Hearings within 30 days of rendition of the order to be reviewed, and a copy,

accompanied by filing fees prescribe d by law, with the clerk of the

appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla.

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

(Fla. 1st DCA 1992).