20-003838N Quantair Hutchinson And Kayla Gaines, As Personal Representatives Of The Estate Of Joel Hutchinson, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, December 23, 2020.

Summary: Petitioners' child's injury did not occur during labor, delivery, or the immediate post-delivery period. Petition dismissed.

Statutes (2017), compensable by the Florida Birth - Related Neurological

Injury Compensation Plan (Plan).

P RELIMINARY S TATEMENT

On Augus t 21, 2020, Quantair Hutchinson and Kayla Gaines, as the

parents and natural guardians and personal representatives of the Estate of

Joel Hutchinson, filed an Amended Petition for Determination of Availability

of NICA Coverage (the Petition). The Petition identified Rasiklal D. Nagda,

M.D., as the physician providing obstetrical services, and Munroe Regional

Medical Center as the hospital where Joel was born. Notice of the Petition was provided to NICA, Dr. Nagda, and Munroe Regional Medical Center by

certi fied mail on August 28, 2020. The only return receipt received is from

NICA; however, o n October 15, 2020, Dr. Nagda and Nagda Medical, Inc. ,

moved to intervene in the proceedings , and intervention was granted by

Order dated October 21, 2020.

On October 1 4, 2020, NICA filed a Response to Petition for Benefits, in

which it asserted that the injury was not a birth - related neurological injury

and requested a hearing on compensability. On October 21, 2020, an Order

was issued directing the parties to provide m utually acceptable dates for

conducting a hearing; an estimate of how long the hearing would require; and

the parties’ preference on venue. On November 3, 2020, NICA filed a Status

Report advising that Petitioners were not contesting the determination that

the claim was not compensable, and the Intervenors were taking no position

on the issue. NICA advised of its intention to file a Motion for Summary

Final Order. Accordingly, on November 13, 2020, an Order was issued that

required any Motion for Summary Fi nal Order to be filed by December 11,

2020, and if none was filed, the case would be scheduled for hearing on a date available on the administrative law judge’s calendar. NICA’s Motion for

Summary Final Order and supporting exhibit (which is Dr. Willis’s a ffidavit,

with his CV and expert report attached) was filed December 10, 2020.

Neither Petitioners nor Intervenors have filed a response.

F INDINGS OF F ACT

Based on the allegations in the Petition and the expert report and

affidavit filed as part of Exhibi t A, the following facts are undisputed:

1. Kayla Gaines was approximately 38 weeks pregnant with her sixth

child when she presented to Munroe Regional Medical Center for labor

evaluation on January 3, 2018. According to Dr. Willis’s report, at that time

h er cervix was not dilated, and she was only 30% effaced. Ms. Gaines was

discharged with a diagnosis of false labor.

2. On January 5, 2018, Ms. Gaines returned to the hospital with severe

abdominal pain, and at that time, no fetal heart rate could be identi fied by

doppler or ultrasound. Her cervix remained unchanged from the visit two

days before.

3. An emergency Cesarean section was performed because of the lack of a

detected heartbeat for the infant. According to Dr. Willis’s report, a uterine

rupture had occurred, with the baby and placenta floating in the abdominal

cavity.

4. Joel’s birth weight was 3,405 grams. He was severely depressed at

birth, with Apgar scores of 0/0/0/2. After resuscitative efforts including chest

compression, intubation, epinephr ine, and normal saline boluses, a very faint

heart rate was obtained at 11 minutes after birth. Joel was transferred to

Shands UF for evaluation and cooling protocol. However, Joel suffered multi -

system organ failures, and his EEGs continued to show electr ocerebral

silence. A brain death evaluation was performed and a finding of brain death was made due to severe HIE (hypoxic - ischemic encephalopathy). As a result,

Joel was removed from life support and passed away one week after birth. Dr. Willis’s report s tates:

In summary, pregnancy was complicated by a

uterine rupture with placental abruption. Apgar scores were 0/0/0/2 with a heart beat not obtained

until 11 minutes after birth. Acidosis was

prolonged despite resuscitative efforts. EEG showed electrocereb ral silence, which did not

improve after cooling protocol. MRI was consistent

with global HIE. Brain death due to HIE was

diagnosed and life support was withdrawn.

Was the mother in labor? Uterine rupture of a Cesarean section scar prior to the onset of labor is

not common. The mother was having abdominal

pain, which could be due to labor contractions, but abdominal pain and frequent contractions are also hallmarks of placental abruption.

Labor is defined as cervical change due to uterine

contractions. C ervical exam just prior to delivery is

closed and 30% effaced, which is unchanged

compared to the exam two days prior. Therefore, it

is my impression that the mother was not in labor

at [the] time of uterine rupture and placental abruption.

No fetal hear t beat was present when the mother

arrived at the hospital, which is unchanged compared to the exam two days prior. Therefore, it is my impression that the mother was not in labor at time of uterine rupture and placental abruption.

No fetal heart rate wa s present when the mother

arrived at the hospital, consistent with the brain

injury occurring prior to birth.

The baby suffered oxygen deprivation and resulting

brain injury severe enough to cause death. However, it appears the oxygen deprivation occurre d prior to the onset of labor or delivery. The

oxygen deprivation and brain injury did not occur

during labor, delivery or the immediate post -

delivery period.

5. Dr. Willis’s affidavit adopts his report and opinion within a reasonable

degree of medical pr obability. His affidavit and report are uncontroverted,

and his opinion is accepted.

6. Based on the evidence presented in support of the Motion, Joel is not

eligible for compensation under the Plan because the evidence does not

indicate that his injury wa s suffered during labor, delivery, or the immediate

post - delivery period.

C ONCLUSIONS OF L AW

7. T he Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of these proceedings. §§ 766.301 - 766.316,

Fla. Stat.

8. The Plan was established by the Florida Legislature “for the purpose of

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

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

§ 766.303(1), Fla. Stat.

9. An injure d child, his or her personal representative, parents, or next of

kin may seek compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3), 766.303(2), and

766.305(1), Fla. Stat. Pursuant to sec tion 766.305(4), NICA, which

administers the Plan, has 45 days from the date that a complete claim is

served to file a response to a petition, and to submit relevant written

information related to whether the alleged injury is a birth - related

neurological injury.

10. If NICA determines that the alleged injury is a birth - related

neurological injury that is compensable under the Plan, it may award

compensation to the claimant(s), provided that the award is approved by the

assigned administrative law judge. § 766.305(7), Fla. Stat. However, if NICA

disputes the claim, as it does in this case, the dispute must be resolved by an

administrative law judge in accordance with the procedures outlined in

chapter 120, Florida Statutes. §§ 766.304, 766.30, and 766.31, Fl a. Stat.

11. A birth - related neurological injury is defined by section 766.302(2),

which provides:

(2) “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 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 render s the infant permanently and substantially

impaired. This definition shall apply to live births only and shall not include disability or death

caused by genetic or congenital abnormality.

12. Generally, if the claimant demonstrates , and the administrative law

judge finds , that the infant has sustained a brain or spinal cord injury caused

by oxygen deprivation or mechanical injury, and that as a result the infant

was rendered permanently and substantially mentally and physically

impaired, then section 766.3 09(1) provides a rebuttable presumption that the

injury is a birth - related neurological injury, and the claimant need not

establish that the injury occurred during labor, delivery, or resuscitation in the immediate post - delivery period.

13. The presumptio n outlined in section 766.309(1) does not apply in this

case. First, the presumption only comes into play when the claimant, as

opposed to NICA or an intervenor, establishes that a brain or spinal cord

injury occurred and that the infant sustained permanen t and substantial

mental and physical injuries. Here, NICA, as opposed to Petitioners, is

moving for a summary final order. NICA is not entitled to the statutory

presumption. Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So. 3d 828, 844 (Fla.

2011). Second, the presumption is a “bursting bubble” presumption, and

disappears when there is credible, contrary evidence to rebut the

presumption. Id. a t 846. Dr. Willis’s report and affidavit, which are

unrebutted, indicate that , more likely than not, the injury in this case

occurred before labor, and his opinion has been credited. Accordingly, Joel did

not have a birth - related neurological injury as that term is defined in section

766.302(2), and the injury he suffered is not compensable under the Plan.

C ONCLUSIO N

Based on the Findings of Fact and Conclusions of Law, Petitioners ’ claim

is not compensable under the Plan, and the Amended Petition is dismissed with prejudice.

D

ONE A ND O RDERED this 23rd day of December , 2020 , in Tallahassee,

Leon County, Florida.

L ISA S HEARER N ELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

F iled with the Clerk of the

Division of Administrative Hearings

this 23rd day of December , 2020 .

C OPIES F URNISHED :

(via certified mail)

Jordan A. Dulcie, Esquire

Searcy Denney Scarola Barnhart & Shipley, P.A .

2139 Palm Beach Lakes Boulevard

West P alm Beach, Florida 33409

(eServed)

(Certified Mail No. 7020 1290 0001 6309 8679)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7020 1290 0001 6309 8686)

Ryan M. Sanders, Associate

Lubell Rosen, LLC

Suite 900

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

(eServed)

(Certified Mail No. 7020 1290 0001 6309 8693)

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7020 1290 0001 6309 8709)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tall ahassee, Florida 32399 - 3275

(Certified Mail No. 7020 1290 0001 6309 8716)

Shevaun L. Harris , Acting Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(Certified Mail No. 7020 1290 0001 6309 8723)

AdventHealth Ocala

Attention: Risk Management

1500 Southwest 1st Avenue

Ocala, Florida 3 447 1

(Certified Mail No. 7020 1290 0001 6309 8730)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law jud ge 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 dministrat ive 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 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).