20-004269N Quanishia Mallory And Yah Yah Polite, As Parents And Natural Guardians Of Yahsir Polie, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, December 29, 2020.

Summary: NICA's unopposed motion for summary final order granted where undisputed evidence confirmed child did not suffer birth-related neurological injury.

compensation should be awarded under the Florida Birth - Related

Neurological Injury Compensat ion Plan (“Plan”) .

P RELIMINARY S TATEMENT

On September 18 , 2020, Petitioners Quanishia Mallory and Yah Yah

Polite , as parents and natural guardians of Yahsir , a minor, filed a Petition

for Determination of NICA Compensability with the Florida Division of

A dministrative Hearings (“DOAH”). Petitioners seek a determination as to

whether Yahsir suffered a compensable “birth - related neurological injury”

and, if so, to award all NICA benefits available under the law.

The Petition named Ted Robertson, M.D., and Megan Bagwell, M.D., as

the obstetrician s who delivered Yahsir on April 8 , 2019, and AdventHealth

Daytona Beach (“Hospital”), as the h os pital where Yahsir was born. DOAH

sent copies of the Petition via Certified U.S. Mail to NICA , Dr. Robertson,

Dr. Bagwel l, and the Hospital on October 1, 2020 .

On September 29, 2020, Memorial Health Systems, Inc., d/b/a

AdventHealth Daytona Beach moved to intervene and the undersigned

granted that motion on the same day. On October 1, 2020, Dr. Robertson,

Dr. Bagwell, and Volusia OB/GYN, P.A., moved to intervene and the

undersigned granted that motion on the same day.

On November 13, 2020, NICA filed its Response to Petition for Benefits,

asserting that the claim was not compensable because Yahsir did not suffer a birth - r elated neurological injury. NICA supported the Response with reports

of its medical experts, Donald C. Willis, M.D., and Michael Duchowny, M.D.

On December 2, 2020, NICA filed its unopposed Motion for Summary

Final Order (“Motion”). Petitioners and Inter venors do not oppose the Motion.

On December 3, 2020, the undersigned issued an Order to Show Cause to

allow Respondent an opportunity to resolve apparent inconsistencies in its

expert reports. On December 16, 2020, Respondent responded to the Order

and at tached a revised report from Dr. Duchowny. On December 17, 2020,

Respondent filed correspondence from Dr. Willis confirming the accuracy of

his prior report. In its Response, Respondent noted that neither Petitioners

nor Intervenors opposed its Motion.

Th e available evidence in the cause is comprised of the expert reports of

Dr. Willis and Dr. Duchowny.

F INDINGS OF F ACT

1. Petitioners are the parents and natural guardians of Yahsir.

2. On April 8 , 2019, Ms. Mallory gave birth to Yahsir, a single gestatio n of

39 weeks, at the Hospital . Yahsir was delivered by cesarean section and

weighed 3,786 grams at birth.

3. Ted Robertson, M.D., and Megan Bagwell, M.D., provided obstetric al

services and delivered Yahsir .

4. The undisputed evidence in the record consist s of signed reports of t wo

physicians — Donald Willis, M.D., an obstetrician, and Michael Duchowny,

M.D., a pediatric neurologist who conducted a remote evaluation of Yahsir.

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

about Yahsi r’s delivery in a report, dated October 9, 2020 .

6. According to Dr. Willis, Ms. Mallory suffered from elevated blood

pressure at 34 weeks gestational age and was diagnosed with preeclampsia

after a brief hospital evaluation. As a result of the preeclampsi a, she was

admitted to the Hospital on April 7, 2020, for induction of labor at 39 weeks.

Yahsir was delivered the next morning by cesarean section due to a non -

reassuring fetal heart rate pattern and suspected placental abruption .

7. Yahsir was depressed at birth with APGAR scores of two at one minute,

five at five minutes, and eight at ten minutes. Yahsir’s heart rate was less

than 60 bpm at birth. Positive pressure ventilation was initiated without the

need for chest compression and bag and mask ventilat ion continued for three

minutes. Oxygen was weaned and Yahsir was transferred to the NICU.

8 . Yahsir arrived in the NICU with an oxygen saturation of 95 percent on

room air and no further respiratory distress occurred before his discharge.

The medical reco rds noted that Yahsir was “without clinical encephalopathy.”

No seizure activity occurred during his stay in the Hospital.

9. At Yahsir’s pediatric follow up appointment at four days old, he was

noted as having a bilateral upper extremity tremor. Neurolog ical evaluation

was scheduled and, at five months old, Yahsir was diagnosed with spastic

cerebral palsy. An MRI conducted at seven months was normal.

10. Based on the medical records, Dr. Willis opined that Yahsir’s

neurologic issues do not appear to be bi rth related. Although the labor was

complicated by a non - reassuring fetal heart rate pattern, Yahsir was initially

depressed at birth with low APGAR scores, and was later diagnosed with

cerebral palsy, Dr. Willis noted that Yahsir suffered no multi - system organ

failures or seizure activity at the Hospi tal and had a normal MRI finding at

seven months old.

11. Dr. Duchowny reviewed the medical records, conducted a virtual

neurological evaluation by Zoom on October 30, 2020, and summarized his

opinions in a re port, dated November 6, 2020, as to whether Yahsir suffers

from permanent and substantial mental and physical impairment caused by

an oxygen deprivation event.

1 2 . Yahsir was 18 months old at the time of the evaluation. He was

previously diagnosed with cer ebral palsy and leg tightness has been his

major issue. He began physical therapy at four months old and began

walking independently at eight months old. He can run, climb stairs, and has

no motor regression. He can use both hands cooperatively and has no

required medical treatment for spasticity . His previous MRI findings were

normal.

13. Yahsir’s communication is delayed. He did not say any words until

about 12 to 13 months old and only seems to repeat what he hears, but he

understands spoken language wit hout difficulty. Yahsir’s speech sounds are

unclear, but his hearing and vision are good. He has no significant feeding

issues and has gained weight steadily. Yahsir has significant sleep issues and he is prone to temper tantrums, but his overall health is otherwise stable. He

attends daycare five days per week.

14. Dr. Duchowny found Yahsir to be an alert, well - developed, and well -

nourished infant. Although Yahsir showed mild speech delay, Dr. Duchowny

believed that would improve with speech therapy. Based on the medical

records and evaluation, Dr. Duchowny did not believe that Yahsir has a

substantial mental or physical impairment.

C ONCLUSIONS OF L AW

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

the subject matter of this case. § 766.304, Fla. Stat .

16. The Legislature established the Plan “for the purpose of providing

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

claims” occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

17. An inj ured 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 administers 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.

18. If NICA determines that the infant suffer ed a compensable birth -

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

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

But, if NICA disputes the claim, as it does here, the dispute must be resolved

by an administrative law judge (“ALJ”) in accordance with chapter 120 ,

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

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

determinations based up on the available evidence:

(a) Whet her 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 post

delivery 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 post

delivery 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.

20. The term “ birth - related neurological injury ” 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 infan t

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 post delivery period in a hospital,

which renders the infant permanently and substantia lly 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.

§ 766.302(2), Fla. Stat. Thus , a “birth - related neurological injury” has four

comp onents: “ (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 substant ially impaired . ” Bennett v. St. Vincent’s Med.

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

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

evidence “that the infant has sustained a brain or spinal cord injury caused by oxygen depriva tion or mechanical injury and that the infant was thereby

rendered permanently and substantially mentally and physically impaired.”

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

findings of fact, except in penal and licen sure disciplinary proceedings or as

provided by statute, “shall be based upon a preponderance of the evidence”); Balino v. Dep’t of H RS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977) (holding

generally that “the burden of proof, apart from statute, is on the par ty

asserting the affirmative of an issue before an administrative tribunal.”).

22. 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 petition. Id.

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

establishes that Yahsir did not sustain a brain injury caused by oxygen depriv ation during labor, delivery, and the immediate post - delivery period

and, even if he had, th e brain injury did not render him permanently and

substantially mentally and physically impaired. Thus, Yahsir did not suffer a

“ birth - related neurological injury .” § 766.302(2) , Fla. Stat.

24. Accordingly, based on the Findings of Fact above and the undisputed

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

C ONCLUSION

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

claim is not compensable under the Plan, NICA’s Motion for Summary Final

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

D ONE A ND O RDERED this 29th day of December , 2020 , in Tallahassee,

Leon County, Florida.

S

A NDREW D. M ANKO

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

Filed with the Clerk of the

Division of A dministrative Hearings

this 29th day of December, 2020 .

C OPIES F URNISHED :

(via certified mail)

Richard W. Bates, Esquire

Morgan & Morgan, P.A.

Suite 1600

20 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified No. 7020 1290 0001 6309 9430)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7020 1290 0001 6309 9447)

Travase Lloyd Erickson, Esquire

Saalfiel d Shad, PA

Suite 400

245 Riverside Avenue Jacksonville, Florida 32202

(eServed)

(Certified No. 7020 1290 0001 6309 9454 )

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified No. 7020 1290 0001 6309 9461 )

Craig S. Foels, Esquire

Estes, Ingram, Foels & Gibbs P.A.

Suite 330

2600 Lake Lucien Drive

Maitland, Florida 32751

(eServed)

(Certified No. 7020 1290 0001 6309 9478 )

Amie Rice, Investigation Manager

Consumer Services Unit

Depar tment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7020 1290 0001 6309 9485 )

Shevaun Harris, Acting Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tal lahassee, Florida 32308

(eServed)

(Certified No. 7020 1290 0001 6309 9492 )

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), Flori da 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 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).