20-004270N Jacqueline Mayer And Jonathan Zaifert, On Behalf Of And As Parents And Natural Guardians Of Lauren Zaifert, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 20, 2021.

Summary: The evidence does not support a finding that the infant sustained a "substantial" birth-related neurological injury. Therefore, Petitioners' claim does not meet the requirements for eligibility for compensation under the NICA Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ACQUELINE M AYER A ND J ONATHAN

Z AIFERT , O N B EHALF OF A ND A S P ARENTS

A ND N ATURAL G UARDIANS OF L AUREN

Z AIFERT , A M INOR ,

Petitioners ,

vs. Case No. 20 - 4270N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSO CIATION ,

Respondent .

/

F INAL O RDER

The final hearing in this matter was conducted before J. Bruce Culpepper,

Administrative Law Judge of the Division of Administrative Hearings,

pursuant to sections 120.569, 120.57(1), and 766.304, Florida Statutes, 1 on

July 16, 2021, by Zoom Conference from Tallahassee, Florida.

A PPEARANCES

For Petitioners: Jacqueline Mayer, pro se

15608 Starling Water Drive

Lithia, Florida 335 47

Jonathan N. Zaifert, pro se

1580 West Cleveland Street

Tampa, Florida 33606

For Respondent: Brooke M. Gaffney, Esquire

Smith, Bigman & Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

1 All statutory references are to Florida Statutes (20 21 ), unless otherwise noted.

S TATEMENT O F T HE I SSUE

The issue in this matter is whether Lauren Zaifert suffered a " birth -

related neurological injury , " as defined by section 766.302(2), for which

compensation should be awarded under the Florida Birth - Related

Neurological Injury Compensation Plan.

P RELIMINARY S TATEMENT

On August 17, 2020, Petitioners , Jacqueline Mayer and Jonathan Zaifert,

as parents and natural guardians of Lauren Zaifert ( " Lauren " ), a minor, filed

a Petition for Be nefits Pursuant to Florida Statute Section 766.301 et seq.

(the " Petition " ) with the Division of Administrative Hearings ( " DOAH " ) for

the determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (the " Plan " ).

Lauren was born on May 24, 2016, at Tampa General Hospital ( " Tampa

General " ). Thanh - Xuan Le, ARNP, CNM, w as the primary healthcare

professional who provided obstetrical services at Lauren ' s birth.

DOAH served a copy of the Petition on Respondent , Florid a Birth - Related

Neurological Injury Compensation Association ( " NICA " ) , on October 1, 2020.

DOAH also served Ms. Le with a copy of the Petition, as well as Tampa

General , on that same date.

On December 22, 2020, NICA filed its response to the Petition, tak ing the

position that Lauren did not suffer a " birth - related neurological injury "

within the meaning of section 766.302(2). Accordingly, NICA asserted that

Petitioners ' claim is not compensable under the Plan.

NICA requested DOAH schedule an evidentiary hearing to determine

compensability. NICA also requested that DOAH bifurcate the

administrative proceeding to address the issue of compensability before

determining the amount of an award to which Petitioners might be entitled

under section 766.31. In ligh t of NICA ' s request, the undersigned bifurcates

this proceeding. Accordingly, this Final Order only addresses compensability.

See § 766.309(4), Fla. Stat.

The final hearing on the issue of compensability was held on July 16,

2020. At the hearing, Joint Ex hibits 1 through 10 were admitted into

evidence. Petitioners ' Exhibits 1 through 3 were admitted into evidence.

NICA offered Exhibits 1 through 4, which were also admitted. Petitioner

Jacqueline Mayer provided a sworn statement on behalf of Petitioners.

Fu rther , by agreement of the parties, the undersigned admitted the

deposition testimony of Ms. Mayer (NICA ' s Exhibit 3) and Luis E. Bello -

Espinosa, M.D. (NICA ' s Exhibit 4).

A Transcript of the final hearing was filed with DOAH on July 30, 2021.

At the close of the hearing, the parties were advised of a ten - day deadline

after receipt of the hearing transcript to file post - hearing submittals.

Following the hearing, both parties submitted separate, but unopposed,

requests to extend the filing timeframe, which w ere granted. 2 All parties filed

Proposed Final Orders, which were duly considered in preparing this Final

Order.

F INDINGS O F F ACT

1. Lauren was born to Petitioner Jacqueline Mayer on May 24, 2016.

Lauren was delivered at Tampa General , in Tampa, Florida .

2 By requesting a deadline for filing post - hearing submissions beyon d ten days after the

Transcript was filed , the 30 - day time period for filing the Final Order was waived. See Fla.

Admin. Code R. 28 - 106.216.

2. Petitioners Ms. Mayer and Jonathan Zaifert are Lauren ' s mother and

father.

3. Thanh - Xuan Le, ARNP, CNM, a certified nurse midwife, delivered

Lauren at Tampa General. Ms. Le was a " participating physician " in the Plan

at the time she rendered obstetri cal services on May 24, 2016. See

§§ 766.302(7) and 766.314(4), Fla. Stat. Dawn Palaszewski, M.D., assisted

Ms. Le at Lauren ' s birth. Dr. Palaszewski was also a " participating

physician " under section 766.302(7).

4 . Lauren was born full term weighing 2,9 80 grams ( six pounds, nine

ounces) at delivery.

5. The parties do not dispute that Lauren suffered an injury at her birth,

from which she continues to experience both mental and physical

impair ments . The parties do dispute the degree of Lauren's injuries, as well

as the specific cause of her injur ies .

6 . The statutory language that control s the determination in this matter

is found in s ection 766.302(2), which states:

" Birth - related neurological injury " means injury to

the brain or spinal cord of a live i nfant weighing at

least 2,500 grams for a single gestation È 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

permane ntly and substantially mentally and

physically impaired. (emphasis added) .

7 . Petitioners contend that Lauren ' s injuries were due to oxygen

deprivation during her labor and delivery. Petitioners further assert that

Lauren ' s injuries are " substantial . " Th erefore, Lauren ' s claim should be

considered compensable under the Plan.

8 . Conversely, NICA disputes that Lauren ' s injuries are " substantial. "

NICA also maintains that the evidence does not establish that Lauren ' s

injury was caused by oxygen deprivation. Consequently, NICA argues that

Lauren did not suffer a " birth - related neurological injury , " as defined in

section 766.302(2) , and Petitioners ' claim should be denied.

Lauren ' s Birth :

9 . Both Ms. Mayer and Mr. Zaifert were present at Lauren ' s birth.

1 0 . Jus t after Lauren was delivered, Petitioners heard a nurse sound a

code over a radio. Quickly thereafter, five to six medical personnel rushed

into the room. Mr. Zaifert recalled that it was " very clear " t hat something

was not right. He immediately thought th at " something traumatic " was

happening.

11. Lauren was rushed to the newborn intensive care unit ( " NICU " )

shortly after she was b orn. Upon admission, Lauren ' s medical records note

that she lay " supine in open crib, lethargic, unresponsive to exam. "

1 2 . On May 25, 2016 (the day after Lauren was born) , Ms. Le noted in

Lauren ' s medical records:

Delivery of infant ' s head was atraumatic. There

was not difficulty delivering the shoulder. The

infant did not cry at delivery. È NICU was called,

meconium noted at de livery. [F]emale infant

" Lauren " weighing 2980g with Apgars[ 3 ] 4 and 6

and was transferred to NICU for care. È Mom and

baby stable.

1 3 . Lauren was discharged from Tampa General on May 31, 2016, seven

days after her delivery. Her discharge summary provides a more detailed

description of the circumstances surrounding Lauren ' s birth , report ing :

The infant was floppy at delivery; the APGAR

scores were 5 at one minute and 5 at five minutes,

5 at 10 minutes. È On exam, infant was noted to

be neurologically dev astated with no gag, corneal,

or suck reflex. Infant was hypotonic. Due to

neurologic status and unresponsiveness infant was

transferred to the NICU. Birth was not traumatic.

3 An A PGAR score is a numerical expression of the condition of the newborn and reflects the

sum total of points gai ned on an assessment of heart rate, respiratory effort, muscle tone,

reflex irritability, and color. Bennett v. St. Vincent ' s Med. Ctr., Inc. , 71 So. 3d 828, 834 (Fla.

2011). APGAR stands for appearance, pulse, grimace, activity, and respiration.

1 4 . Her discharge summary also provides a n account of Lauren ' s time in

the NICU, stating:

The patient met 5/6 clinical criteria for moderate

encephalopathy and due to concern for HIE, [ 4 ] she

was started on a 72 hour cooling protocol. È The

infant did have subclinical seizure activity after

cooling began È . Infant ' s neurological exam

i mproved throughout admission as she had a suck

reflex, palmar/plantar reflexes, and improved tone.

She still did not have complete moro reflex at the

time of discharge.

1 5 . The discharge summary incorporated a " Patient Active Problem List , "

which include d the following entries :

- Term birth of female newborn

- HIE (hypoxic - ischemic encephalopathy), moderate

- Neonatal seizure

1 6 . Lauren ' s neurologic assessment at her discharge recorded:

Abnormal neurological exam immediately after

birth, possible HIE. No birth trauma reported or

concerns during the pregnancy.

Infant met 5 of 6 clinical criteria for moderate

encephalopathy.

On the other hand, Lauren's neurological exam also reported that her

condition improved throughout her hospital stay, and by the time of her

discharge, her neurological status was noted to be alert and active, with a

strong suck, intact plantar/palmar grasps bilaterally , and normal tone.

1 7 . An MRI performed on May 31, 2016, reported, " CEREBRAL

ISCHEMIA, 7 - day - old female with abnorm al neurologic examination. " 5 The

record then note d , " There is normal brain development, formation, and gray -

white matter differentiation. "

4 H ypoxic - ischemic encephalopathy .

5 Ischemia is a term for inadequate blood supply.

18 . O n June 6, 2016, Ms. Mayer returned with Lauren to the hospital

complain ing of Lauren's " poor oral intake. " An M RI obtained on June 6, 2016,

reported:

While there does appear to be some mildly

decreased signal within the cerebellum on the ADC

images, there is no signal abnormality seen on any

additional sequences suggesting that this is likely

artifactual. There is no mass, hemorrhage, or acute

infarct. There is normal brain development,

formation, and gray - white matter differentiation.

The impression from the MRI was " normal. "

1 9 . Lauren was discharged from her second stay at Tampa General on

June 9, 2016.

Lauren ' s Medical Condition :

2 0 . To support their position that Lauren suffered a qualifying " birth -

related neurological injury , " Petitioners rel y on a number of entries in

Lauren ' s medical records. Of primary significance to Petitioners are records

that indicate that Lauren suffered hypoxic - ischemic encephalopathy, with

seizures, at birth. As summarized by Ms. Mayer, Petitioners assert that

Lauren experienced hypoxia (lack of oxygen in the blood) when she was born,

which resulted in seizures that lasted until Lau ren was approximately s even

months old.

2 1. Petitioners also point to m edical records that describe Lauren ' s

physical injuries a s consistent with hypotonic cerebral palsy. Generally,

cerebral palsy is a motor disability caused by damage to the brain befor e,

during, or shortly after birth. " Hypotonic " cerebral palsy is characterized by

low muscle tone. Ms. Mayer represented that Lauren was formally diagnosed

with cerebral palsy in December 2020.

22 . Lauren has received regular physical and occupational the rapy over

the last four years . Pertinent entries from Lauren ' s therapeutic records offer

the following information :

a. In December 2017, Lauren underwent an occupational therapy

evaluation. Ms. Mayer reported to the therapist that Lauren had been

walking f or about two months. However, Lauren was falling frequently and

was having difficulty with motor skills , as well as displayed poor spatial

awareness. A physical examination found that Lauren had " slightly

decreased " muscle tone throughout and poor balance. On the other hand, her

range of motion and strength w ere noted to be within normal or functional

limits. Lauren was recommended for weekly occupational therapy.

b. Physical therapy records from July 2019 state that Lauren ha d a " [f]lat

foot pattern with i ntermittent toe/heel pattern. " When running Lauren

" exhibited decreased proximal stability resulting in excessive hip IR during

swing phase bilaterally, excessive horizontal plane movement, and poor

eccentric control. " Following a physical assessment, the therapist recorded

activity limitations including " global strength, static and dynamic balance,

gait and running pattern, sitting posture, jumping, stair navigation. "

Lauren ' s records also register that Lauren sat up at seven months, crawled at

12 months, and walked at 17 months. The physical therapist noted Lauren ' s

rehabilitation potential was " good. "

c. Occupational therapy records from August 2019 report that, " Lauren

presents with significant delays in self - care skills affecting her daily

independence. " The occupational therapist detailed that " Lauren requires

assistance to doff all clothing except shoes, and only moves arms or legs

slightly to assist with donning of clothing. " In addition, Lauren at e " a variety

of foods, except only broccoli for vegeta bles; Drinks through a straw, however

not from an open cup. È Attempts utensil use, however, will pick up food and

push onto end of fork. Will bring loaded spoon to mouth, however, frequently

spills. " On the other hand, Lauren was able to independently blo w bubbles

and open a marker. Lauren also " completed a 9 piece puzzle with picture

clues with ease. "

d. Developmental Behavioral Clinic notes from August 12, 2019, record a

diagnosis of chronic hypoxic - ischemic brain injury. However, the examining

physician remarked ; " Counseled parent that findings were not clearly

consistent with cerebral palsy, but establishing that diagnosis is outside my

scope of practice. "

e . Physical therapy records from January 2020 report that Lauren

" exhibits a 6 month delay in stat ionary tasks and a 18 month delay and

locomotion tasks È secondary to decreased strength, stability, and gross

motor skills including stair navigation and jumping. " For participation

restrictions, the physical therapist documented " global strength for stai r

negotiation and play on playground, static and dynamic balance for safe

navigation of community, gait and running pattern for play with peers,

sitting posture for joint integrity, jumping for play with peers, stair

negotiation for exploration of environm ent, tricycle for play with peers. " Once

again, her rehabilitation potential was noted as " good. "

f . Following a January 17, 2020, occupational therapy visit, the therapist

recorded that Lauren " has difficulty using a utensil during feeding. She is

able to drink from an open cup. " The therapist further reported that

Ms. Mayer had concerns with Lauren ' s " distractibility, " and that Lauren

" struggles with maintaining attention to therapist - directed tasks. " Lauren ' s

rehabilitation potential was still characteri zed as " good. "

g . During a February 18, 2021 , occupational therapy visit, the therapist

recorded that Lauren:

Presents with signs and symptoms of high

complexity and performance deficits in fine motor

coordination, strength, dexterity, attention,

perceptio n, problem solving, safety awareness,

interpersonal interactions, habits, behaviors, and

coping strategies which impact activity

participation and functional performance indicating

skilled occupational therapy treatment is indicated

to address these defici ts.

D uring the examination, Lauren produced a writing sample " with large print

and poor spacing. " Further, while she need ed " maximum assistance to attain

a correct scissor grip, " Lauren was able to " cut a sheet of paper in half

without assistance but with fair coordination. " She also scored within her age

limit in fine motor and visual skills testing.

h . During a February 2021 physical therapy visit, the therapist

commented that, " Lauren exhibits global strength deficits, impaired static

and dynamic balanc e, atypical gait and running pattern, delayed gross motor

skills, and poor jumping and coordination skills. These impairments may be

related to Lauren ' s diagnosis of hypotonic cerebral palsy. " Lauren ' s

rehabilitation potential was again listed as " good. "

2 3 . Lauren has also under gone several neuropsychological evaluations

since her birth. Pertinent entries record the following:

a . I n December 2020 and January 2021 , Lauren's overall cognitive

functioning was evaluated. P rogress Notes from December 16, 2020, list

findings " consistent with hypotonic cerebral palsy. " In addition, the

neuropsychologist found that, " Lauren ' s milestone development was delayed

in gross motor, fine motor and speech/language skills. " Lauren was noted to

have been previously diagnosed with S pecific Developmental Disorder of

motor function, Phonological Disorder , and Fluency Disorder. The

neuropsychologist, based on her own evaluation, also diagnosed Lauren with

an Unspecified Mood Disorder. On the other hand, the neuropsychologist

ruled out a diagnosis of Attention - Deficit/Hyperactive Disorder. The

neuropsychologist also commented that Lauren had remained seizure free for

four years and, as such, her current cognitive difficulties were not associated

with seizures , and n o clinically sign ificant cognitive deficit was discovered .

The neuropsychologist conclude d :

[R] esults from the tests revealed an average

performance on tests assessing verbal

comprehension, working memory and processing

speed skills. Lauren ' s performance revealed mild

defi cits within visual spatial skills and fluid

reasoning. However, her scores within tasks

assessing visual motor integration and visual

perception fell within normal limits.

b . On February 3, 2021, Lauren was seen at Johns Hopkins All Children's

Hospital re garding Petitioners ' concern s with the delay in Lauren ' s gross

motor development. A neurological examination recorded that Lauren was

cooperative and followed commands well. Her speech was clear and language

was normal. Lauren was able to draw people and o bjects and name their

parts. The medical provider ultimately agreed that Lauren suffered from

" mild hypotonic cerebral palsy. " The physician commented:

We do feel that in time, [Lauren] can continue to

develop strength. She may continue to be

somewhat unco ordinated or hypotonic, though we

do feel she will develop all skills as time continues.

24 . Beginning in 2017 , Lauren has also regularly received weekly speech

therapy. Lauren ' s speech therapy records note concerns regarding speech

language development, stuttering, intelligibility, and oral motor

planning/sequencing.

25 . B y October 10, 2019, her speech had improved. A Speech Language

Pathology Progress Report documents that Lauren displayed age appropriate

skills in " receptive language, play, [and] expre ssive language. " Further, a

speech therapy assessment from September 2020 reported :

Lauren is able to use sentences that are age

appropriate in length and complexity. She is able to

ask and answer questions appropriately, and

vocabulary is age appropriate, as well. Results of

informal assessment indicate receptive and

expressive language skills to be within normal

limits. È Lauren was observed to have a moderate

fluency disorder, which may be developmental in

nature.

Her speech language pathologist concl uded:

Overall, Lauren presents with language skills

which are within normal limits. Articulation skills

are currently mildly delayed. Fluency skills are

currently moderately impacted.

The pathologist also reported that Lauren ' s prognosis was " [g]ood for

c ontinued growth in speech/language and reading skills given

recommendations are followed. "

Lauren ' s Current Condition :

26 . Ms. Mayer described Lauren ' s current mental and physical

i mpairments, which both she and Mr. Zaifert consider to be " substantial. "

Ms . Mayer represented that Lauren's physical injuries includ e gross motor

delay . She further stated that Lauren is " always clumsy " and experiences

problems with coordination , fine motor skills , and grasping. Ms. Mayer

relayed that Lauren has difficulty jumpi ng and swimming . In addition,

Lauren's " awkward gait " causes her to trip and fall several times a day.

Ms. Mayer stated that Lauren has issues with daily living activities, such as

caring for and dress ing herself . Lauren will likely not play sports.

27 . Ms. Mayer further expressed that Lauren ' s mental injuries include a

neurological language disorder, which causes speech issues. Ms. Mayer

conveyed that the s peech evaluation at Johns Hopkins resulted in a diagnos is

of apraxia, which is a motor speech diso rder that makes speaking difficult.

Ms. Mayer claim ed that Lauren suffers from a mood disorder, which makes

daily living very difficult.

28 . Ms. Mayer advised that , despite her injuries, Lauren ' s speech and

motor skills ha ve improved with therapy. Current ly, Lauren is able to jump,

run, and swim without assistance. Lauren also enjoys playing on the stairs

and the slide on the playground. Lauren also demonstrates imaginative play

and can entertain herself.

29. However, while Lauren ' s condition has improved since her birth ,

Ms. Mayer declared that Lauren will never be fully normal. L auren will

continue to need occupational, physical, and speech therap y for the

foreseeable future.

30. Finally, Ms. Mayer relayed that Lauren currently attends preschool.

Howev er, Ms. Mayer expressed that due to her developmental delays , Lauren

has below average scores, and younger children were far ahead of her.

Consequently, Lauren will likely start kindergarten a year behind.

Ms. Mayer further stated that Lauren was evaluated by Hillsborough County

Public Schools for language and literacy concerns. Lauren was found to have

difficulty with participation and displayed poor effort and focus . Lauren also

e ngage s in impulsive behavior , which impede s her ability to problem solve

and follow instructions. At the present time, Lauren is on an independent

educational plan with th e Hillsborough County school district .

NICA ' s Position :

3 1 . NICA does not dispute Petitioners ' claim that Lauren suffered a n

injury during her birth that has lef t her permanent ly impaired. However,

NICA contends that Lauren ' s medical condition is not " substantial " enough to

meet the statutory definition of " birth - related neurological injury " in section

766.302 (2) .

3 2 . Upon receiving the Petition, NICA retained Don ald Willis, M.D., a

board - certified obstetrician/gynecologist specializing in maternal - fetal

medicine, as well as Luis E. Bello - Espinosa, M.D., a pediatric neurologist, to

review Lauren ' s medical records and condition. NICA sought to determine

whether Laur en suffered a " birth - related neurological injury , " as defined in

section 766.302(2). Specifically, NICA requested its medical consultants opine

whether Lauren experienced an injury to the brain or spinal cord caused by

oxygen deprivation or mechanical inj ury which occurred in the course of

labor, delivery, or resuscitation in the immediate post - delivery period. And, if

so, whether this injury rendered Lauren permanently and substantially

mentally and physically impaired.

33 . Dr. Willis performed a forensic review of Lauren ' s medical records and

noted the following:

The mother was admitted to the hospital at 39

weeks gestational age in active labor.

* * *

Delivery was by spontaneous vaginal birth and

stated to be atraumatic. È Despite being described

a s " neurologically devastated " at birth, the arterial

cord blood gas was reasonable È . Cooling protocol

was initiated due to suspected hypoxic ischemic

encephalopathy (HIE).

NICU admission evaluation noted the baby to be

unresponsive, hypotonic and with n o gag or suck

reflex.

* * *

The initial EEG was consistent with diffuse

encephalopathy and seizure activity. Clinical

seizure was also noted. MRI on DOL 7 had non -

specific abnormal signals in the cerebellum,

possibly related to HIE vs artifactual.

* * *

In summary, spontaneous vaginal delivery at term

was noted to be atraumatic. The baby had low

Apgar scores of 5/5/5, but a reasonable cord blood

pH of 7.15, suggesting the newborn depression was

not related to oxygen deprivation at birth. The

initia l EEG was abnormal with diffuse

encephalopathy, but MRI was essentially normal.

34 . Based on his review of the medical records, Dr. Willis opined that,

" There was no obstetrical event that resulted in loss of oxygen or mechanical

trauma to the baby ' s bra in during labor, delivery, or the immediate post -

delivery period. Although the child was subsequently found to have global

developmental delay, this does not appear to be birth related. "

35 . NICA also introduced (via deposition) the testimony of Dr. Bello -

Espinosa. Dr. Bello - Espinosa reached the same conclusion as Dr. Willis that

Lauren did not suffer injuries that qualify her for inclusion in the NICA Plan.

36 . Dr. Bello - Espinosa reviewed Lauren ' s medical records, as well as

conducted an independent medic al examination on December 11, 2020, which

included a comprehensive neurological examination. Dr. Bello - Espinosa ' s

examination occurred when Lauren was approximately four and one - half

years old and lasted approximately 40 minutes. Following his examination ,

Dr. Bello - Espinosa prepared a report, in which he recorded:

Lauren was quite alert and interactive. She smiled

and tracked. She had great attention. She grabbed

objects and toys with both hands without

difficulties. She had a dysfluent speech but no

droo ling. She following directions appropriately for

her age.

* * *

On the motor exam: She had mildly decreased tone

of her arms and legs, but the axial tone was

normal. È No tremors, or myoclonias were present.

Here strength was 5/5. She was able to sit, walk on

her own power without difficulties.

* * *

Gait: She walked with a narrow base. The [sic] was

no ataxia, or abnormal tiptoe walking. She walked

with mild inversion of her left toe. When I asked

[her] to run along the hallway, she ran

spontaneous ly, without falling . Her running was

mildly asymmetric with asymmetric arm swinging

and slight left foot dragging.

37 . Summarizing his findings, Dr. Bello - Espinosa wrote:

Lauren comprehensive neurological examination

today show s mild dysfluency of spee ch, but normal

receptive language, mild non - specific hypotonia, a

mild clumsy gait, but no major neurological

sequelae. She does not have evidence of brain

dysfunction, no evidence of abnormal upper or

lower motor neuron sig n s, nor extrapyramidal

signs, an d no signs of cerebellar dysfunction. She

does not have remote symptomatic seizures.

38 . Dr. Bello - Espinosa concluded, " The prognosis of full recovery is

excellent. Lauren has a normal estimated life expectancy. " Dr. Bello - Espinosa

then opined:

In review ing all the available documents, there are

no impairments consistent with an injury acquired

due to oxygen deprivation or mechanical injury

occurring during labor, delivery or the immediate

post - delivery period.

Considering the clinical presentation, I d o feel that

there is no evidence to recommend Lauren is

included in the NICA program.

39 . Regarding the degree of Lauren ' s injuries, in his deposition, Dr. Bello -

Espinosa opined, within a reasonable degree of medical probability, that

Lauren " did not have a substantial impairment, " either mentally or

physically.

40 . Expanding on his medical opinion, Dr. Bello - Espinosa commented that

the word " substantial " is not a specific term he uses in his clinical practice.

Dr. Bello - Espinosa explaine d :

We would use t he term severe or catastrophic [,] so

she did not have any of those È neither sever e

neurological outcome were present.

4 1. On the other hand, Dr. Bello - Espinosa acknowledged that Lauren

received an early diagnosis of hypoxic - ischemic encephalopathy, which he

defined as " a lack of oxygen to the brain and lack of blood supply to the

brain. " However, Dr. Bello - Espinosa did not believe that the medical records

he reviewed confirm ed that Lauren experienced HIE as a result of something

related to her labor or de livery. Specifically, Dr. Bello - Espinosa testified that

Lauren did not have MRI or EEG findings that indicate HIE. He also noted

that Lauren did not have arterial blood gas changes or other systemic

changes that would point to HIE.

42 . Dr. Bello - Espinosa w as also cognizant that Lauren ' s medical records

included potential " indicators " of some form of neurological injury. He

recognized that Lauren was noted to have hypotonia (low tone) and seizures

in the NICU. She also had no gagging or sucking reflex , and h er speech was

" not as fluent as it should be. " He further commented that Lauren ' s Apgar

scores of 5/5/5 6 we re " abnormal. " In light of these statements, Dr. Bello -

Espinosa conceded that Lauren " may not be 100 percent of what we suspect

at development for [h er] age. " He further commented that Lauren would

likely benefit from ongoing occupational , physical , and speech therapy in the

future. However, Dr. Bello - Espinosa stated that children who experience HIE

at birth are not automatically left with permanent an d substantial

impairments and can live normal, healthy lives.

43. Dr. Bello - Espinosa was further aware that a neurologist diagnosed

Lauren with hypotonic cerebral palsy, which he explained causes a child to

have " decreased tone of the arms or the legs, as well as the trunk as a result

of the injury to the brain. " However, d espite recognizing th e " possib i l ity " that

Lauren ' s injuries are due to a neurological deficit, Dr. Bello - Espinosa firmly

characterized Lauren ' s hypotonia as " mild, " not moderate or severe .

Additionally, w hile he " respected " the neurologist ' s findings, Dr. Bello -

Espinosa expressed that in his personal opinion , Lauren does not suffer from

cerebral palsy. F ollowing his independent medical examination, Dr. Bello -

6 A score of five out of ten at one minute after birth, five minutes after birth, and ten minutes

after birth.

Espinosa reported that Lauren f ollowed directions appropriate for her age,

had good attention, and ran without falling. Based on his observation,

Dr. Bello - Espinosa determinedly expressed that Lauren " does not have a

substantial physical impairment. "

44 . The evidence adduced at the fin al hearing reveals no medical opinions

disputing the findings and impressions of Dr. Willis and Dr. Bello - Espinosa .

Their conclusions are credible and are credited.

45 . Based on the competent substantial evidence in the record, the

preponderance of the ev idence does not establish that Lauren suffered a

" birth - related neurological injury , " as defined in section 766.302(2). While

Lauren's medical records show that she did experience some injury at the

time of her birth, the evidence does not support a findin g that Lauren has

sustain ed an injury to her brain or spinal cord that has rendered her

" permanently and substantially mentally and physically impaired. " 7

C ONCLUSIONS O F L AW

46 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding pursuant to sections

766.301 through 766.316. The undersigned, as an Administrative Law Judge

( " ALJ " ), has " exclusive jurisdiction to determine whether a claim filed under

NICA is compensable. " §§ 766.301(1)(d), 766.3 04, and 766.311(1), Fla. Stat.

47 . I n 1988, the Florida Legislature created the Plan as a means to

alleviate the high costs of medical malpractice insurance for physicians

7 NICA further maintains that the evidence do es not support a findin g that the impairment

from which Lauren suffers was " caused by oxygen deprivation or mechanical injury occurring

during the course of labor, delivery or during resuscitation in the postdelivery period. "

NICA ' s argument is well made as neither the medical r ecords nor expert testimony

introduced at the final hearing expressly link her injuries to a lack of oxygen or mechanical

injury during birth. However, because the competent substantial evidence does not establish

a " substantial " physical and mental impair ment, it is unnecessary to delve into the available

evidence to discern the root cause of Lauren ' s injuries. The ultimate conclusion would remain

the same, that Lauren did not suffer a " birth - related neurological injury , " as that term is

defined in section 766.302(2).

practicing obstetrics. Bennett v. St. Vincent ' s Med. Ctr., Inc. , 71 So. 3d 828,

83 6 (Fla. 2011); and Univ. of Miami v. Ruiz , 164 So. 3d 758, 764 (Fla. 3d

DCA 2015). The Plan ' s purpose is to " provid[e] compensation, irrespective of

fault, for birth - related neurological injury claims. " § 766.303(1), Fla. Stat.

Specifically, the Legislatur e established the Plan:

for a limited class of catastrophic injuries that

result in unusually high costs for custodial care and

rehabilitation.

§ 766.301(2), Fla. Stat., and Fla. Birth - Related Neuro. Injury Comp. Ass ' n v.

Fla. Div. of Admin. Hearings , 686 So. 2d 1349, 1354 (Fla. 1997).

4 8 . When considering whether a claim is compensable under the NICA

Plan, section 766.309(1) charges the ALJ to 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 hospital; or by a certified

nurse midwife in a tea ching hospital supervised by

a participating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital; and

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

pursuant to s. 766.31.

(d) Whether, if rais ed by the claimant or other

party, the factual determinations regarding the

notice requirements in s. 766.316 ar e satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations.

4 9 . The term " birth - related neurological injury " is defined in section

766.302(2) to mean:

injury to the brain or spinal cord of a live infant

w eighing at least 2,500 grams for a single gestation

... 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.

5 0 . " The [NICA] Statute is written in the conjunctive and can only be

interpreted to require permanent and substantial impairment that has both

physical and mental elements. " Fl a. Birth - Related Neuro. In jury Comp. Ass ' n ,

686 So. 2d at 1356.

5 1. The Plan provides limited remedies as a statutory substitute for

common law rights and liabilities. Therefore, the NICA statute " should be

strictly construed to include only those subjects clearly embraced within its

terms. " Bennett , 71 So. 3d at 836; and Fl a. Birth - Related Neuro. Injury Comp.

Ass ' n , 686 So. 2d at 1354.

52. Upon determining that a claim qualif ies for compensation, section

766.31(1) directs:

Upon determining that an infant has sustained a

birth - rel ated neurological injury and that

obstetrical services were delivered by a

participating physician at the birth, the

administrative law judge shall make an award

providing compensation for the following items

relative to such injury:

5 3 . On the other han d, if a claim does not qualify for an award of

compensation, section 766.309(2) instructs:

If the administrative law judge determines that the

injury alleged is not a birth - related neurological

injury or that obstetrical services were not

delivered by a pa rticipating physician at the birth,

she or he shall enter an order and shall cause a

copy of such order to be sent immediately to the

parties by registered or certified mail.

54 . The burden of proof in this matter falls on Petitioners, as the

" claimants, " to prove that Lauren is covered by the NICA Plan. § 766.302 ,

Fla. Stat.; and Balino v. Dep ' t of Health & Rehab. Servs. , 348 So. 2d 349, 350

(Fla. 1st DCA 1977) ( " The general rule is, that as in court proceedings, the

burden of proof, apart from statute, is on the party asserting the affirmative

of an issue before an administrative tribunal. " ). If Petitioners demonstrate

the statutory prerequisites for NICA benefits, a rebuttable presumption of

compensation arises in their favor. Bennett , 71 So. 3d at 845; an d Fla. Health

Scis. Ctr., Inc. v. Div. of Admin. Hearings , 974 So. 2d 1096, 1099 (Fla. 2d

DCA 2007).

55 . The preponderance of the evidence standard is applicable to this

matter. See § 120.57(1)(j), Fla. Stat.

56 . Turning to the injury in this case, the s pecific issue address ed in this

F inal O rder is whether Lauren suffered a " substantial " mental and physical

impairment.

57. NICA argues that the Plan cover s only " catastrophic " injuries, not

every injury that might occur during childbirth. For support, NIC A refers to

the Legislature ' s expressed intent in section 766.301(2) to restrict coverage to

" a limited class of catastrophic injuries . " Therefore, the term " substantial " as

used to characterize a mental and physical impairment that qualifies as a

" birth - r elated neurological injury " in section 766.302(2) should only refer to

" catastrophic " medical conditions, as opposed to injuries that might be

described as " mild " or " moderate. "

58. Petitioners argue that the term " substantial " in section 766.302(2)

should not be strictly circumscribed by the word " catastrophic. " Instead,

Petitioners urge that, to determine a " substantial mental and physical

impairment, " NICA should apply a standard similar to that used in the

Americans with Disabilities Act ( " ADA " ) found i n 42 U.S.C. § 121 01, et seq.

59. Under the ADA, to show a " disability , " an individual must

demonstrate that his or her impairment substantially limits one or more

major life activities. 42 U.S.C. § 12101 (1). A " major life activity " may include,

but is not limited to , " caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending, speaking,

breathing, learning, reading, concentrating, thinking, communicating, and

working. " 42 U.S.C. § 12102(2)(A) ; see als o Hilburn v. Murata Elecs. N. Am.,

Inc ., 181 F.3d 1220, 1226 (11th Cir. 1999) (to establish a disability, a plaintiff

must show that an impairment substantially limits one or more major life

activities) ; and United States Equal Employment Opportunity Comm ' n v.

St. Joseph ' s Hosp., Inc ., 842 F.3d 1333, 1344 (11th Cir. 2016)(Major life

activities include, but are not limited to " sleeping, walking, standing, lifting,

... [and] bending. " ) . Petitioners assert that Lauren ' s physical and mental

health impairments si gnificantly affect several of her major life activities

compared to what the average person in the general population can perform .

Therefore, Petitioners argue that her injuries are " substantial. "

60. In assessing Lauren's injuries, the undersigned notes that neither the

term " catastrophic " in section 766.301(2) , nor the word " substantial " as used

in section 766.302(2) , are def ined in the NICA statute . Florida case law

provides that wh en a term is not defined within a statute, a fundamental

construction to ol requires giving a statutory term its plain and ordinary

meaning. When necessary, the plain and ordinary meaning may be

ascertained by reference to the dictionary definition. See Greenfield v.

Daniels , 51 So. 3d 421, 426 (Fla. 2010) and Raymond James Fin . Servs. v.

Phillips , 110 So. 3d 908, 910 (Fla. 2d DCA 2011) ; see also Orlando Reg ' l , 997

So. 2d at 431 (which relies on a dictionary definition to interpret the terms

" resuscitation " and " immediate " in section 766.302(2)); and Dianderas v.

Florida Birth Re lated Neurological , 973 So. 2d 523, 527 (Fla. 5th DCA

2007) (which refers to the dictionary to define the terms " clear, " " concise, " and

" explanation " in section 766.316.) Fl a. Birth - Related Neuro. Injury Comp.

Ass ' n. , further provides that when in terpreting the NICA statute :

consideration must be accorded not only to the

literal and usual meaning of the words, but also to

their meaning and effect on the objectives and

purposes of the statute ' s enactment. È Indeed, " [i]t

is a fundamental rule of statutory construction that

legislative intent is the polestar by which the court

must be guided [in construing enactments of the

legislature]. "

Fl a. Birth - Related Neuro. Injury Comp. Ass ' n. , 686 So. 2d at 1354. The Fl a.

Birth - Related Neuro. Injury Comp. Ass ' n. cou rt also noted that the

underlying finding by the ALJ that the child ' s injuries met the definition of a

" birth - related neurological injury " was " supported by competent and

substantial evidence. " Fl a. Birth - Related Neuro. Injury Comp. Ass ' n. , 686 So.

2d at 1 356.

61 . As additional guidance for interpreting chapter 766, the court in

Adventist Health Sys./Sunbelt, Inc. v. Florida Birth - Related Neurological

Injury , 865 So. 2d 561, 568 - 69 (Fla. 5th DCA 2004), in affirming an ALJ ' s

decision that a child did not suf fer a " substantial mental impairment, " stated :

The legislature left the application of the terms

they used to the administrative law judges

designated by statute to hear these claims and to

apply the expertise they develop in carrying out

this task to dete rmine from the evidence adduced

in each case whether the test for NICA is met.

* * *

In cases such as the one before us, the ALJ, as fact

finder, brings his own background, training,

experience and expertise to the task of weighing

and evaluating very sophisticated evidence. The

child ' s advocate likewise brings his own

communication and strategic skills to the fact -

finding process; and finally, the evidence in each

case will vary in its power to persuade. This will be

especially true in cases where the opinions of

experts are considered.

A s in Fl a. Birth - Related Neuro. Injury Comp. Ass ' n . , the Adventist court

" looked to see whether competent substantial evidence supports the ALJ ' s

decision. " Adventist , 865 So. 2d at 569.

62. The words " catastrophic " an d " substantial " have plain and ordinary

meanings. " Catastrophic " is defined as " something that is very bad . " The

term " substantial " is defined as " large in amount or degree . " Macmillan

Dictionary , at https://www.macmillandictionary.com . The undersigned

con cludes that these definitions exclude injuries that are considered " mild " or

" moderate. "

63. Applying the plain meaning of the applicable statutes, as well as the

guidance from the above quoted cases, the competent substantial evidence in

the record evince s that the mental and physical impairments from which

Lauren currently suffers are not the type of " catastrophic " or "substantial"

injuries for which compensation under the NICA plan is available.

64 . In attempting t o establish the substance of Lauren's m ental and

physical injuries, Petitioners focus on several key entries in Lauren's medical

records, including:

a. Lauren's discharge summary described her as " neurologically

devastated " in the moments following her delivery.

b. Lauren was transferred to the NICU within hours of her birth due to

her " neurologic status and unresponsiveness. "

c. Lauren was diagnosed with HIE, which Dr. Bello - Espinosa explained

results from oxygen deprivation to the brain.

d. Lauren experienced seizures until she was seven mont hs old.

e . Lauren was diagnosed with hypotonic cerebral palsy (low muscle tone).

Her medical records also include diagnoses of apraxia of speech, phonological

disorder, fluency disorder, and an unspecified mood disorder.

f. Lauren has participated in, and will continue to receive, occupational,

physical, and speech therapy.

g. Lauren has difficulty with daily living activities , such as dressing and

self - care, as well as motor coordination, balance, and strength deficits .

65 . In contrast , a greater percenta ge of Lauren's medical and therapeutic

records describe her medical impairments as " mild " or " moderate. " Pertinent

statements report:

a. Lauren's discharge summary on May 31, 2016, characterized her HIE

as " moderate. "

b. Lauren met five of six criteria fo r " moderate " encephalopathy.

c. Lauren's medical condition improved through her initial, seven - day

hospital stay, and she was noted to have " normal brain development,

formation, and gray - white matter differentiation. " An MRI scan from seven

days after birt h was reported as " normal. "

d. Lauren's most recent physical and occupational therapy records

characterize her rehabilitation potential as " good. "

e . An e ntr y from a neuropsychological evaluation from January 2021

commented that Lauren showed " mild deficit s " in visual spatial skills and

fluid reasoning. "

f. A record from February 3, 2021, from Johns Hopkins reported that

Lauren suffered from " mild " hypotonic cerebral palsy. The record included a

conclusion that Lauren " will develop all skills as time conti nues. "

g. Lauren's speech pathologist commented that her prognosis was " [g]ood

for continued growth in speech/language and reading skills. "

66. Moreover, the conclusions of Dr. Willis and Dr. Bello - Espinosa, the

only medical opinions offered by the partie s, persuasively support the

position that Lauren does not meet the statutory definition for NICA

compensation. Dr. Willis opined that that there was no obstetrical event that

resulted in loss of oxygen or mechanical trauma to Lauren's brain during

labor, d elivery or the immediate post - delivery period.

67. Dr. Bello - Espinosa determined that Lauren is not substantially

mentally or physically impaired. Instead, based on his comprehensive review

of Lauren's medical records, as well as his own medical examinati on,

Dr. Bello - Espinosa specifically described Lauren's current mental and

physical impairments as " moderate . " Following his examination of Lauren on

December 11, 2020 , Dr . Bello - Espinoza observed " mildly decreased tone of the

arms and legs , " as well as " mi ld disfluency of speech, mild non - specific

hypotonia, and a mild clumsy gait. "

68. In addition, Dr. Bello - Espinosa found that Lauren ' s therap y records

suggest that Lauren's current deficits are improving , or will improve with

time. Dr. Bello - Espinosa perso nally believed that Lauren's prognosis f or full

recovery is " excellent. "

69 . T he findings and opinions of Dr. Willis and Dr. Bello - Espinosa are

credible and persuasive.

70. Accordingly, based upon all available evidence in the record, the most

persuasive evidence and testimony leads to a finding that Lauren did not

suffer a " substantial " mental and/or physical injury that would qualify her for

benefits under the NICA Plan. Therefore, the undersigned concludes that

Lauren did not incur a " birth - related neu rological injury , " as defined in

section 766.302(2) . Consequently, Lauren is not eligible for coverage under

the NICA Plan.

D ISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED :

1. Petitioners ' Petition for compensa tion under the NICA Plan is D ENIED ,

with prejudice.

D ONE A ND O RDERED this 20th day of October , 2021 , in Tallahassee, Leon

County, Florida.

S

J. B RUCE C ULPEPPER

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of October , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

Consumer Services Unit Agency for Hea lth Care Administration

Department of Health 2727 Mahan Drive, Mail Stop 1

4052 Bald Cyp ress Way, Bin C - 75 Tallahassee, Florida 32308

Tallahassee, Florida 32399 - 3275 (Certified No. 7020 2450 0000 1058 5250)

(Certified No. 7020 2450 0000 1058 5236)

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7020 2450 0000 1058 5267)

(Certified No. 7020 2450 0000 1058 )

Kenney Shipley, Executive Director

Jacqueli ne Mayer Florida Birth - Related Neurological

15608 S tarling W ater D rive Injury Compensation Association

Lithia, Florida 33547 Post Office Box 14567

(Certified No. 7020 2450 0000 1058 5274) Tallahassee, Florida 32317

(Certified No. 7020 2450 0000 1058 5281)

Jonathan N. Zaifert

1580 West Cleveland Street Brooke M. Gaffney, Esquire

Tampa, Florida 33606 S mith, Stout, Bigman & Brock, P.A.

(Certified No. 7020 2450 0000 1058 5243) 444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(Certified No. 7020 2450 0000 1058 5298)

N OTICE O F 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 Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original notice of

administrative appeal with the a gen cy 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).