20-004358N Kathleen Crowley And Toby Crowley, Individually And As Parents And Next Friends Of Koby Crowley, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 26, 2021.

Summary: Summary Final Order granted concluding that the minor did not sustain a birth-related neurological injury, and, therefore, was not entitled to benefits under the Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K ATHLEEN C ROWLEY A ND T OBY C ROWLEY ,

I NDIVIDUALLY A ND A S P ARENTS A ND N EXT

F RIENDS OF K OBY C ROWLEY , A M INOR ,

Petitioners , Case No. 20 - 4358N

vs.

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 RespondentÔs Unopposed

Motion for Summary Final Order (RespondentÔs M otion), filed March 1, 2021.

S TATEMENT OF T HE C ASE

On September 21, 2020, P etitioner s , Kathleen Crowley and Toby Crowley,

individually and as parents and next friends of Koby Crowley (Koby), a

minor, filed a Petition for NICA Benefits (Petition) with the Division of

Administrative Hearings (DOAH), for a determination of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan

(Plan). 1 The Petition named Judette Louis, M.D., a s the physician who

provided obstetric services for t he birth of Koby at Tampa General Hospital,

in Tampa, Florida, on January 10, 2020.

1 Petitioners filed an Amended Petition for NICA Benefits on October 2, 2020. The

amendment addressed a scrivenerÔs error.

On October 7, 2020, DOAH mailed a cop y of the Petition to Respondent,

Dr. Louis , and Tampa General Hospital via certified mail. Respondent was

served with the same on Oct ober 8, 2020.

After granting an extension of time to respond to the Petition on

December 22, 2020, Respondent filed its Response to Petition for Benefits,

wherein Respondent maintained that the claim was not compensable because

Koby did not sustain a Ñb irth - related neurological injury,Ò as defined by

section 766.302 (2) , Florida Statutes . Respondent request ed 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 December 28, 2020, the undersigned issued an Order Requiring

Response directing the parties to communicate and advise whether a final

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

conduct the hearing a nd several mutually agreeable dates to conduct the

hearing . In response, Florida Birth - Related Neurological Injury

Compensation Association ( NICA ) , on January 11, 2021, filed a status report

representing that Petitioners were not contesting RespondentÔs

de termination of noncompensability, and that Respondent anticipated filing

an unopposed motion for summary final order.

RespondentÔs Motion was filed on March 1, 2021. Said motion avers that

Petitioners do not oppose the motion or the requested relief.

F INDINGS OF F ACT

1. Koby was born on January 10, 2020, at Tampa General Hospital, in

Tampa, Florida.

2. Koby was a single gestation and his weight at birth exceeded 2 , 500

grams.

3. Obstetrical services were delivered by a participating physician,

Dr. Lou is, in the course of labor, delivery, or resuscitation in the immediate

post - delivery period in a hospital, Tampa General Hospital.

4. As set forth in greater detail below, the unrefuted evidence establishes

that Koby did not sustain a Ñbirth - related neur ological injury,Ò as defined by

section 766.302(2).

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

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

medical records of Ms. Crowley and Koby and opine as to whether Koby

sustained an injury to his brain or spinal cord 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.

6. In his report , date d October 19, 2020, Dr. Willis summarized his

findings and opinions as follows:

In summary, pregnancy was complicated by a

known fetal congenital birth defect, Omphalocele.

Delivery by repeat Cesarean section was done in

early labor with rupture of the m embranes. The

baby was depressed at birth with cord blood pH of

6.74 and base excess of - 21. Despite the acidosis at

birth, MRI on DOL 7 was normal.

There was some degree of oxygen deprivation at

birth, as documented by the cord blood pH of 6.4.

However, MRI on DOL 7 was normal, suggesting

the oxygen deprivation did not result in identifiable

brain injury. Based on available medical records, it

does not appear the child suffered a birth related

brain injury.

7. In his supporting affidavit, Dr. Willis op ines, to a reasonable degree of

medical probability, that while Koby suffered some degree of oxygen

deprivation at birth, it does not appear the child suffered a birth related

brain injury.

8. Respondent also retained Luis E. Bello - Espinosa, a pediatric

ne urologist, to review the medical records of Ms. Crowley and Koby, and to

conduct an Independent Medical Examination (IME) of Koby. The purpose of

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

permanent and substantial mental and physical impairment as a result of an

injury to the brain or spinal cord caused by oxygen deprivation or mechanical

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

delivery period.

9 . Dr. Bello - Espinosa reviewed the pertinent medic al records and, on

December 11, 2020, conducted the IME. In his report, prepared the same day

as the examination, he summarized his findings and opinions as follows:

Koby is an eleven month and three - week - old by ex -

35 week premature born via C - section wit h clear

amniotic fluid after PROM. At birth, he was

diagnosed with an omphalocele. A diagnosis of

moderate hypoxic encephalopathy was made given

his initial Apgar score, arterial blood gases,

and neurological examination. Therapeutic

hypothermia was implemented despite his neonatal

age, given his clinical presentation. During his

NICU stay, he d id not have acute electroclinical or

electrographic seizures. An MRI of the brain

obtained on day 7 th of life was normal. Since birth,

he has benefited from P T and OT. His

comprehensive neurological examination today is

normal.

10 . Dr. Bello - Espinosa opined that Koby does not suffer from a substantial

and permanent mental and physical impairment. Additionally, he opined

that Koby did not acquire an injury to the brain or spinal cord during labor,

delivery, or the immediate post - delivery period. Accordingly, he did not

recommend Koby be considered for inclusion in the Plan. Dr. Bello - Espinosa

confirms those opinions in his supporting affidavit.

1 1 . The undisput ed and unopposed findings and opinions of Drs. Willis

and Bello - Espinosa are credited. The undersigned finds that Koby did not

sustain an injury to the brain or spinal cord 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 him

permanently and substantially mentally and physical impaired.

C ONCLUSIONS OF L AW

1 2 . DOAH has jurisdiction over the parties to and the subject matter of

t hese proceedings. §§ 766.301 - 766.316, Fla. Stat .

1 3 . The Plan was established by the Legislature Ñfor the purpose of

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

injury claimsÒ relating to births occurring on or a fter January 1, 1989.

§ 766.303(1), Fla. Stat .

1 4 . 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 Ñ45 days

from the date of service of a complete claim ... 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.Ò § 766.305(4), Fla.

Stat .

1 5 . 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 disputed, 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.

1 6 . 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 mechani cal injury and that

the infant was thereby rendered permanently and

substantially mentally and 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 o bstetrical 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 teaching hospital supervised by

a participating phys ician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital.

§ 766.309(1), Fla. Stat .

1 7 . The term Ñbirth - related neurological injuryÒ is defined in

section 766.302(2) as follows:

ÑBirth - related n eurological injuryÒ means injury to

the brain or spinal cord of a live infant weighing at

least 2,500 grams for a single gestation or, in the

case of a multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in the

course of labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital, which

renders the infant permanently and substantially

mentally and physically impaired.

1 8 . If the ALJ determines that the injury is not a birth - related

neurological injury, or that obstetrical 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.

1 9 . The un disputed and unopposed e vidence establishes that there was

not an injury to KobyÔs brain caused by oxygen deprivation or mechanical

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

immediate post - delivery period in a hospita l, which rendered him

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

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

injury, as defined in section 766.302(2), and, therefore, is not eligible for

benef its under the Plan.

C ONCLUSION

Based on the Findings of Fact and the Conclusions of Law, it is O RDERED

that RespondentÔs Motion is granted and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 26th day of March, 2021 , in Tallahassee, Leon

C ounty, Florida.

S

T ODD P. R ESAVAGE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of March, 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller, Secretary

Consumer Services Unit Health Quality Assurance

Department of Health Agency for Health Care Administration

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

Tallahassee, Florida 32399 - 3275 Tallahassee, Florida 32308

(Certified No. 7020 2450 0002 1970 5428) (Certified No. 7020 2450 0002 1970 5442)

Allison C. McMillen, Esquire Judette Louis, M.D.

Bounds La w Group 6th Floor

1751 North Park Avenue 2 Tampa General Circle

Winter Park, Florida 32751 Tampa, Florida 33606

(Certified No. 7020 2450 0002 1970 5466 ) (Certified No. 7020 2450 0002 1970 5497 )

Brooke M. Gaffney, Esquire Kenney Shipley, Executive Director

Smith, Stout, Bigman & Brock, P.A. Florida Birth - Relat ed Neurological

Suite 900 Injury Compensation Association

444 Seabreeze Boulevard Suite 1

Daytona Beach, Florida 32118 2360 Christopher Place

(Certified No. 7020 2450 0002 1970 5473 ) Tallahassee, Florida 32308

(Certified No. 7020 2450 0002 1970 5459)

Tampa General Hospital

Attention: Risk Management

1 Tampa General Circle

Tampa, Florida 33606

(Certified No. 7020 2450 0002 1970 5480)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law judge shall b e 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 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).