20-004632N David Peter Andris And Jessey Lauren Howard Andris, On Behalf Of And As Parents And Natural Guardians Of Tobias Andris, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 5, 2021.

Summary: Child did not suffer a ?birth-related neurological injury? as defined in section 766.302(2). The impairment did not occur during the labor, delivery, or immediate postdelivery period. Therefore, the child is not eligible for benefits under the NICA Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D AVID P ETER A NDRIS A ND J ESSEY

L AUREN H OWARD A NDRIS , O N B EHALF OF

A ND A S P ARENTS A ND N ATURAL

G UARDIANS OF T OBIAS A NDRIS , A M INOR ,

Petitioners ,

vs. Case No. 20 - 4632N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPE NSATION A SSOCIATION ,

Respondent,

and

S UZETTE R ODRIGUEZ , M.D.,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came for consideration on a Motion for Summary Final Order

filed by Respondent, Florida Birth - Related Neurological Injury Compensation

Association ( " NICA " ), on February 9, 2021.

S TATEMENT OF T HE C ASE

On September 28, 2020, Petitioners, David Peter Andris and Jessey

Lauren Howard An dris, on behalf of and as parents and natural guardians of

Tobias Andris ( " Tobias " ), a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et s eq. (the " Petition " ), with the Division of

Administrative Hearings ( " DOAH " ) for dete rmination of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan (the

" Plan " ).

The Petition identified Suzette M. Rodriguez, M.D., as the medical

professional who provided obstetrical services at Tobias ' s birth on May 3,

20 19, at Memorial Hospital West ( " Memorial " ) in Pembroke Pines, Florida.

DOAH served Dr. Rodriguez with a copy of the Petition on October 28,

2020, and served Memorial that same date. DOAH also served NICA with a

copy of the Petition on October 28, 2020.

Dr. Rodriguez moved to intervene in this matter on November 11, 2020,

which was granted.

On December 29, 2020, NICA filed its response to the Petition, taking the

position that Petitioners ' claim is not compensable under the Plan. NICA

requested DOA H schedule an evidentiary hearing to determine

compensability.

On February 9, 2021, NICA filed a Motion for Summary Final Order

requesting the Administrative Law Judge ( " ALJ " ) enter a summary final

order finding the claim not compensable under the NICA statute because

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

section 766.302(2) Florida Statues, and, therefore, the claim is not

compensable under the Plan as a matter of law. As of the date of this Order,

Petitioners have not responded to NICA ' s motion.

F INDINGS OF F ACT

1. Tobias was born on May 3, 2019, at Memorial located in Pembroke

Pines, Florida.

2. The Petition alleges that Suzette M. Rodriguez, M.D., was the medical

professional who participated in Tobias ' s birth. No evidence was presented to

the ALJ establishing whether Dr. Rodriguez was a " participating physician "

under the Plan at the time Tobias was born. See §§ 766.302(7) and

766.314(4), Fla. Stat.

3. Upon receiving the Petition, NICA retained Donald Willis, M .D., a

board - certified obstetrician/gynecologist specializing in maternal - fetal

medicine, as well as Michael S. Duchowny, M.D., a pediatric neurologist, to

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

whether Tobias suffered a " b irth - related neurological injury " as defined in

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

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

oxygen deprivation or mechanical injury which occurred in the course of

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

so, whether this injury rendered Tobias permanently and substantially

mentally and physically impaired.

4. Dr. Willis reviewed Tobias ' s medical records and op ined, within a

reasonable degree of medical probability:

The maternal history of decreased fetal movement

prior to delivery and an abnormal [fetal heart rate]

tracing for admission with no acidosis on the initial

blood gas studies would be most consistent with a

stroke (brain injury) occurring prior to birth.

There was no obstetrical event that resulted in loss

of oxygen or mechanical trauma to the baby ' s brain

during labor or delivery. The baby suffered a stroke

due to an occluded right carotid artery. It appears

this event occurred prior to delivery. The mother

was not in labor.

5 . Dr. Duchowny also reviewed Tobias ' s medical records, as well as

personally examined Tobias (via Zoom video conference) on December 22,

2020. Dr. Duchowny noted that:

Tobias wa s diagnosed with cerebral palsy at age 1

year. He has extremely limited motor functions

although his left hand is better than his right. He

moves all limbs but none are functional.

* * *

Tobias had seizures in the NICU and remains on

anti - seizure medic ations. He was formerly

suspected of having infantile spasms but his EEG

did not reveal hypsarrhythmia.

* * *

Tobias has not encountered respiratory difficulties

or pneumonia. He has not been hospitalized since

birth. His head has grown normally.

* * *

In summary, Tobias ' s examination reveals findings

consistent with a substantial mental and motor

impairment. He has four - limb spasticity, greater on

the right, axial hypotonia, generalized hyper -

reflexia with pathological reflexes and absent

verbal co mmunication.

* * *

A review of Tobias ' s medical records reveals that he

was born at Memorial West Hospital at 38 4/7

week ' s gestation. His mother had noted decreased

fetal movement the day before admission and

presented for evaluation. Following a non -

reassuring fetal heart rate assessment Tobias was

delivered by Caesarian section. He weighed 2.87

kg. at birth and had Apgar scores of 4, 5, and 9 at 1,

5 and 10 minutes of life.

* * *

Seizures were noted on the first day of life and

treated with Keppr a and phenobarbital. Tobias was

discharged from the NICU after two weeks.

* * *

An MRI scan of the brain obtained on May 4th

(DOL # 1) revealed diffuse [Hypoxic Ischemic

Encephalopathy] findings involving both cerebral

hemispheres in the right and left anterior and

middle cerebral artery and the right internal

carotid territories. È Follow - up MR imaging

revealed the presence of a thrombus in the right

common and internal carotid arteries with

decreased flow in the right middle cerebral artery

and stenos is of the left middle cerebral artery with

retrograde perfusion of the right internal carotid

artery.

6 . Following his independent medical examination, Dr. Duchowny opined,

within a reasonable degree of medical probability, that, " Despite Tobias ' s

substan tial delays, a review of the medical records reveals that his deficits

were likely acquired prior to birth and were not due to mechanical injury or

oxygen deprivation during labor, delivery, or the post - delivery period. "

Therefore, Dr. Duchowny concluded : " I am not recommending that Tobias be

considered for inclusion into the NICA program. "

7 . A review of the records filed in this matter reveals no contrary evidence

to dispute the findings and opinions of Dr. Willis and Dr. Duchowny. Their

opinions are cred ible and persuasive.

C ONCLUSIONS OF L AW

8 . The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding pursuant to sections 766.301 -

766.316. The undersigned, as an A dministrative L aw J udge, has " exclusiv e

jurisdiction to determine whether a claim filed under [NICA] is

compensable. " §§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stat.

9. The Florida Legislature established the Plan " for the purpose of

providing compensation, irrespective of fault, for b irth - related neurological

injury claims. " § 766.303(1), Fla. Stat.

10. To seek compensation under the Plan, a legal representative on behalf

of an injured infant files a claim with DOAH. §§ 766.302(3) and 766.305(1),

Fla. Stat. NICA, which administers the Plan, then has " 45 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. " § 766.305(4 ), Fla. Stat.

11. If NICA determines that the injury alleged in a claim is a compensable

birth - related neurological injury, it may award compensation to the claimant,

provided that the award is approved by the ALJ to whom the claim has been

assigned. § 766 .305(7), Fla. Stat.

12. In this matter, however, NICA determined that Petitioners ' claim is

not compensable under the Plan. Therefore, NICA filed the Motion for

Summary Final Order, requesting a finding that Tobias is not eligible for

NICA Plan benefits.

13. In reviewing the compensability of a claim, section 766.309(1) directs

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 teaching hospital supervised by

a participating physician in t he 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.

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

766.302( 2) as:

injury to the brain or spinal cord of a live infant

weighing 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 postdelive ry period

in a hospital, which renders the infant permanently

and substantially mentally and physically

impaired.

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

interpreted to require permanent and substantial impairment that has bo th

physical and mental elements. " Fla. Birth - Related Neurological Injury Comp.

Ass ' n v. Fla. Div. of Admin. Hearings , 686 So. 2d 1349, 1356 (Fla. 1997).

1 6 . In reviewing the injury in this matter, the preponderance of the

evidence does not establish that T obias sustained a " birth - related

neurological injury " as defined in section 766.302(2). Both Dr. Willis and

Dr. Duchowny noted Tobias ' s grave injury. However, they credibly opined

that Tobias ' s impairment did not occur during labor, delivery, or

resuscitat ion in the immediate postdelivery period. Dr. Willis further

remarked that Tobias suffered a stroke prior to delivery due to an occluded

right carotid artery.

1 7 . Therefore, based on all the available evidence in the record, the

undersigned determine s that Tobias has not suffered a " birth - related

neurological injury " and is not eligible for NICA benefits.

D ISPOSITION

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

O RDERED that the Petition is dismissed, with prejudice.

D ONE A ND O RDERED this 5th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

J. B RUCE C ULPEPPER

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 5th day of March , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone M arstiller, Secretary

Consumer Services Unit Agency for Health Care Administration

Department of Health 2727 Mahan Drive, Mail Stop 1

4052 Bald Cypress Way, Bin C - 75 Tallahassee, Florida 32308

Tallahassee , Florida 32399 - 3275 (Certified No. 7019 1640 0000 2306 2944 )

(Certified No. 7019 1640 0000 2306 2982 )

Kenney Shipley, Executive Director

David Peter Andris Florida Birth - Related Neurological

Jessey Lauren Howard Andris Injury Compensation Asso ciation

1341 Southwest 151 Avenue Suite 1

Sunrise, Florida 33326 2360 Christopher Place

(Certified No. 7019 1640 0000 2306 2975 ) Tallahassee, Florida 32308

(Certified No. 7019 1640 0000 2306 2937 )

Julia M. Ingle, Esquire

Lubell & Rosen, LLC Tana D. Storey, Esquire

Suite 900 Rutledge Ecenia, P.A.

200 South Andrews Avenue Suite 202

Fort Lauderdale, Florida 33301 119 South Monroe Street

(Certified No. 7019 1640 0000 2306 2968 ) Tallahassee, Florida 32301

(Certified No. 7019 1640 0000 2306 2920 )

Memorial Hospital West

Attention: Risk Management

703 North Flamingo Road

Pembroke Pines, Florida 33028

(Certified No. 7019 1640 0000 2306 2951 )

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), Florida Statutes.

Review proceedings are governed by the Florida Rules of Appel late

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 filin g 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).