20-005232N Meghan Gibson And Jarrod Gibson, Individually And As Natural Parents Of Oliver Gibson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 30, 2021.

Summary: NICA's unopposed motion for summary final order is granted where infant did not sustain a birth-related neurological injury.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M EGHAN G IBSON A ND J ARROD G IBSON ,

I NDIVIDUALLY A ND A S N ATURAL P ARENTS

OF O LIVER G IBSON , A M INOR ,

Petitioners ,

Case No. 20 - 5232N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respon dent

and

O RLANDO H EALTH , I NC ., D / B / A W INNIE

P ALMER H OSPITAL , M ICHELLE R OTHEN ,

M.D., S HAWN L EE , M.D., A ND W OMEN ' S

C ARE F LORIDA , LLC,

Intervenors .

/

S UMMAR Y F INAL O RDER O F D ISMISSAL

This cause came on for consideration upon the Motion for Partial

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on March 16, 2021 .

S TATEMENT O F T HE I SSUES

On N ovember 17, 2020 , Petitioner s Meghan Gibson and Jarrod Gibson, as

parent s and natural guardians of Oliver Gibson (Oliver) , a minor, filed a

Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with the Division of Administra tive Hearings (DOAH ) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

The Petition identified Michelle Rothen, M.D., and Shawn Lee, M.D. , as

the physicians who provided obstetric services at the birth of Oliver on

July 31, 2016 , at Orlando Health, Inc., d/b/a Winnie Palmer Hospital (Winnie

Palmer Hospital) , located in Orange County , Florida.

DOAH served Michelle Rothen, Shawn Lee, Winnie Palmer Hospital, and

NICA with a copy of the Petit ion on December 11, 2020 .

On February 9, 2021 , NICA filed a Notice of Non - Compensability and

Request for Evidentiary Hearing on Compensability, asserting that Oliver

did not sustain a Ñ birth - related neurological injury Ò as that term is defined in

section 766.302(2), Florida Statutes, and requested that a hearing be

scheduled to determine compensability. On February 15, 2021, the

undersigned entered an Order that required the parties to confer and advise

concerning the need for a hearing, if any, and if a hearing is needed, when

the parties will be prepared to proceed to a hearing, the issues in dispute, the

estimate of time required for hearing, and the choice of venue. On March 5,

2021, NICA filed a Response to Order Dated February 15, 2021. The

Response to Order Dated February 15, 2021 , noted that NICA Ñdoes not

anticipate a hearing will be required in this matter[,]Ò and stated, in part,

that ÑNICA has filed a Motion for Summary Final Order seeking a ruling that

the claim is not ÓCompensableÔ È..Ò Interv enors Michelle Rothen, Shawn Lee,

and WomenÔs Care Florida, LLC, filed a Response to Order Dated

February 15, 2021, which similarly noted that Ña hearing will not be required

in this matterÒ and that they will not oppose NICAÔs Motion for Summary

Final Or der. Petitioners did not respond to the February 15, 2021 , Order.

On March 16, 2021, NICA filed its Motion for Summary Final Order

(Motion). Petitioners have not filed a response to the Motion within the

seven - day time period for a response set forth in F lorida Administrative Code

Rule 28 - 106.204(4), and, as noted above, did not respond to the undersignedÔs

February 15, 2021 , Order.

F INDINGS OF F ACT

1 . Oliver was born on July 31, 2016 , at Winnie Palmer Hospital, located in

Orange County , Florida.

2. Don ald Willis, M.D. (Dr. Willis) , was requested by NICA to review the

medical records for Oliver . In a medical report dated December 24 , 2020,

Dr. Willis summarized his findings and opined , in pertinent part , as follows:

In summary, labor was induced at 37 w eeks for

preeclampsia. Chorioamnionitis developed during

labor and Cesarean delivery was done for a non -

reassuring FHR pattern and failed induction. The

newborn was depressed with cord blood gas pH

7.00 However, the baby responded to resuscitation

effort s and was on room air by six hours after birth.

Neurologic exam was noted to be essentially

normal. Head imaging studies were not done

during the newborn hospital course. Brain MRI at

three years of age was normal.

There was likely some degree of oxygen d eprivation

at birth, based on the low Apgar scores and cord

blood pH < 7.00.="" however,="" the="" baby="" responded="">

resuscitation efforts with no identifiable brain

injury.

Although there was an obstetrical event that

resulted in some degree of oxygen deprivation to

the baby during labor and delivery and possibly

extending into the immediate post - delivery period,

the oxygen deprivation did not result in identifiable

brain injury.

3. NICA retained Luis E. Bello - Espinosa , M.D. (Dr. Bello - Espinosa) , a

medical expert specializing in pediatric neurology, to examine Oliver and to

review his medical records. Dr. Bello - Espinosa examined Oliver on

February 5, 2021. In a medical report dated February 7, 2021, Dr. Bello -

Espinosa summarized his examination of Oliver and opin ed , in pertinent

part , as follows:

Oliver is a four - year - six - month - old boy with a

history of perinatal depression after birth. He had

rapid recovery in the NICU. He did not need

therapeutic hypothermia. He did not have

symptomatic seizures or other clinic al signs to

indicate a perinatal hypoxic event. His neurological

examination today was completely normal except

for dysfluency of speech as frequently seen in

children with mixed receptive - expressive language

disorders.

* * *

Oliver does not suffer of a substantial mental or

physical impairment at this time.

* * *

Oliver does not have mental or physical

impairments.

* * *

In reviewing all the available documents, the

evolution of [his] symptoms, there is no evidence of

mental and physical impairments due to severe

injury to the brain acquired due to oxygen

deprivation to the brain occurring during the labor -

delivery period.

* * *

There are no permanent substantial mental and

physical impairments that occurred during birth.

Considering the clinical p resentation, I feel there is

no[t] enough evidence to recommend Oliver be

included in the NICA program.

4. A review of the file in this case reveals that there have been no expert

opinions filed that are contrary to the opinion of Dr. W illis that it is un likely

that any significant oxygen deprivation occurred prior to the birth of Oliver

that resulted in identifiable brain injury. Dr . WillisÔs opinion is credited.

There are no expert opinions filed that are contrary to Dr. Bella - EspinosaÔs

opinion that Oli ver should not be considered for inclusion in the NICA

program. Dr. Bella - EspinosaÔs o pinion is credited.

5. Petitioner has failed to respond to the Motion.

C ONCLUSIONS OF L AW

6. DOAH has jurisdiction over the parties to and the subjec t matter of

these pr oceedings. §§ 766.301 - 766.316, Fla. Stat.

7. The Legislature established the Plan Ñ for the purpose of providing

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

claims Ò relating to births occurrin g on or after January 1, 1989. § 766.303(1),

Fla. Stat.

8. 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 . NICA, which administers the Plan, has Ñ 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 neurol ogical injury.Ò £ 766.305(4),

Fla. Stat.

9. 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 administrative law judge to

whom the claim has been assig ned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claim, as it has in the instant case, the dispute

must be resolved by the assigned administrative law judge in accordance

with the provisions of ch apter 120, Florida Statutes. §§ 766.304, 766.309,

and 766.31, Fla. Stat.

10. In discharging this responsibility, the administrative law judge must

make the following determination based upon the available evidence:

(a) Whether the injury claimed is a bi rt h - 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 mechanical injury and that

the infant was th ereby 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 obstetrical services were delivered by a

p articipating 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 the course of labor,

delivery, o r resuscitation in the immediate

postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the administrative

law judge concludes that the Ñ infant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth. Ò § 766.31(1), Fla. Stat.

11. Section 766.302(2) defines t he term Ñ birth - related neurological injury Ò

a s follows:

Ñ Birth - related neurological injury Ò 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.

12. To be compensable under the Plan, there must have been an

obstetrical event which resulted in loss of oxygen to the babyÔs brain during

labor, delivery, or resuscitation in the immediate post - delivery period

resulting in a permanent and substantial mental impairment and a

permanent and substantial physical impairment, inasmuch as both are

requi red to establish compensability. Fla. Birth - Related Neurological Injury

Comp. AssÔn v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

13. The evidence, which Petitioner has not refuted or attempted to refute,

established that Oliver did not suffer a birth - related neurological injury.

Therefore, Oliver is not eligible for benefits under the Plan.

C ONCLUSION

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

O RDERED that:

The Petition filed by Meghan Gibson and Jarrod Gibson, as parent s and

natural guardians of Oliver Gibson , is dismissed with prejudice.

D ONE A ND O RDERED this 30th day of March, 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 323 99 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th 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 Drive, Mail Stop 1

Tallahassee, Florida 32399 - 3275 Tallahassee, Florida 32308

(Certified No. 7020 1290 0001 6309 9027) (Certified No. 70 20 2450 0002 1970 5701)

Ronald S. Gilbert, Esquire Kenney Shipley, Executive Director

Colling Gilbert Wright & Carter, LLC Florida Birth - Related Neurological

801 North Orange Avenue , Suite 830 Injury Compensation Association

Orlando, Florida 32801 Suite 1

(Certified No. 7020 1290 0001 6309 9034) 2360 Christopher Place

Tallahassee, Florida 32308

Gabrielle Osborne, Esquire (Certified No. 7020 2450 0002 1970 5589)

Beytin, McLaughlin, McLaughlin, O'Hara,

Kinman & Bocchino, P.A. Jeremy T. Palma, Esquire

1706 East Eleventh Avenue R issman, Barrett, Hurt,

Tampa, Florida 33605 Donahue & McLain, PA

(Certified No. 7020 1290 0001 6309 9058) Suite 1400

201 East Pine Street

David W. Black, Esquire Orlando, Florida 32801

Frank, Weinberg & Black, P.L. (Certified No. 7020 1290 0001 6309 9041)

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified No. 7020 2450 0002 1970 5596)

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 appe al 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. S tat., and Fla.

Birth - Related Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).