20-005386N Ashley Harrison And Antonio Harrison, Individually And As Parents And Next Friends Of Aaliyah Harrison, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, April 5, 2021.

Summary: Summary final order granted where it was undisputed that child did not suffer brain injury during delivery, which caused permanent and substantial mental and physical impairment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A SHLEY H ARRISON A ND A NTONIO

H ARRISON , I NDIVIDUALLY A ND A S

P ARENTS A ND N EXT F RIENDS OF A ALIYAH

H ARRISON , A M INOR ,

Petitioners ,

vs. Case No. 20 - 5386N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIAT ION ,

Respondent

and

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

P ALMER H OSPITAL F OR W OMEN A ND

B ABIES ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This ca use came before the undersigned on Respondent Florida Birth -

Related Neurological Injury Compensation Association Ôs (ÑNICAÒ ) unopposed

Motion for Summary Final Order, filed on March 16, 2021 .

S TATEMENT OF T HE C ASE

W hether Aaliyah Harrison (Ñ Aaliyah Ò) suffe red a Ñbirth - related

neurological injury , Ò as defined by section 766.302(2), Fl orida Statutes, 1

1 All references to the Florida Statutes are to the 2018 vers ions, unless otherwi se specified .

for which compensation should be awarded under the Florida Birth - Related

Neurological Injury Compensation Plan (ÑPlanÒ) .

P RELIMINARY S TATEMENT

On November 2 4, 2020 , Ashley Harrison and Antonio Harrison,

Individually and a s Parents a nd Next Friends of Aaliyah, filed a Petition for

NICA Benefits with the Florida Division of A dministrative Hearings

(ÑDOAHÒ). Although Petitioners filed the Petition under protest, they alleged

that Aaliyah was eligible for NICA benefits because she suffered a

compensable birth - related neurological injury.

The Petition named Yasmine Kareem , M.D., as the obstetrician who

delivered Aaliyah on March 30, 2019 , and Winnie Palmer Hospita l for

Women and Babies (ÑHospitalÒ) as the H os pital where she was born. DOAH

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

the Hospital on December 20, 20 20 .

On December 30, 2020, the Hospital filed an unopposed motion to

i ntervene in this proceeding and amended that motion on January 4 , 2021.

On January 4, 2021, the undersigned granted the HospitalÔs motion.

After receiving one extension, NICA filed its Response to Petition for

Benefits on February 11, 2021. NICA argued t hat its experts reviewed the

medical records, conducted an examination of Aaliyah, and opined that the

claim was not compensable. At a teleconference held on February 16, 2021,

Petitioners indicated that they did not dispute NICAÔs determination as to

comp ensability; however, counsel for Intervenor requested an opportunity to

confirm his clientÔs position on that issue. In an Order dated February 16,

2021, the undersigned extended the deadline for the parties to file a joint

status report confirming their p ositions on the issue on or before March 2,

2021. On March 2, 2021, NICA filed a Status Report indicating that both

Petitioners and Intervenor did not contest NICAÔs determination that the

claim was not compensable and that, accordingly, it would be moving for

summary final order. In an Order dated March 2, 2021, the undersigned gave

NICA until March 16, 2021, to file such a motion.

On March 16, 2021, NICA filed an unopposed Motion for Summary Final

Order . NICA supported its motion with affidavits from a p ediatric neurologist

and an obstetrician, which were filed on March 24, 2021, and March 31, 2021,

respectively. NICA argu ed that the claim was not compensable because,

although there was an oxygen deprivation event during labor, delivery, and

the immediate post - delivery period, it did not cause Aaliyah to suffer a brain

injury . NICA also argued that Aaliyah suffers from permanent and

substantial mental impairment and gradually improving physical

impairment, which were not likely caused during labor, deliver y, or the

immediate post - delivery period, and that a genetic condition should be

investigated instead.

F INDINGS OF F ACT

1. Petitioners are the parents and legal guardians of Aaliyah.

2. On March 30, 2019 , Ms. Harrison gave birth to Aaliyah, a single

ges tation of 37 weeks, at the Hospital . Aaliyah was delivered by cesarean

section and weighed 2,700 grams .

3. Yasmine Kareem , M.D. , provided obstetric al services and delivered

Aaliyah .

4. The undisputed record evidence consists of affidavits and reports of t w o

physicians : Donald Willis, M.D., a board - certified obstetrician ; and Luis

Bello - Espinosa, M.D., a board - certified pediatric neurologist who conducted

an independent medical examination (ÑIMEÒ) of Aaliyah.

5 . Dr. Willis reviewed the medical records and su mmarized his opinions

about AaliyahÔs delivery and the attendant complications in a report dated

January 11, 2021 .

6. Dr. Willis noted that Ms. Harrison was admitted to the Hospital due to

worsening chronic hypertension at 37 weeks Ô gestational labor. Afte r two

days of cervical ripening and induction, during which AaliyahÔs fetal heart

rate became decelerated, a Cook Balloon was placed to assist cervical

dilation. At that point, a prolapsed umbilical cord was noted, and a caesarian

section was performed.

7. At birth, Aaliyah was flaccid with no respiratory effort. The Hospital

administered bag and mask ventilation for over three minutes. Her APGAR

scores were three at one minute, five at five minutes, and nine at ten

minutes . Aaliyah was taken to intensive c are , placed on a machine for

respiratory depression, and underwent body cooling for suspected hypoxic -

ischemic encephalopathy (ÑHIEÒ). An MRI performed five days after the birth

revealed subtle changes suggestive of HIE, though Aaliyah did not suffer

multi - organ failure and an EEG performed six days after her birth was

normal. Aaliyah was subsequently diagnosed with global developmental

delay .

8 . Based on the medical records, Dr. Willis opined to a reasonable degree

of medical probability that an obstetrica l event resulting in oxygen

deprivation to the brain likely occurred during the birth, but it was unlikely

that such an event caused a brain injury .

9. Dr. Bello - Espinosa reviewed the medical records, conducted an IME on

Aaliyah, and summarized his opinion s in a report dated February 7, 202 1, as

to whether Aaliyah suffers from permanent and substantial mental and

physical impairment caused by an oxygen deprivation event .

1 0 . Dr. Bello - Espinosa noted that Aaliyah was diagnosed with mild HIE at

birth and that an MRI conducted on the fifth day after her birth indicated

subtle changes suggestive of hypoxic - ischemic injury. However, AaliyahÔs

EEG was normal, she did not suffer neonatal seizures, and her neurological

examinations rapidly improved after birth.

11 . Dr. Bello - Espinosa conducted an IME on February 5, 2021. AaliyahÔs

neurological examination demonstrated developmental language and motor

impairments, stereotypic behavior, poor joint attention, and poor play skills

for her age. However, Dr. Bello - Espino sa did not find signs of upper or lower

motor neuron dysfunction that would suggest c erebral p alsy.

12. Based on the medical records and his IME, Dr. Bello - Espinosa opined

to a reasonable degree of medical probability that Aaliyah suffers from

substantial and permanent mental impairment but only moderate and

gradually improving physical impairment, which probably was not

permanent. Dr. Bello - Espinosa also opined that AaliyahÔs impairments were

not likely due to a brain injury caused by oxygen deprivation du ring birth

and that, instead, an underlying genetic condition should be investigated.

C ONCLUSIONS OF L AW

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

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

14. The Legislature established the Plan Ñfor the purpose of providing

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

claimsÒ occurring on or after January 1, 1989. £ 766.303(1), Fla. Stat.

15. An injured infant, his or her personal representative , parents,

dependents, and next of kin may seek compensation under the Plan by filing

a claim for compensation with DOAH. §§ 766.302(3), 766.303(2), and

766.305(1), Fla. Stat. NICA, which administers the Plan, has 45 days from

the date that a complete clai m is served to file a response and to submit

relevant written information as to whether the injury is a birth - related

neurological injury. § 766.305(4), Fla. Stat.

16. If NICA determines that the infant suffered a compensable birth -

related neurological inj ury, it may award compensation to the claimants, as

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

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

resolved by an ALJ in accordance with chapter 120 , Florida Statues .

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

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

determinations based up on the available evidence:

(a) Whether the injury claimed is a birth - related

neurological injury . È

( 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 partic ipating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital .

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

pursuant to s. 766.31.

(d) Whether, if raised by the claimant or other

party, the fa ctual determinations regarding the

notice requirements in s. 766.316 are satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations .

§ 766.309(1), Fla. Stat.

18. The term Ñ birth - related neurological injury Ò is defined as follows:

[I] njury to the brain or spinal cord of a live infant

weighing at least 2,500 grams for a single gestation

or, in the case of a multiple gestation, a live infant

weighing at least 2,000 grams at birth caused by

oxygen deprivation o r 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.

This definition shall apply to liv e births only and

shall not include disability or death caused by

genetic or congenital abnormality.

§ 766.302(2), Fla. Stat. Thus, a bir th - related neurological injury has four

components: Ñ (1) an injury to the brain or spinal cord; (2) which is caused by

oxygen deprivation or mechanical injury; (3) during labor, delivery, or

resuscitation in the immediate postdelivery period; and (4) which renders the

infant permane ntly and substantially impaired . Ò Bennett v. St. VincentÔs Med.

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

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

evidence Ñthat the infant has sustained a brain or spinal cord injury caused

by oxygen deprivation or mechanical injury and that the infant was thereby

rendered permane ntly and substantially mentally and physically impaired.Ò

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

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

provided by statute, Ñshall be based u pon a preponderance of the evidenceÒ);

Balino v. DepÔt of H RS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977) (holding

generally that Ñthe burden of proof, apart from statute, is on the party

asserting the affirmative of an issue be fore an administrative tribunal Ò).

20. If Petitioners meet their burden, section 766.309(1) provides that there

is a rebuttable presumption that the injury is a birth - related neurological

injury. Conversely, if Petitioners do not meet their burden, the undersigned is

required to issue an order dismissing the P etition. Id.

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

establishes that, although an oxygen deprivation event likely occurred during

the delivery, it neither cause d Aaliyah to sustain a brain injury nor rende red

her permanently and substantially mentally and physically impaired. Thus,

she did not suffer a Ñ birth - related neurological injury .Ò £ 766.302(2) , Fla. Stat.

2 2 . Accordingly, based on the Findings of Fact above and the undisputed

evidence, Aaliyah is n ot eligible for benefits under the Plan.

C ONCLUSION

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

claim is not compensable, NICAÔs unopposed Motion for Summary Final

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

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

County, Florida.

S

A NDREW D. M ANKO

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of April , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager S imone 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

Tallahasse e, Florida 32399 - 3275 Tallahassee, Florida 32308

(Certified No. 7020 2450 0000 (Certified No. 7020 2450 0000

1054 0495) 1054 0549)

Allison C. McMillen, Esquire Kenney Shipley, Execu tive Director

Bounds Law Group Florida Birth - Related Neurological

1751 North Park Avenue Injury Compensation Association

Winter Park, Florida 32751 2360 Christopher Place , Suite 1

(Certified No. 7020 2450 0000 Tallahassee, Florida 32308

1054 0501) (Certified No. 7020 2450 0000

1054 0556)

Joseph P. Menello, Esquire Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara , Wicker, Smith, O'Hara,

McCoy and Ford, P.A. McCoy and Ford, P. A.

390 North Orange Avenue , Suite 1000 Post Office Box 2753

Orlando, Florida 32801 Orlando, Florida 32802

(Certified No. 7020 2450 0000 (Certified No. 7020 2450 0000

1054 0518) 1054 0563)

Brooke M. Gaffney, Esquire Yasmine Kareem, M.D.

Smith, Stout, Bigman & Brock, P.A. 2572 West State Road 426, Suite 3000

444 Seabreeze Boulevard , Suite 900 Oviedo, Florida 32765

Daytona Beach, Florida 32118 (Certified No. 7020 2450 0000

(C ertified No. 7020 2450 0000 1054 0532)

1054 0525)

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 Appellate

Procedure. Such proceedings are commence d by filing the original n otice of

a dministrative a ppeal with the a gency c lerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be reviewed, and a copy,

accompanied by filing fees prescribed by law, with the clerk of t he

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).