21-000948N Aaron Eugene Boone, Jr., On Behalf Of And As Parent And Natural Guardian Of Andrew O.D. Boone, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, May 10, 2021.

Summary: Summary final order granted where it was undisputed that child did not suffer brain injury during delivery.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A ARON E UGENE B OONE , J R ., O N B EHALF

OF A ND A S P ARENT A ND N ATURAL

G UARDIAN OF A NDREW O.D. B OONE , A

M INOR ,

Petitioner , Case No. 21 - 0948N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent ,

and

A DVENTIST H EALTH S YSTEMS /S UNBELT ,

I NC . D/B/A A DVENTHEATH O RLANDO ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came before the undersigned on Respondent Florida Birth -

Related Neurological Injury Compensation Association Ôs (ÑNICAÒ ) unopposed

Motion for Summary Final Order, filed on April 29, 2021 .

S TATEMENT OF T HE C ASE

W hether Andrew O.D. Boone (Ñ Andrew Ò) suffered a Ñbirth - relate d

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

which compensation should be awarded under the Florida Birth - Related

Neurological Injury Compensation Plan (ÑPlanÒ) .

1 All references to the Florida Statutes a re to the 2019 vers ions, unless otherwise specified .

P RELIMINARY S TATEMENT

On March 15, 2021 , Aaron Eugene Boo ne, Jr., on behalf of and as Parent

and Natural Guardian of Andrew, filed a Petition for NICA Benefits with the

Florida Division of A dministrative Hearings (ÑDOAHÒ). Petitioner filed the

Petition under protest, alleging that Andrew did not suffer permanent and

substantial physical and mental impairment due to an oxygen deprivation

event during delivery.

The Petition named Bianca Stewart, M.D., Sobiah Mallick, M.D., Nikorn

Roy Arunakul, M.D., and Sabely Nichols, C.N.M., as the physicians and

midwife who pro vided obstetrical services to deliver Andrew on May 12, 2020 ,

and Adventist Health Systems/Sunbelt, Inc., d/b/a AdventHealth Orlando

(ÑHospitalÒ) as the H os pital where he was born. On March 22, 2021, DOAH

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

Dr. Mallick. Dr. Arunakul, Nurse Midwife Nichols, and the Hospital .

On March 29, 2021, the Hospital filed a Petition for Leave to Intervene in

this proceeding and an Application to Permit Discovery. In two Orders dated

March 30, 20 21, the undersigned granted the HospitalÔs motion to intervene

but denied the HospitalÔs request for discovery without prejudice to re - filing it

after NICA responded to the Petition if a final hearing would be necessary.

On April 21, 2021, NICA filed a N otice of Non - Compensability and

Request for Evidentiary Hearing on Compensability. NICA argued that its

expert reviewed the medical records and opined that the claim was not

compensable. Neither Petitioner nor Intervenor opposed NICAÔs position.

On April 29, 2021, NICA filed a Motion for Summary Final Order ,

supported by an affidavit and report from an obstetrician. NICA argu ed that

the claim was not compensable because the oxygen deprivation that likely

occurred during the delivery did not cause Andrew t o suffer any identifiable

brain injury . Petitioner and Intervenor do not oppose NICAÔs motion.

F INDINGS OF F ACT

1. Petitioner is the parent and natural guardian of Andrew.

2. On May 12, 2020 , Claud i e Blanc gave birth to Andrew, a single

gestation of 37 weeks, at the Hospital . Andrew was delivered by cesarean

section and weighed 3,210 grams .

3. The Petition named physicians Bianca Stewart, M.D., Sobiah Mallick,

M.D., and Nikorn Roy Arunakul, M.D., and N urse M idwife Sabely Nichols,

C.N.M., as the medical p rofessionals who provided obstetrical services and

were present at the birth.

4. The undisputed record evidence consists of an affidavit and report of

Donald Willis, M.D., an obstetrician specializing in maternal - fetal medicine.

5 . Dr. Willis reviewed the medical records and summarized his opinions

about AndrewÔs delivery in a report dated March 29, 2021 .

6. Dr. Willis noted that Ms. Blanc was admitted to the Hospital for

induction of labor due to hypertension at 37 weeksÔ gestational age. A

cesarean secti on was ultimately performed due to a non - reassuring fetal

heart rate pattern caused by a placenta abruption.

7. At birth, Andrew was depressed with no heart rate or respiratory effort.

Resuscitation efforts included chest compressions, intubation, saline fluid

boluses, and blood transfusions. His APGAR scores were zero at one minute,

five at five minutes, and seven at ten minutes . Andrew was taken to

intensive care and underwent body cooling for suspected hypoxic - ischemic

encephalopathy (ÑHIEÒ). Because h is respiratory distress improved, the

Hospital extubated Andrew later that same day. An EEG was read as mildly

abnormal due to non - specific findings, but no seizure activity was noted

clinically. A head ultrasound performed on the date of his birth was neg ative

for HIE. An MRI performed five days after the birth also was normal. Andrew

was discharged home after spending 16 days in the Hospital. A six - month

pediatric follow up noted normal muscle tone and motor development, and no

developmental delays .

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

of medical probability that an obstetrical event resulting in some degree of

oxygen deprivation to the brain likely occurred during the birth, but it did not

result in any identifiable br ain injury .

C ONCLUSIONS OF L AW

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

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

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

compensation, irrespecti ve of fault, for birth - related neurological injury

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

11. 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 claim 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.

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

related neurological injury, 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 Statutes .

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

13. In determ ining 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 participating 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 factual determinations regarding the

notice requirements in s. 766.316 are sa tisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations .

§ 766.309(1), Fla. Stat.

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

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

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 resuscit ation in

the immediate postdelivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically impaired.

This definition shall apply to live births only and

shall not include disability or death caused by

genetic o r 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

re suscitation 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).

15. Petitioner ha s the burden to establish by a prepondera nce 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 permanently and substantially mentally and physically impaired.Ò

§ 766.309(1)(a), Fl a. 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 upon 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).

16. If Petitioner meet s his burden, section 766.309(1) provides that the re

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

injury. Conversely, if Petitioner do es not meet his burden, the undersigned is

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

17 . Based on the Findings of Fact above, t he undisputed evidence

establishes that, although an oxygen deprivation event likely occurred during

the delivery, it did not cause Andrew to sustain a brain injury. Thus, he did

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

1 8 . Accordingly, based on the Findings of Fact above and the undisputed

evidence, A ndrew is not eligible for benefits under the Plan.

C ONCLUSION

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

claim is not compensable, NICAÔs unop posed Motion for Summary Final

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

D ONE A ND O RDERED this 10th day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

Administrative Law Jud ge

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 10th day of May , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Ma nager Simone Marstiller , 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. 7020 2450 0000

(Certified No. 7020 2450 0000 1054 0648)

1054 0600)

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

Tallahasse e, Florida 32308 (Certified No. 7020 2450 0000

(Certified No. 7020 2450 0000 1054 0655)

1054 0617)

Kenney Shipley, Executive Director

Andrew Needle, Esquire Florida Birth - Related Neurological

Needle & Ellenberg, P.A. Injury Compensatio n Association

1401 Brickell Avenue , Suite 900 2360 Christopher Place , Suite 1

Miami, Florida 33131 Tallahassee, Florida 32308

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

1054 0624) 1054 0662)

David W. Black, Esquire Travase Lloyd Erickson, Esquire

Frank, Weinberg & Black , P.L. Saalfield Shad, PA

7805 Southwest 6th Court 24 5 Riverside Avenue , Suite 400

Plantation, Florida 33324 Jacksonville, Florida 32202

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

1054 0631) 1054 0679)

Nikorn Roy Arunakul, M.D. Sobiah Mallick, M.D.

1801 Lee Road, Suite 165 225 East Seventh Street

Winter Park, Florida 32789 Apopka, Florida 32703

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

1054 0686) 1054 0594)

Sabely Nicholas, CNM Bianca Stewart, M.D.

First Flori da 133 Benmore Drive, Suite 200

2600 Westhall Lane Winter Park, Florida 32792

Maitland, Florida 32751 (Certified No. 7020 2450 0000

(Certified No. 7020 2450 0000 1053 8430)

1053 8447)

N O TICE 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

P rocedure. 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 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).