21-001231N Crystal Kay Matthews, As Legal Guardian And Representative Of Ivan Jackson Rewis, Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, November 18, 2021.

Summary: Petitioner does not meet eligibility requirements under the NICA Plan as defined by section 766.302(2).

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C RYSTAL K AY M ATTHEWS , A S L EGAL

G UARDIAN A ND R EPRESENTATIVE OF I VAN

J ACKSON R EWIS , M INOR ,

Petitioner ,

vs. Case No. 21 - 1231N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

a nd

O RANGE P ARK M EDICAL C ENTER , I NC .,

D / B / A O RANGE P ARK M EDICAL C ENTER ,

M ICHAEL M ORPHET , D.O., A ND W OMEN ' S

C ARE F LORIDA , L.L.C.,

Intervenors .

/

S UMMARY F I NAL O RDER

On October 27, 2021, Respondent, Florida Birth - Related Neurological

Injury Compensation Association (NICA), filed a Motion for Summary Final

Order (Motion) , seeking a determination that the injury suffered by Ivan

Jackson Rewis (Ivan), do es not c onstitute a birth - related neurological injury

as that term is defined in section 766.302(2), Florida Statutes. The M otion

relies on the affidavits and expert reports of Donald Willis, M.D., and Raj

Sheth, M.D., filed November 8, 2021. The Motion represents that neither

Petitioner nor Intervenors intend to oppose the entry of a Summary Final

Order finding that the injury is not compensable.

S TATEMENT O F T HE I SSUES

The issue to be determined is whether Ivan suffered a birth - related

neurological injury as th at term is defined in section 766.302(2).

P RELIMINARY S TATEMENT

On April 6, 2021, Crystal Kay Matthews, as legal guardian and

representative of Ivan, filed a Petition to Determine Eligibility of Benefits

Pursuant to 766.301 et seq., Florida Statutes (the Petition).

The Petition names Michael Morphet, M.D., as the physician providing

obstetrical services, and Orange Park Medical Center , Inc. (Orange Park) , as

the hospital where Ivan was born, on October 26, 2019.

NICA, Dr. Morphet, and Orange Park were all provided copies of the

Petition by certified mail, and Orange Park, Dr. Morphet, and WomenÔs Care

Florida, LLC, all moved for and were granted Intervenor status.

On April 29, 2021, Intervenor Orange Park filed an Application to Permit

Discovery, which wa s denied as premature, without prejudice to renew the

motion once NICA made a preliminary determination on compensability. On

July 1, 2021, NICA filed its response, stating that it believed the claim was

not compensable, and on July 7, 2021, an Order was i ssued directing the

parties to provide dates for conducting a hearing.

On July 13, 2021, Intervenor Orange Park filed a Motion for

Reconsideration of the Order Denying Application to Permit Discovery, which

Intervenors Morphet and WomenÔs Care of Florida j oined, and Petitioner

opposed. A telephone hearing was held on the Motion on July 23, 2021, and

on July 23, 2021, an Order was issued allowing Intervenors to conduct the

limited discovery they had indicated they were seeking, i.e., review of the

medical re cords provided to NICA, and a deposition of Crystal Matthews,

IvanÔs grandmother and legal guardian. A status conference was also

scheduled, at which time the parties were to report whether a hearing would

remain necessary.

On September 24, 2021, Orange Pa rk moved to conduct a compulsory

medical examination of Ivan, asserting that Ms. Matthews had testified that

Ivan has delays in his speech development, and Dr. Sheth, the pediatric

neurologist who examined Ivan for NICA had noted that his tongue

movements were poorly coordinated. Orange Park asserted that an

examination by a pediatric neurologist of its choosing was necessary to

determine whether there was a dispute of material fact as to compensability.

The motion did not specify the time, place, manner, c onditions, scope of the

examination, or the person who would conduct the examination, all of which

is required by Florida Rule of Civil Procedure 1.360(1).

A motion hearing was conducted on October 6, 2021, at which time

Intervenors confirmed that their in quiry was limited to IvanÔs speech

development and tongue movements, and no other potential physical or

mental impairment had been identified. An Order was issued on October 6,

2021, denying IntervenorÔs request for a compulsory medical examination,

which stated in part:

Even assuming that an independent (as yet to be

named) examiner found that there is a permanent

issue with regard to IvanÔs speech development and

tongue movements, it would not be sufficient to

make a finding that Ivan is permanently and

s ubstantially mentally and physically impaired. È

Put another way, it would not be enough to place

Ivan in a Ñlimited class of catastrophic injuries that

result in unusually high costs for custodial care and

rehabilitation.Ò Under these circumstances,

Inter venor has not demonstrated good cause to

require a compelled examination.

The parties indicated during the telephone hearing that they believed the

case could be resolved by Summary Final Order, but in the weeks following,

no motion was filed. On October 21, 2021, a Scheduling Order was issued

setting deadlines for filing a Motion for Summary Final Order, as well as any

responses thereto, with the caveat that failure to meet those deadlines would

result in the scheduling of a hearing.

On October 27, 2021, RespondentÔs Motion for Summary Final Order was

filed, along with a Motion to Determine Confidentiality of Document. The

supporting affidavits of Dr. Donald Willis, M.D., and Dr. Ra j D. Sheth, M.D.,

were filed November 8, 2021, along with another Motion to Determine

Confidentiality. Both motions are actually notices alerting the ClerkÔs Office

that the documents filed contain confidential information, and those

documents have been designated as not available for public viewing. 1

F INDINGS O F F ACT

1. Ivan was born October 26, 2019, at Orange Park Medical Center in

Orange Park, Florida. At birth, he weighed seven pounds, 11 ounces. IvanÔs

mother died the following day.

2. Donald Willis, M.D., is an expert in maternal - fetal medicine and is

board - certified in obs tetrics and gynecology and maternal - fetal medicine.

Dr. Willis reviewed the medical records in this case and issued a report dated

May 27, 2021. In his report, he noted that Ivan was delivered by emergency

Cesarean section, during which a 30 - percent placen tal abruption was noted.

His report included the following information:

The baby was depressed at birth. Apgar scores

were 2/4/9. È The baby was flaccid, cyanotic and

without respiratory effort at birth. Heart rate was

110 bpm. Bag and mask ventilation wa s given for

3 minutes, follow[ed] by CPAP. The baby was

transferred to the NICU on CPAP for respiratory

depression.

Physical exam on admission to the NICU noted

little spontaneous movements and flaccid tone.

Hypoxic ischemic encephalopathy was suspected

1 Similarly, the Motion for Summary Final Order does not contain proposed findings of fact

or proposed conclusions of law. In the future, it would be helpful if counsel would consider

including those proposed findings you are asking the ALJ to find.

a nd the baby transferred to ShandÔs Hospital for

possible cooling protocol.

The baby arrived at ShandÔs NICU on CPAP/

Neurologic exam was noted to be normal. The baby

did not meet criteria for cooling protocol. Hospital

course at ShandÔs was uncomplicated. The baby

was on room air by DOL 1. Sepsis w/o was

negative. The baby was discharged home on

DOL 5. Head imaging studies and/EEGÔs were not

[performed] during the newborn hospital stay.

* * *

There was an apparent obstetrical event (placental

abruption) [that] resulted in some degree of

oxygen deprivation to the baby during labor and

delivery. However, it does not appear that the

oxygen deprivation resulted in brain injury.

3. Dr. WillisÔs expert opinion is credited.

4. Ivan was examined by Rash Sheth, a board - certified pediatric

neurologist. After his evaluation, Dr. Sheth issued a report that contained the

following:

Motor examination revealed generalized normal

muscle tone in all extremities in a symmetric

distribution. There is full range of motion at all

joints. There are no adventitious movements and

no fasciculations or muscular atrophy. Ivan

evidenced intact fine motor coordination

characterized by individual finger movements with

bimanual hand and finger cooperation. Objects

were easily transfer red between hands, and he

grasped independently with either hand using his

thumb and forefinger.

Coordination and gait: He walked independently

with good stability he was able to stoop and

recover. His gait was normal based. There were no

falls, and he had no tremors.

Sensory examination is intact to withdrawal of all

extremities to stimulation.

Neurovascular examination reveals no cervical,

cranial, or ocular breits and no temperature

asymmetries.

In S UMMARY , IvanÔs neurological evaluation

demonstrates a normal neurological exam. His

development is delayed in expressive language with

better preserved receptive language. He does have

some stereotypical behaviors which would require

more detailed assessment for features of autism.

5 . Dr. Sheth concluded that Ñas of the time of this examination and

evaluation IvanÔs case indicates that he does not suffer from either

substantial mental or substantial physical impairment.Ò Dr. ShethÔs opinion

is credited.

6. Based on the evidence presented, Ivan does not suf fer from a birth -

related neurological injury.

C ONCLUSIONS O F L AW

7. DOAH has jurisdiction over the parties and the subject matter of these

proceedings pursuant to sections 120.569, 120.57(1), and 766.304, Florida

Statutes.

8. The Legislature established th e Plan Ñfor the purpose of providing

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

claimsÒ related to births occurring on or after January 1, 1989. £ 766.303(1),

Fla. Stat.

9. An injured infant and certain other identified peop le, including the

infantÔs parents, 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. Section 766.305(4) provides that NICA, which administers the Plan, has

45 days from the date that a complete claim is served to file a response to the

petition and to submit relevant written information related to whether the

child has suffered a birth - related neurological injury.

10. If NICA determines that there is a birth - related neur ological injury

that is compensable under the Plan, it may award compensation to the

claimant, provided that the award is approved by the assigned

administrative law judge. § 766.305(7), Fla. Stat. If NICA disputes the claim,

as it does in this case, the d ispute must be resolved by the administrative law

judge in accordance with chapter 120, Florida Statutes. §§ 766.304, 766.30,

766.31, Fla. Stat.

11. The initial inquiry is whether the infant has suffered a birth - related

neurological injury as that term is defined in section 766.302(2), which

provides:

(2) ÑBirth - related neurological 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 wei ghing

at least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in the

course of labor, delivery, or in 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 live births only and shall not include

disability or death caused by genetic or congenital

abnormality.

12. If the administrative law judge determines that the infant has

sustained a brain or spinal c ord injury caused by oxygen deprivation or

mechanical injury, and finds that as a result of the injury, the infant was

rendered permanently and substantially mentally and physically impaired,

then section 766.309(1) provides a rebuttable presump tion that the injury is a

birth - related neurological injury.

13. The evidence presented does not support such a finding in this case.

While Dr. Sheth found that Ivan had a developmental delay with regard to

his speech, he did not find this delay to constit ute a substantial and

permanent injury. Moreover, section 766.302(2) requires that there be a

substantial and permanent physical and mental impairment. Ivan does not

meet this criteria, and is not eligible for benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law, NICAÔs Motion for

Summary Final Order is granted. Petitioner Ôs injuries are not compensable

under the Plan, and the Petition is dismissed.

D ONE A ND O RDERED this 18th day of November , 2 0 21 , in Tallahassee,

Leon County, Florida.

S

L ISA S HEARER N ELSON

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 18th day of November , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager 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. 70211970000048608397)

(Certified No. 70211970000048608403)

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Admin istration

Agency for Heal th Care Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No 70211970000048608373)

(Certified No. 70211970000048608380)

Donald Mark Hinkle, Esquire Kenney Shipley, Executive Director

Hinkle & Foran Florida Birth - Related Neurological

Suite 350 Injury Compensation Association

3500 Financial Plaza Post Office Box 14567

Tallahassee, Florida 32312 Tallahassee, Florida 32 317

(Certified No. 70211970000048608366 ) (Certified No . 70211970000048608359)

Jenifer S. Worley, Esquire Carissa Brumby, Esquire

La Cava Jacobson & Goodis Beytin, McLaughlin, Mclaughlin, O'Hara,

Suite 201 Kinman & Bocchino, P.A.

1200 Riverplace Boulevard 1706 East Eleventh Avenue

Jacksonville, Florida 32207 Tampa, Florida 33605

(Certified No. 70211970000048608342) (Certified No. 70211970000048608335)

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 3225 6

(Certified No. 70211970000048608328)

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 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 c ommenced 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 cle rk 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).