21-001309N Princess Grant, As Personal And Natural Guardian Of Prince`nylan Grant, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, March 16, 2022.

Summary: Final Order entered finding that child suffered a "birth-related neurological injury" as defined by section 766.302(2), and awarding benefits as outlined in section 766.31.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P RINCESS G RANT , A S P ERSONAL A ND

N ATURAL G UARDIAN OF P RINCE ` NYLAN

G RANT , A M INOR ,

Petitioner ,

vs. Case No. 21 - 1309N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

G ALE NCARE , I NC . D/B/A B RANDON

R EGIONAL H OSPITAL ,

Intervenor .

/

S UMMARY F INAL O RDER

This cause comes for consideration on Respondent ' s Unopposed Motion for

Summa ry Final Order, filed on September 28, 2021. Respondent moves for

entry of a final order determining that Petitioner ' s claim is compensable

under the provisions of section 766.301, et seq. , Florida Statu t es .

S TATEMENT OF T HE C ASE

On April 7, 2021, Petiti oner, Princess Grant, as personal and natural

guardian of Prince ' Nylan Grant, ( " Prince ' Nylan " ), a minor, filed a Petition for

Compensation Pursuant to Florida Birth Related Neurological Injury

Compensation Plan (the " Petition " ) with the Division of Adminis trative

Hearings ( " DOAH " ) for a determination of compensability under the Florida

Birth - Related Neurological Injury Compensation Plan (the " Plan " ).

The Petition identified Eric Edwards, M.D., Neal Trulock, D.O., Kathryn

Leenhouts, M.D., and Jill Young, APRN, as the healthcare practitioners who

provided obstetrical services at Prince ' Nylan ' s birth on August 8, 2019, at

Brandon Regional Hospital ( " Brandon Regional " ) in Brandon, Florida.

DOAH served Dr. Edwards, Dr. Trulock, Dr. Leenhouts, and Ms. Young

w ith copies of the Petition on April 20, 2021, and served Brandon Regional

that same date. DOAH also served Respondent, the Florida Birth - Related

Neurological Injury Compensation Association ( " NICA " ), with a copy of the

Petition on April 20, 2021.

Brando n Regional moved to intervene in this matter on April 30, 2021,

which was granted.

On July 2, 2021, NICA filed a Response to Petition taking the position

that Petitioner ' s claim is compensable under the Plan.

Petitioner, on September 20, 2021, filed a Notice of Acceptance of NICA ' s

Finding that Prince ' Nylan Grant Suffered a Birth Related Neurological

Injury acceding to NICA ' s determination that Prince ' Nylan sustained a

compensable injury under section 766.302.

On September 28, 2021, NICA filed an Un opposed Motion for Summary

Final Order requesting the Administrative Law Judge enter a summary final

order finding that Petitioner ' s claim is compensable under the Plan because

Prince ' Nylan suffered a " birth - related neurological injury " as defined in

secti on 766.302(2), and that Dr. Edwards and Dr. Leenhouts were

" participating physicians " pursuant to section 766.302(7). NICA's motion

represents that neither Petitioner nor Brandon Regional oppose s the relief

requested.

F INDINGS OF F ACT

1. Prince ' Nylan was b orn on August 8, 2019, at Brandon Regional located

in Brandon, Florida.

2. Eric Edwards, M.D., and Kathryn Leenhouts, M.D., were the delivering

physicians for Prince ' Nylan ' s birth at Brandon Regional. At that time, both

Dr. Edwards and Dr. Leenhouts qualif ied as " participating physicians " in the

Plan as that term is defined in section 766.302(7).

3. Petitioner was admitted to Brandon Regional on August 8, 2019, to

deliver Prince ' Nylan. Petitioner was admitted for spontaneous labor.

4. After her arriv al at Brandon Regional, Petitioner experienced

spontaneous rupture of the membranes. At approximately 7:35 p.m. ,

Petitioner was at category 2 of labor, with fetal monitoring tracing showing

moderate variability and late decelerations. There was no recorded fetal

heart rate. The delivery note indicated that tachycardia and late

decelerations were present prior to birth. The fetal head was delivered with a

nuchal cord, which was reduced.

5. Prince ' Nylan weighed 3860 grams (8 pounds, 8.2 ounces) at birth.

6. During the course of labor, delivery, or resuscitation in the immediate

postdelivery period, Petitioner asserts that Prince ' Nylan suffered an injury.

Petitioner subsequently filed the Petition with DOAH to determine whether

Prince ' Nylan ' s injury qualified as a " birth - related neurological injury " as

defined in section 766.302(2).

7. After notification of Petitioner ' s Petition, NICA retained Donald

Willis, M.D., a board - certified obstetrician/gynecologist specializing in

maternal - fetal medicine, as well as Lu is E. Bello - Espinosa, M.D., a pediatric

neurologist, to review Prince ' Nylan ' s medical records and condition. NICA

sought to determine whether Prince ' Nylan suffered a " birth - related

neurological injury " as defined in section 766.302(2). Specifically, NICA

r equested its medical consultants opine whether Prince ' Nylan 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

Prince ' Nylan permanently and substantially mentally and physically

impaired.

8. Dr. Willis reviewed Prince ' Nylan ' s medical records and noted:

[Prince ' Nylan] was depressed at birth. Apgar scores

were 4/7/7 an d arterial blood gas pH was 7.19 with

a base excess of - 13. The newborn was floppy with

poor tone, weak cry and clinically poor perfusion.

The baby did not respond to stimulation.

* * *

The newborn hospital course was complicated by

multi - system organ failures. È Seizure activity

began after re - warming. Respiratory distress

worsened, requiring nitric oxide for pulmonary

hypertension. The baby was extubated on DOL 7.

* * *

Head ultrasound on DOL 1 was normal. MRI on

DOL 8 showed acute ischemic change s, consistent

with HIE. [ 1 ] After hospital discharge, the child was

subsequently diagnosed with global developmental

delay and visual loss.

* * *

The child ' s brain injury appears to be the result of

birth related oxygen deprivation, with or without

any contribution due to possible infection.

* * *

In summary, labor was complicated by an abnormal

[fetal heart rate] pattern and resulted in a

depressed newborn. È Despite cooling protocol for

HIE, the newborn hospital course was complicated

by multi - syst em organ failures, including

hypotension, oliguria, feeding difficult [sic],

1 Hypoxic - i schemic e ncephalopathy .

respiratory distress and seizures. MRI on DOL 8

showed acute ischemia, consistent with HIE.

Cerebral palsy and global developmental delay

were diagnosed after hospital discharge.

9. Based on his review of the medical records, Dr. Willis opined that:

[T]here was an obstetrical event that resulted in

loss of oxygen to the baby ' s brain during labor,

delivery and continuing into the immediate post -

delivery period. The oxygen depriva tion resulted in

brain injury.

Dr. Willis, however, was " unable to comment on the severity of the brain

injury. "

10. Dr. Bello - Espinosa, on the other hand, did offer an opinion as to the

extent of Prince ' Nylan ' s injury. Dr. Bello - Espinosa reviewed Princ e ' Nylan ' s

medical records, as well as conducted an independent medical examination

( " IME " ) of Prince ' Nylan on June 18, 2021. Dr. Bello - Espinosa observed,

within a reasonable degree of medical probability:

Prince was awake and alert but did not interact at

all. He did not have any joint attention. He was

constantly fussing. There was no structured

language. He did not communicate verbally or non -

verbally.

* * *

Functionally, Prince sat on his own power, but with

poor truncal tone. Prince did not bear we igh [sic]

when he was placed in the standing position, and

did not walk.

* * *

SUMMARY:

* * *

On the examination today is evident that Prince

has severe neurological sequela. At 22 - month of

age, Prince has severe developmental language and

motor d elays. He has delays of cortical abilities

manifested by no expressive language, and does not

appear to have severe impaired receptive language.

On his motor exam has moderate axial hypotonia

with poor head and truncal control, moderate

hypertonia in both arms and legs, intermittent

abnormal ha n d fisting, and dystonic posturing of

hand and feet. These signs are indicative of

extrapyramidal dysfunction, resulting in a severe

degree of dystonic quadriparetic cerebral palsy.

11. Dr. Bello - Espinosa ultimately opined that based on the IME, " Prince is

found to have substantial mental and physical impairment at this time. " He

also found that Prince ' s " substantial mental and physical impairments are

permanent. " Finally, Dr. Bello - Espinosa concluded, " I do feel that there is

enough evidence to recommend Prince is included in the NICA program. "

12. Based on the opinions of Dr. Willis and Dr. Bello - Espinosa, NICA

determined that Petitioner ' s claim is compensable under section 766.302(2).

13. A review of the documents in the record reveals no contrary evidence

to dispute the findings and opinions of Dr. Willis and Dr. Bello - Espinosa .

Their opinions are credible and persuasive.

14. Based on " all available evidence " in the record, Prince ' Nylan suffered a

brain injury duri ng labor, delivery, or resuscitation in the immediate

postdelivery period that meets the requirements for compensation under

section 766.309(1). Accordingly, Prince ' Nylan is eligible for an award of NICA

benefits under the Plan.

C ONCLUSIONS OF L AW

15. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this proceeding pursuant to sections

766.301 through 766.316. The undersigned, as an Administrative Law Judge

( " ALJ " ), has " exclusive jurisdiction to determine whether a claim filed under

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

16. T he Florida Legislature created the Plan as a means to alleviate the

high costs of medical malpractice insurance for physicians practicing

obstetri cs. Bennett v. St. Vincent ' s Med. Ctr., Inc. , 71 So. 3d 828, 836 (Fla.

2011); and Univ. of Miami v. Ruiz , 164 So. 3d 758, 764 (Fla. 3d DCA 2015).

The Plan ' s purpose is to " provid[e] compensation, irrespective of fault, for

birth - related neurological injury claims. " § 766.303(1), Fla. Stat.

17. 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 È 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.

18. If NICA determin es that the injury 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.

19. When considering whether a claim is compensable under the Plan,

section 766.309(1) charges the ALJ to make the following determinations

" based upon all available evidence " :

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

neurological injury. If the claimant has

demonstrated, to th e 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 thereby rendered permanently and

substantially mentally and physically imp aired, a

rebuttable presumption shall arise that the injury

is a birth - related neurological injury as defined in

s. 766.302(2).

(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; and

(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 satisfied. The

administrative law judge has the exclusive

jurisdiction to make these factual determinations.

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

766.302(2) as:

[I] njury 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 postdelivery period

in a hospital, which renders the infant permanently

and substantially mentally and physically

impaired.

21. The NICA statute is written in the conjunctive and can only be

interpreted to require " permanent and substant ial impairment that has both

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).

22. If a claim qualifies for compensation, section 766.31(1) lists the

expens es and payments the ALJ shall award " [u]pon determining that an

infant has sustained a birth - related neurological injury and that obstetrical

services were delivered by a participating physician at the birth. "

23. The burden of proof in this matter falls on Petitioner, as the

" claimant, " to prove that Prince ' Nylan is covered by the NICA Plan.

§ 766.302 , Fla. Stat., and Balino v. Dep ' t of Health & Rehab. Servs. , 348 So.

2d 349, 350 (Fla. 1st DCA 1977) ( " The general rule is, that as in court

proceedings, the burden of proof, apart from statute, is on the party asserting

the affirmative of an issue before an administrative tribunal. " ). If Petitioner

demonstrates the statutory prerequisites for NICA benefits, a rebuttable

presumption of compensation arises in th eir favor. Bennett , 71 So. 3d at 845;

and Fla. Health Scis. Ctr., Inc. v. Div. of Admin. Hearings , 974 So. 2d 1096,

1099 (Fla. 2d DCA 2007).

24. The preponderance of the evidence standard is applicable to this

matter. See § 120.57(1)(j), Fla. Stat.

25. T urning to the injury in this case, the competent substantial evidence

establishes that Prince ' Nylan suffered a " birth - related neurological injury " as

defined in section 766.302(2). Dr. Willis, following his review of the medical

records, concluded that Pri nce ' Nylan experienced oxygen deprivation during

his birth, which resulted in brain injury. Dr. Willis was not able to assess the

severity of Prince ' Nylan ' s brain injury. However, Dr. Bello - Espinosa

persuasively opined that Prince ' Nylan sustained substantia l mental and

physical impairments, which are permanent. Dr. Willis ' s and Dr. Bello -

Espinosa ' s opinions are credited. Accordingly, based on the evidence in the

record, the undersigned determines that Prince ' Nylan suffered a " birth -

related neurological injur y. "

26. In conclusion, the evidence in the record establishes that Petitioner ' s

claim meets the statutory requirements for compensability under the Plan.

Prince ' Nylan suffered a " birth - related neurological injury " during the course

of the labor, delivery, or resuscitation in the immediate postdelivery period as

described in section 766.302(2). The evidence further shows that the

obstetrical services provided at Prince ' Nylan ' s birth were delivered by a

" participating physician " as defined in section 766.302 (7). Accordingly,

Prince ' Nylan is eligible for an award of NICA benefits under section 766.31.

D ISPOSITION

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

O RDERED :

1. Petitioner ' s Petition for compensation under the NICA Plan is

A PPROVED .

2. NICA shall make immediate payment of all actual expenses previously

incurred, and shall make payment for future expenses as incurred pursuant

to section 766.31(1)(a).

3. Princess Grant, as the parent and natural guardian of Prince ' Nylan, is

entitled to the full award authorized under section 766.31(1)(d)1.a.

4. Petitioner is also entitled to an award of reasonable expenses incurred

in connection with the filing of the claim, including reasonable attorney ' s

fees, pursuant to section 766.31(1) (e).

5. T he parties are accorded 45 days from the date of this Final Order to

resolve, subject to approval by the Administrative Law Judge, the amount

and manner in which any portion of the above - listed award s should be paid.

If not resolved within such p eriod, the parties will so advise the

Administrative Law Judge, and a hearing will be scheduled to determine

such issues.

6 . Pursuant to section 766.312, the Division of Administrative Hearings

retains jurisdiction over this matter to address the amount of an award

pursuant to section 766.31, as well as to resolve any disputes regarding the

parties ' compliance with the terms of this Final Order.

D ONE A ND O RDERED this 21st day of October , 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 21st day of October , 2021 .

C O PIES 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. 7020 2450 0000 1058 5045)

(Certified No. 7020 2450 0000 1058 5083 )

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

Agency for Hea lth Care Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 3 2308

Tallahassee, Florida 32308 (Certified No. 7020 2450 0000 1058 5014 )

(Certified No. 7020 2450 0000 1058 5076 )

Phyllis Miller Gillespie, Esquire

Kenney Shipley, Executive Director Gary, Williams, Parenti, Watson & Gary,

Florida Birth - Related Neurological P.L.L.C.

Injury Compensation Association 221 Southeast Osceola Street

Post Office Box 14567 Stuart, Florida 34994

Tallah assee, Florida 32317 (Certified No. 7020 2450 0000 1058 5021 )

(Certified No. 7020 2450 0000 1058 5069 )

Brooke M. Gaffney, Esq uire

Mark R. Messerschmidt, Esquire Smith, Stout, Bigman & Brock, P.A.

La Cava Jacobson & Goodis, PA 444 Seabreeze Boulevard , Suite 900

501 East Kennedy Boulevard , Suite 1250 Daytona Beach, Florida 32118

Tampa, Florida 33602 (Certified No. 7020 2450 0000 1058 5038 )

(Certified No. 7020 2450 0000 1058 5052 )

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 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).