21-001310N Crissa Gibson (Tims) And Joseph Gibson, Sr. On Behalf Of And As Parents And Natural Guardians Of Joseph Gibson, Jr., A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, December 16, 2021.

Summary: Based upon the unrebutted evidence of record, Petitioner did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C RISSA G IBSON (T IMS ) A ND J OSEPH

G IBSON , S R . , O N B EHALF OF A ND A S

P ARENTS A ND N ATURAL G UARDIANS OF

J OSEPH G IBSON , J R ., A M INOR ,

Petitioners ,

vs. Case No. 21 - 1310N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPEN SATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This came before the undersigned on RespondentÔs Motion for Summary

Final Order (Motion) , filed November 30, 2021. The Motion represents that

Petitioners do not oppose the relief being sought.

In its Motion, the Florida Birth - Related Neurological Injury

Compensation Association (NICA) asserts that in order for a claim to be

compensable under the Florida Birth - Related Neurological Injury

Compensation Plan (the Plan), the statutory prerequisites of section 766.309,

Florida Statutes, must be met, including:

(1) The administrative law judge shall make the

following determinations based upon all a vailable

evidence:

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

neurological injury . . .

* * *

(2) If the administrative law judge determines that

the injury alleged is not a birth - related neurological

injury . . ., she or he shall enter an orde r . . . .

(emphasis added).

The term Ñbirth - related neurological injuryÒ is defined in section

766.302(2) as:

(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

weighing at least 2,000 grams at birth caused by

oxyg en 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.

This definition sh all apply to live births only and

shall not include disability or death caused by

genetic or congenital abnormality. (emphasis

added).

F INDINGS OF F ACT

1. On March 31, 2021, Petitioners filed a Petition for Benefits Pursuant to

Florida Statute Section 766 .301 et seq. for benefits pursuant to sections

766.301 - 766.316, otherwise known as the Plan.

2. The baby was born on May 5, 2020, at North Florida Regional Medical

Center (Hospital), located in Gainesville, Florida. The circumstances of the

labor, del ivery, and birth of the minor child are reflected in the medical

records provided by NICA in response to the Petition.

3. In the instant case, NICA has retained Donald C. Willis, M.D., as its

medical expert specializing in maternal - fetal medicine. Dr . WillisÔs medical

report was filed with the Division of Administrative Hearings (DOAH) on

June 4, 2021. Upon examination of the pertinent medical records, Dr. Willis

opined:

In summary, labor was complicated by a non -

reassuring FHR pattern prior to birth. However,

the baby was not depressed at birth with Apgar

scores of 7/8. Umbilical cord blood pH was >7.0 and

base excess was <12. resuscitation="">

stimulation and CPAP supplemental oxygen. The

baby was transferred from delivery to the Well

Baby Nurse ry. Seizure activity was observed on

DOL 2, but may have been present since birth

according to motherÔs observations. EEG was

consistent with encephalopathy and MRI findings

concerning for hypoxic brain injury.

Multi - system organ failures are generally se en with

birth - related hypoxic injuries. However, this child

did not suffer multi - system organ failures,

suggesting the brain injury was not related [or] due

to oxygen deprivation at birth.

There was no apparent obstetrical event that

resulted in brain inj ury due to loss of oxygen or

mechanical trauma during labor, delivery or the

immediate post - delivery period.

4. Additionally, NICA retained Raj D. Sheth, M.D., as its medical expert

specializing in Pediatric Neurology. Dr. ShethÔs medical report was also filed

with DOAH on June 4, 2021. Upon examination of the pertinent medical

records and performance of an independent medical examination, Dr. Sheth

opined:

In SUMMARY, JosephÔs neurological examination

reflected mild delays in gross motor with scoot ing

with left leg underneath him. He had no evidence of

spasticity. His history and neonatal records

indicated seizures and evidence of hypoxic ischemic

encephalopathy, although the cause does not

appear to be related to oxygen deprivation or

mechanical in jury occurring during labor, delivery

or immediate post - delivery period.

At the time of this examination and evaluation

JosephÔs case indicates that he does not have

substantial and permanent mental impairment and

does not have substantial physical impair ment. As

such, Joseph Gibson would not qualify for

compensation under the NICA program.

5. The medical reports of Dr. Willis and Dr. Sheth are the only evidence of

record relating to the issue of whether the subject claim is compensable as

defined by the statute. The Petition, along with the unrebutted medical

reports of Dr. Willis and Dr. Sheth, establishes that there are no genuine

issues of material fact regarding the compensability of this claim.

C ONCLUSIONS OF L AW

6. DOAH has jurisdiction over th e parties to and the subject matter of

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

7. The Plan was established by the Legislature Ñfor the purpose of

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

injury claimsÒ re lated to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

8. 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. 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

info rmation relating to the issue of whether the injury is a birth - related

neurological injury.

9. If NICA determines that the alleged injury is a birth - related

neurological injury that is compensable under the Plan, it may award

compensation to the claim ant, provided that the award is approved by the

assigned administrative law judge. § 766.305(7), Fla. Stat. However, if NICA

disputes the claim, as it does in this case, the dispute must be resolved by the

assigned administrative law judge in accordance wi th chapter 120, Florida

Statutes. §§ 766.304, 766.30, and 766.31, Fla. Stat.

10. The first inquiry is whether the infant has sustained a birth - related

neurological injury as defined by section 766.302(2), which provides:

ÑBirth - related neurological in juryÒ 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 amultiple gestation, a live infant weighing

at least 2,000 grams at birth caused by oxygen

deprivation or mechanical inj ury 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 live births only an d shall not include

disability or death caused by genetic or congenital

abnormality. (emphasis added).

11. If the administrative law judge determines that the infant meets the

statutory threshold for weight and has sustained a brain or spinal cord in jury

caused by oxygen deprivation or mechanical injury, and that as a result of the

injury the infant was rendered permanently and substantially mentally and

physically impaired, then section 766.309(1) provides that there is a

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

12. In this case, the evidence does not support a finding that the injury is

a birth - related neurological injury. This issue is dispositive with respect to

compensability. Based upon this evidence, Jo seph Gibson, Jr. , did not sustain

a birth - related neurological injury as defined in section 766.302(2), and is not

eligible for benefits under the Plan.

C ONCLUSION

Based upon the Findings of Fact and Conclusions of Law provided above,

PetitionersÔ claim i s not compensable under the Plan, and the Petition is

dismissed with prejudice.

D ONE A ND O RDERED this 1 6 th day of December , 2021 , in Tallahassee,

Leon County, Florida.

S

W. D AVID W ATKINS

Administrative Law Judge

1230 A palachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of December , 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manage r Simone M arstiller , 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. 7021 1970 0000 4860 8427)

(Certified No. 7021 1970 0000 4860 8410)

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 Tal lahassee, Florida 32308

Tallahassee, Fl orida 32308 (Certified No. 7021 1970 0000 4860 8441)

(Certified No. 7021 1970 0000 4860 8434)

Kenney Shipley, Executive Director

Grant A. Kuvin, Esquire Florida Birth - Related Neurological

Morgan & Morgan, P.A. Injury Compensation Association

76 South Laura Street, Suite 1100 Post Office Box 14567

Jacksonville, Florida 32202 Tallahassee, Florida 32317

(Certified No. 7021 1970 0000 4860 8458) (Certified No. 7021 1970 0000 4860 8465)

M. Mark Bajalia, Esquire Cynthia Vista, CNM

Bajalia Law Suite 111

Suite 301 6440 West Newberry Road

115 12 Lake Mead Avenue Gainesville, Florida 32605

Jacksonville, Florida 32256 (Certified No. 7021 1970 0000 4860 8489)

(Certified No. 7021 1970 0000 4860 8472)

North Florida Regional Medical Center Joseph Iobst, MD

Attention: Risk Management Suite 111

6500 West Newberry Road 6440 West Newberry Road

Gainesville, Florida 32605 Gainesville, Florida 32605

(Certified No. 7021 1970 0000 4860 8496) (Certified No. 7021 1970 0000 4860 8502)

N OTI CE 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

Pro cedure. 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).