21-001312N Lillian Henderson And Nicky Raines, On Behalf Of And As Parents And Natural Guardians Of Jack Raines, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 14, 2021.

Summary: NICA's unopposed motion for summary final order is granted where infant did not sustain a birth-related neurological injury.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L ILLIAN H ENDERSON A ND N ICKY R AINES ,

O N B EHALF OF A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF J ACK R AINES , A

M INOR , Case No. 21 - 1312N

Petitioners ,

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATIO N ,

Respondent,

and

A NTHONY B. A GRIOS , M.D. A ND A LL

A BOUT W OMEN O BSTETRICS A ND

G YNECOLOGY , LLC ,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This c ause came on for consideration upon the Motion for Summary Final

Order filed by Respondent, Florida Birth - Related Neurological Injury

Compensation Association (NICA), on September 27, 2021.

S TATEMENT OF T HE C ASE

On April 13, 2021, Petitioners , Lillian Hen derson and Nicky Raines,

on behalf of and as parents and natural guardians of Jack Raines (Jack),

a minor, filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 et seq. (Petition) with the Division of Administrative

Hearings (DOAH) f or a determination of compensability under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

The Petition identified Anthony Agrios, M.D., as the physician who

provided obstetric services at the birth of Jack on October 24, 2019, at North

Florida Regional Medical Center, located in Alachua County, Florida. The

Petition also alleges, inter alia , that Jack does not appear to be Ñpermanently

and substantially mentally and physically impaired , Ò and thus would not be

qualified for NICA be nefits.

DOAH served Dr. Agrios, North Florida Regional Medical Center, and

NICA with a copy of the Petition on April 20, 2021.

On June 4, 2021, NICA filed a Response to Petition for Benefits, which

stated its determination that the instant claim is not compensable as the

injury does not meet the definition of a Ñbirth - related neurological injury , Ò as

defined in section 766.302(2), Florida Statutes (2019). On August 3, 2021, the

parties filed a Joint Notice of Compliance, which stated that the parties did

not contest the compensability determination that NICA reached in its

Response to Petition for Benefits.

On September 8, 2021, the undersigned conducted a telephonic status

conference to determine the need for a hearing, if any, and if a hearing is

neede d, when the parties will be prepared to proceed to a hearing, the issues

in dispute, the estimate of time required for hearing, and the choice of venue.

The parties indicated that a hearing was not necessary.

On September 27, 2021, NICA filed its Motion for Summary Final Order

(Motion). Petitioners did not file a response to the Motion within the seven -

day time period for a response set forth in Florida Administrative Code Rule

28 - 106.204(4). The Motion further indicates that Petitioners and Intervenors

d o not intend to oppose the Motion.

F INDINGS O F F ACT

1. Jack was born on October 24, 2019, at North Florida Regional Medical

Center, located in Alachua County, Florida.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the

medical reco rds for Jack. In a medical report dated April 26, 2021, Dr. Willis

summarized his findings and opined, in pertinent part, as follows:

In summary, delivery was complicated by a failed

forceps delivery, which resulted in a depressed

skull fracture with unde rlying brain injury. EEG

was consistent with seizure activity occurring from

the area of brain injury underlying the skull

fracture. MRI was also consistent with brain injury.

There was an obstetrical event that resulted in

mechanical trauma to the babyÔs brain during

delivery. The head trauma resulted in a skull

fracture to the underlying brain tissue. I am unable

to comment about the severity of the injury.

3. NICA retained Raj D. Seth, M.D. (Dr. Seth), a medical expert

specializing in pediatric neurolo gy, to examine Jack and to review his medical

records. Dr. Seth examined Jack on June 1, 2021. In a medical report dated

June 1, 2021, Dr. Seth summarized his examination of Jack and opined, in

pertinent part, as follows:

In SUMMARY, Jack RainesÔs neurolo gical

examination reveals evidence of expressive

language delay, with good comprehension and

apparent normal processing of language. His

neurologic examination is normal for age.

Much of JackÔs neonatal course was detailed in the

history of present illnes s. He was born after a failed

forceps delivery with a complication of a left

parietal depressed fracture requiring neurosurgical

intervention. He presented with neonatal seizures

which responded well to Keppra and he has been

successfully weaned off Keppra . CT head and MRI

scans indicated a left parietal depressed fracture

with changes in the left basal ganglia. He does not

have neurological deficits as of this examination

and his development is normal.

In response to your question:

ÑDoes the child suffer from both a substantial

mental impairment and a substantial physical

impairment?

As of the time of this examination and evaluation

JackÔs case indicates that he does not suffer from

either substantial mental or substantial physical

impairment.

4. A revie w of the file in this case reveals that there have been no expert

opinions filed that are contrary to Dr. SethÔs opinion that Jack should not be

considered for inclusion in the NICA program. Dr. SethÔs opinion is credited.

C ONCLUSIONS O F L AW

5. DOAH has j urisdiction over the parties to and the subject matter of

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

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

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

cl aimsÒ relating to births occurring on or after January 1, 1989. £ 766.303(1),

Fla. Stat.

7. The injured infant, her or his personal representative, parents,

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

filing a claim for compensatio n with DOAH. §§ 766.302(3), 766.303(2),

and 766.305(1), Fla. Stat. NICA, which administers the Plan, has Ñ45 days

from the date of service of a complete claim . . . in which to file a response to

the petition and to submit relevant written information rel ating to the issue

of whether the injury is a birth - related neurological injury.Ò £ 766.305(4),

Fla. Stat.

8. If NICA determines that the injury alleged in a claim is a compensable

birth - related neurological injury, it may award compensation to the claima nt,

provided that the award is approved by the administrative law judge to

whom the claim has been assigned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claim, as it has in the instant case, the dispute

must be resolved by the assigne d administrative law judge in accordance

with the provisions of chapter 120, Florida Statutes. §§ 766.304, 766.309,

and 766.31, Fla. Stat.

9. In discharging this responsibility, the administrative law judge must

make the following determination based upo n the available evidence:

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

neurological injury. If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury caused by

o xygen deprivation or mechanical injury and that

the infant was thereby rendered permanently and

substantially mentally and physically impaired, a

rebuttable presumption shall arise that the injury

is a birth - related neurological injury as defined in

s. 766 .303(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.

§ 766.309(1), Fla. Stat. An award may be sustained only if the administrative

law judge concludes that the Ñinfant has su stained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth.Ò £ 766.31(1), Fla. Stat.

10. Section 766.302(2) defines the term Ñbirth - related neurological injuryÒ

as follows:

ÑBirth - relat ed 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 oxygen

deprivatio n 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.

11. To be compensable under t he Plan, there must have been an

obstetrical event which resulted in loss of oxygen to the babyÔs brain during

labor, delivery, or resuscitation in the immediate post - delivery period

resulting in a permanent and substantial mental impairment and a

permanen t and substantial physical impairment, inasmuch as both are

required to establish compensability. Fla. Birth - Related Neurological Injury

Comp. AssÔn v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

1 2 . The evidence, which the parties do not refute, established that Jack

did not suffer a birth - related neurological injury under the definition of

section 766.302(2). Therefore, Jack is not eligible for benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and the Conclusions of Law, it is

O RDERED that:

The Petition filed by Lillian Henderson and Nicky Raines, on behalf of

and as parents and natural guardians of Jack Raines, a minor, is D ISMISSED

with prejudice.

D ONE A ND O RDERED this 14th day of October, 2021 , in Tallahassee, Leon

County , Florida.

S

R OBERT J. T ELFER III

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 14th day of October, 2021 .

C OPIE S 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. 7021 1970 0000 4860 8809 )

(Certified No. 7021 1970 0000 4860 8762 )

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Age ncy for Health Care Administration

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7021 1970 0000 4860 8816 )

(Certified No. 7021 1970 0000 4860 8779 )

Kenney Shipley, Executive Director

Mark A. Avera, Esquire Florida Birth - Related Neurological

Avera & Smith Injury Compensation Association

2814 Southwest 13th Street Post Office Box 1 4567

Gainesville, Florida 32608 Tallahassee, Florida 32317

(Certified No. 7021 1970 0000 4860 8786 ) (Certified No. 7021 1970 0000 4860 8823 )

F ranklin Duke Regan, Esquire M. Mark Bajalia, Esquire

Hall Booth Smith, PC Bajalia Law

Suite 400 Suite 301

200 West Forsyth Street 11512 Lake Mead Avenue

Jacksonville, Florida 32202 - 4320 Jacksonville, Florida 32256

(Certified No. 7021 1970 0000 4860 8793 ) (Certified No. 7021 1970 0000 4860 8830 )

North Florida Regional Medical Center

Attention: Risk Management

6500 West Newberry Road

Gainesvil le, Florida 32605

(Certified No. 7021 1970 0000 4860 8847 )

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).