21-001559N Mary Mathis, Individually, And Daniel Brown, Individually, And On Behalf Of Kymani Brown, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 2, 2022.

Summary: Summary final order entered concluding Petitioner did not sustain a birth-related neurological injury, and, therefore not entitled to compensation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ARY M ATHIS , I NDIVIDUALLY , A ND D ANIEL

B ROWN , I NDIVIDUALLY , A ND O N B EHALF

OF K YMANI B ROWN , A M INOR ,

Petitioners ,

vs. Case No. 21 - 1559N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Res pondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This matter came before the undersigned on RespondentÔs Unopposed

Motion for Summary Final Order (RespondentÔs Motio n), filed January 28,

2022. Petitioners do not oppose RespondentÔs Motion.

S TATEMENT OF T HE C ASE

On April 28, 2021, Petitioners filed a Petition for Benefits, Under Protest,

with the Division of Administrative Hearings (DOAH) for a determination of

compe nsability under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan). The Petition named Samir Shakfeh, M.D. , a s the

physician who provided obstetric services to Mary Mathis, for the birth of

Kymani Brown (Kymani), at Oak Hill Hospital, i n Brooksville, Florida, on

March 16, 2019.

On May 17, 2021, DOAH mailed a cop y of the Petition to Respondent,

Dr. Shakfeh, and Oak Hill Hospital via certified mail. Respondent was served

with the same on May 19, 2021.

Motions to intervene were filed, and granted, on behalf of HCA Health

Services of Florida, Inc., d/b/a Oak Hill Hospital; Samir Shakfeh, M.D., and

Citrus Specialty Group, Inc., d/b/a Advanced WomenÔs Health Center; and

Ahmed Kafafy, M.D., Kirsy Acosta - Ortiz, CRNA, and Anesthesiologist

Ass ociates Oak Hill Division, P.A. (Intervenors).

On July 16, 2021, Respondent filed its Response to the Petition, wherein

Respondent maintained that the claim was not compensable because Kymani

did not sustain a Ñbirth - related neurological injury,Ò as defin ed by

section 766.302 (2), Florida Statutes. Respondent request ed that a bifurcated

hearing be scheduled to address the issues of compensability and notice first ;

and, if required, to address the amount of an award in a se parate hearing.

On July 22, 2021, the undersigned issued an Order Requiring Response

directing the parties to communicate and advise , on or before August 13,

2021, whether a final hearing would be required; and, if so, an estimate of the

time required to conduct the hearing and several mu tually agreeable dates to

conduct the hearing .

Pursuant to RespondentÔs Status Report, filed August 12, 2021, the

parties jointly requested an extension of time to provide a case management

plan, including dates for a final hearing. The requested extensio n of time was

granted by O rder dated August 16, 2021. The parties provided a proposed

case management plan on September 13, 2021, and the same was adopted by

O rder dated September 17, 2021. The final hearing was scheduled for

January 27, 2022.

Thereafter , the parties engaged in robust discovery. On December 15,

2021, the partiesÔ Joint Motion for Extension of Discovery Deadline and to

Continue Final Hearing was filed. An O rder granting the same was issued on

December 17, 2021, and the final hearing was re scheduled for March 8, 2022.

On January 27, 2022, Intervenors filed their Joint Notice to Withdraw

Motions to Intervene, which was granted the same day. On January 28, 2022,

RespondentÔs Motion was filed. RespondentÔs Motion contends that

PetitionersÔ cl aim is not compensable as Kymani did not suffer a birth - related

neurological injury, as defined in section 766.301(2), and, therefore, the

Petition is due to be dismissed with prejudice. As noted above, RespondentÔs

Motion is unopposed.

F INDINGS OF F ACT

1. Kymani was born on March 16, 2019, at Oak Hill Hospital in

Brooksville, Florida.

2. Kymani was a single gestation and her weight at birth exceeded 2,500

grams.

3. As set forth in greater detail below, the unrefuted evidence establishes

that Kymani did not sustain a Ñbirth - related neurological injury,Ò as defined

by section 766.302(2).

4. Donald Willis, M.D., a board - certified obstetrician specializing in

maternal - fetal medicine, was retained by Respondent to review the pertinent

medical records of Mary Mathis and Kymani and opine as to whether Kymani

sustained an injury to her brain or spinal cord caused by oxygen deprivation

or mechanical injury that occurred during the course of labor, delivery, or

resuscitation in the immediate post - delivery period i n a hospital.

5. In his report, dated July 8, 2021, Dr. Willis summarized his findings

and opinions, in pertinent part, as follows:

In summary, labor at term was complicated by

epidural anesthesia resulting in a high block with

resulting maternal respir atory distress and

hypotension. During maternal resuscitation, FHR

dropped to the 80Ôs and was Ñnot coming back.Ò

Cesarean section was done for FHR decelerations.

The baby was depressed at birth with Apgar scores

of 1/4/7 and required intubation and mechan ical

ventilation. Seizure activity developed shortly after

birth. Cooling protocol was initiated for suspected

HIE. After cooling, EEG showed no seizure activity

and MRI on DOL 9 was reported as normal.

Although there was some degree of oxygen

deprivatio n to the baby at birth and during the

immediate resuscitation period, fortunately, the

oxygen deprivation did not result in any

identifiable brain injury.

6. Respondent further retained Luis E. Bello - Espinosa, M.D., a pediatric

neurologist. Dr. Bello - Espi nosa was retained to review the available medical

records and conduct an examination of Kymani to determine whether she

suffers from an injury , which rendered her permanently and substantially

mentally and physically impaired; and whether such injury is co nsistent with

an injury caused by oxygen deprivation or mechanical injury occurring during

the course of labor, delivery, or the immediate post - delivery period in the

hospital.

7 . Dr. Bello - Espinosa conducted the examination on June 11, 2021. In his

repor t following the examination, he issued his findings, which are set forth,

in pertinent part, as follows:

Kymani is a 2 - year 3 - month - old girl with a history

of perinatal depression, initial low APGAR scores

who required vigorous stimulation and assisted

r espiratory ventilation during the immediate

postnatal period, including endotracheal

intubation. A hypoxic - ischemic encephalopathy was

suspected due to brief seizure - like activity 30 -

minutes after birth. She did not receive antiseizure

medications. She rec eived therapeutic

hypothermia. However, there were no perinatal or

postnatal electroclinical or electrographic seizures

under continuous 72 - hour video EEG monitoring

session. Her neurological examination was normal.

An MRI of the brain, including an MR

Spe ctroscopy, obtain ed on day 6th of life, was

normal.

On her evaluation today, Kymani has a history of

delayed acquisition of motor and language skills.

Her mother stated Kymani had frequent brief

clinical [sic] of what appears to be generalized tonic

seizu res, mainly febrile, during her first year of life.

The examination today shows no evidence of

cranial nerve dysfunction, no evidence of abnormal

upper or lower motor neuron signs, neither

evidence of myelopathic, myopathic, or

neuromuscular junction or my opathic processes.

8. In his report, Dr. Bello - Espinosa opines that Kymani did not have:

(1) substantial physical or mental impairments; (2) permanent physical or

mental impairments; (3) injuries due to oxygen deprivation of the brain; or

(4) permanent mental or physical injuries related to the labor, delivery , or

immediate post - delivery periods.

9. The undisputed and unopposed findings and opinions of Drs. Willis and

Bello - Espinosa are credited. The undersigned finds that Kymani did not

sustain an inj ury to the brain or spinal cord caused by oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or resuscitation

in the immediate post - delivery period in a hospital , which rendered her

permanently and substantially mentally an d physically impaired .

C ONCLUSIONS OF L AW

10 . DOAH has jurisdiction over the parties to and the subject matter of

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

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

providing co mpensation, irrespective of fault, for birth - related neurological

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

§ 766.303(1), Fla. Stat .

1 2 . 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 compensation with DOAH. §§ 766.302(3) , 766.303(2) ,

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

days from the date of service of a complet e claim ... 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.Ò

§ 766.305(4), Fla. Stat .

1 3 . If Respondent determines that the inj ury alleged is a claim that is a

compensable birth - related neurological injury, it may award compensation to

the claimant, provided that the award is approved by the administrative law

judge (ALJ) to whom the claim has been assigned. § 766.305(7), Fla. Stat . If,

on the other hand, compensability is disputed, the dispute must be resolved

by the assigned ALJ in accordance with the provisions of chapter 120, Florida

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

1 4 . In its present pos ture, the ALJ is required to make the following

threshold determination based upon 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 l aw 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 impaired, a

rebuttable presumption shall arise that the injury

is a birth - related neurological injury as defined in

s. 766.303(2) .

§ 766.309(1), Fla. Stat .

15 . The term Ñbirth - related neurological injuryÒ is defined in

section 766.302(2) as follows:

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 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.

16. If the ALJ determines that the injury is n ot a birth - related

neurological injury, he or she is required to enter an order and immediately

provide a copy to the parties. § 766.309(2), Fla. Stat.

17. The un disputed and unopposed e vidence establishes that there was

not an injury to KymaniÔs brain ca used by oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital , which rendered her

permanently and substantially mentally and physically impaired. Thus, it is

concluded that she did not sustain a compensable birth - related neurological

injury, as defined in section 766.302(2), and, therefore, is not eligible for

benefits under the Plan.

C ONCLUSION

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

that RespondentÔs Motion is granted and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 2n d day of February , 2022 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

Administrative Law Judge

1230 Apalachee Parkway

Tallahas see, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2n d day of February , 2022 .

C OPIES F URNISHED :

(via certified mail)

Simone Marstiller , Secretary Amie Rice, Investigation Manager

Agency for Health Care Admin istration Consumer Services Unit

2727 Mahan Drive, Mail Stop 1 Department of Health

Tallahassee, Florida 32308 4052 Bald Cypress Way, Bin C - 75

(Certified No. 7021 2720 0000 3800 5117 ) Tallahassee, Florida 32399 - 3275

(Certified No. 7021 2720 0000 3800 5124 )

Kim Kellum, Esquire

Agency for Health Care Administration Thomas M. Hoeler, Esquire

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

Tallahassee, Florida 32308 2727 Mahan Drive, Mail Stop 3

(Certified No. 7021 2720 0000 3800 5148 ) Tallahassee, Florida 32308

(Certified No. 7021 2720 0000 3800 5131 )

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A. Robin Treto, Esquire

444 Seabreeze Boulevard , Suite 900 Paul | Knopf | Bigger

Daytona Beach, Florida 32118 Suite 200

(Certified No. 7021 2720 0000 3800 5155 ) 840 South Denning Drive

Winter Park, Florida 32789

Oak Hill Hospital (Certified No. 7021 2720 0000 3800 5162 )

Attention: Risk Management

11375 Cortez Boulevard

Brooksv ille, Florida 34613

(Certified No. 7021 2720 0000 3800 5193 )

Samir Mohammad Shakfeh, M.D. Kenney Shipley, Executive Director

221 Mariner Boulevard Florida Birth - Related Neurological

Spring Hill, Florida 3 4609 Injury Com pensation Association

(Certified No. 7021 2720 0000 3800 5179 ) Post Office Box 14567

Tallahassee, Florida 32317

(Certified No. 7021 2720 0000 3800 5186 )

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 Appea l 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 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 clerk of the

appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla.

Birth - Related Neur ological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).