21-002152N Shyany Knight And Gudiel Juarez Aguilar, On Behalf Of And As Parents And Natural Guardians Of Gianno Knight, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 6, 2022.

Summary: Injuries sustained in childbirth were not birth-related neurological injuries. Petition dismissed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S HYANY K NIGHT A ND G UDIEL J UAREZ

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

A ND N ATURAL G UARDIANS OF G IANNO

K NIGHT , A M INOR ,

Petitioners ,

vs. Case No. 21 - 2152N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SS OCIATION ,

Respondent .

/

S UMMARY F INAL O RDER

On November 16, 2021, Respondent, Florida Birth - Related Neurological

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

Order, which is due for consideration. The Motion for Summary Final Order

is unopposed, and relies upon the affidavits of Donald C. Willis, M.D., and

Raj D. Sheth, M.D., filed December 3, 2021, as well as the reports from b oth

physicians filed with NICAÔs Response to Petition for Benefits.

S TATEMENT O F T HE I SSUE

The issue to be determined is whether the infant, Gianno Knight

(Gianno), suffered a birth - related neurological injury as that term is defined

in section 766.302(2) , Florida Statutes (2019).

P RELIMINARY S TATEMENT

On July 1, 2021, Shyany Knight and Gudiel Juarez Aguilar, as parents

and natural guardians of Gianno, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. , on behalf of Gianno, seeking a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named Todd

Rasner, M.D., as the physician providing obstetrical services and Baptist

Medical Center South as the hospital w here Gianno was born on

May 29, 2020.

NICA, Dr. Rasner, and Baptist Medical Center South were served with

the Petition by certified mail on July 1 3, 2021. Certified mail return receipts

were received indicating service on each of them.

On August 23, 202 1, NICA filed a response to the Petition, asserting that,

based on the review of the medical records provided; the independent medical

examination performed ; and the expert medical reports prepared based on

the records and the examination, Gianno did not s uffer a birth - related

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

Petitioner s did not respond to the Motion for Summary Final Order, and

the Motion represents that Petitioners do not intend to challenge NICAÔs

position on compensabi lity.

F INDINGS O F F ACT

1. Gianno was born May 29, 2020, at Baptist Medical Center South.

2. Neither party disputes that Dr. Rasner was a participating physician in

the NICA program at the time of GiannoÔs birth.

3. Dr. Donald C. Willis is a physician boa rd - certified in obstetrics and

gynecology and maternal - fetal medicine. He reviewed the medical records

related to GiannoÔs birth, and prepared a report for NICA based on his

review . By affidavit filed December 3, 2021, Dr. Willis affirmed that the

opinions contained in his report are based on a reasonable degree of medical

probability.

4. Dr. WillisÔs report includes the following summary:

In summary, labor was induced for fetal

macrosomia . Vacuum and forceps were used to

assist vaginal delivery. Delivery w as complicated

by shoulder dystocia. Apgar scores were 1/8. The

baby suffered a fractured humerus, unilateral

paralysis of the diaphragm, subdural hemorrhage

and subgaleal hemorrhage related to birth.

Expanding subgaleal hemorrhage resulted in blood

loss a nd hypotension. The newborn hospital course

was complicat ed by multisystem organ failures,

consistent with birth related oxygen deprivation.

MRI on DOL 3 was read by Neuro - Radiology as

normal. Despite the above complicated newborn

hospital course, it does not appear the birth - related

complications resulted in identifiable brain injury.

There was an obstetrical even t that resulted in

some degree of oxygen deprivation during delivery

and continuing into the i mmediate post delivery

period. Fortunately, based on available medical

records, it does not appear that the oxygen

deprivation result[ed] in identifiable brain injury.

5. At NICAÔs request, Gianno was examined by Rash D. Sheth, M.D., a

board - certified pediatric neurologist. Dr. ShethÔs report was submitt ed with

NICAÔs response to the Petition, and in his affidavit filed December 3, 2021,

Dr. Sheth affirmed that the opinions expressed in the report are within a

reasonable degree of medical certainty.

6. The summary in Dr. ShethÔs report states the followi ng in pertinent

part:

In response to your question:

1. ÑDoes the child suffer from both a substantial

mental impairment and a substantial physical

impairment?Ò

As of the time of this examination [when Gianno

was 14 months old] and evaluation GiannoÔs case

indicates that he does suffer from a right ErbÔs palsy

[as] a direct result of delivery with shoulder

dystocia. Additionally, he sustained a left humeral

fracture that has healed well and is not expected to

be a source of limitation. The Erbs palsy is

per manent and surgical remedies for this are likely

to have limited success. Regarding, su rgery there is

a optimal time window for his evaluation and

surgery as well mother is in the process of

evaluating this. With regards to hypoxic ischemic

encephalopathy the evidence suggest[s] that he did

sustain hypoxic ischemic encephalopathy although

did not sustain neonatal seizures. È He did not

meet the criteria for brain cooling. In addition to

this he has an expressive language delay and gross

motor delay as descr ibed above. Taken together,

Gianno Knight sustained substantial physical

impairment with some additional mental

impairment.

2. In response to your question Ñmental and physical

impairments likely to be permanent?Ò

As of the time of this examination his p hysical

impairment is likely to be permanent as a result of

his right Erbs palsy.

3. In response to your question ÑAre such permanent

and substantial mental and physical impairments

consistent with an injury to the brain acquired due

to oxygen deprivation or mechanical injury

occurring during labor delivery or the immediate

post delivery period?Ò

Based on the nature of his left humeral fracture and

right Erbs palsy which resulted from a vaginal

delivery by forceps for a shoulder dystocia his

findings are consistent with birth - related trauma

that resulted directly in the right ErbÔs palsy. He

also suffered mild hypoxic ischemic encephalopathy

with resulting delays as described above.

As such, Gianno KnightÔs case would not meet the

criteria for compensati on under the NICA program.

7. Taken together, Dr. WillisÔs and Dr. ShethÔs opinions indicate that

while there was a birth - related injury that caused some level of physical and

mental injury, it does not appear that the injuries meet the definition of a

bi rth - related neurological injury as defined by section 766.302(2).

C ONCLUSIONS O F L AW

8. The Division of Administrative Hearings ( DOAH ) has jurisdiction over

the parties and the subject matter of these proceedings pursuant to sections

120.569, 120.57(1), a nd 766.304, Florida Statutes (2021).

9. The Legislature established the 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. £ 766.30 3(1),

Fla. Stat.

10. An injured infant and certain other statutorily - identified people,

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 - re lated

neurological injury.

11. If NICA determines that there is a birth - related neurological 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 dispute must be resolved by the administrative law

judge in accordance with chapter 120. §§ 766.304, 766.30, and 766.31,

Fla. Stat.

12. The initial inquiry is whether the i nfant 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 sin gle 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 in resuscitation in the

immediate postdelivery peri od 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.

13. If the ad ministrative law judge determines that the infant has

sustained a brain or spinal cord injury caused by oxygen deprivation or

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

rendered permanently and substantially mentally and phy sically impaired,

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

birth - related neurological injury.

14. The evidence presented, through the physician reports and affidavits,

do es not establish a birth - related injury as secti on 766.302(2) defines that

term. First, while Dr. Willis concludes there was an obstetrical event that

caused some deprivation of oxygen, he finds that the records do not appear to

support an identifiable brain injury. Similarly, although Dr. Sheth reports

that the child has ErbÔs palsy associated with shoulder dystocia, he does not

report that this injury, while permanent, is the result of any spinal or brain

injury. Finally, w hile developmental delays for a 14 - month old are reported,

there is no indicatio n that these delays constitute permanent deficits of the

type that would meet the definition provided in section 766.302(2).

Accordingly, it is concluded that Gianno did not suffer a birth - related

neurological injury 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 G RANTED . PetitionerÔs claim for benefits under the

Plan is dismissed.

D ONE A ND O RDERED this 6th day of January , 202 2 , in Tallahassee, Leo n

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 6th day of January , 202 2 .

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. 70211970222248608595)

(Certified No. 70211970000048608588)

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

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. 70211970000048608618)

(Certified No. 70211970000048608601)

Grant A. Kuvin, Esquire Kenney Shipley, Executive Director

Morgan & Morgan, P.A. Florida Birth - Related Neurological

76 South Laura Street, Suite 1100 Injury Compensation Association

Jacksonville, Florida 32202 Post Office Box 14567

(Certified No. 7021197000004 8608625) Tallahassee, Florida 32317

(Certified No. 7021197 0000048608632)

M. Mark Bajalia, Esquire

Bajalia Law Baptist Medical Center South

Suite 301 Attention: Risk Management

11512 Lake Mead Avenue 14550 Old St. Augustine Road

Jacksonville, Florida 32256 Jacksonville, Florida 32258

(Certified No. 702119700000 48608649) (Certified No. 70211970000048608656)

Tod d Rasner, M.D.

Building 400

11945 San Jose Boule vard

Jacksonville, Florida 22223

(Certified No. 7021197000 0048608663)

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law j udge 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 notice of

administr ative 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 Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).