21-002314N Shayla R. Gordon On Behalf Of And As Parent And Natural Guardian Of Ariel L. Ivey, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 8, 2021.

Summary: Summary final order of dismissal entered as evidence established minor did not sustain a birth-related neurological injury as defined by section 766.302.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

S HAYLA R. G ORDON O N B EHALF OF A ND A S

P ARENT A ND N ATURAL G UARDIAN OF

A RIEL L. I VEY , A M INOR ,

Petitioner ,

vs. Case No. 21 - 2314N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This matter came before the undersigned on RespondentÔs Motion for

Summary Final Order (RespondentÔs Motion), filed September 23, 2021.

Petitioner does not oppose RespondentÔs Motion.

S TATEMENT OF T HE C ASE

On July 23, 2021, Petitioner filed a Petition for Benefits Pursuant to

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

Administrative Hearings (DOAH) for a determination of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Richard Kreinest , M.D., a s the physician who

provided obstetric services to Shayla R. Gordon, for the birth of Ariel L. Ivey

(Ariel) at UF Shands Hospital, in Gainesville, Florida, on December 27, 2016.

On August 2, 2021, DOAH mailed a cop y of the Petition to Respondent,

Dr. Kreinest, and UF Shands Hospital via certified mail. Respondent was

served with the same on Augus t 3, 2021.

On August 26, 2021, Respondent filed its Response to Petition for

Benefits, wherein Respondent maintained that the claim was not

compensable because Ariel did not sustain a Ñbirth - related neurological

injury,Ò as defined by section 766.302 (2) , Florida Statutes. Respondent

request ed that a bifurcated hearing be scheduled to address the issues of

compensability and notice d first, and, if required, to address the amount of

an award in a second hearing.

On September 9, 2021, the undersigned issue d an Order Requiring

Response directing the parties to communicate and advise , on or before

September 23, 2021, whether a final hearing would be required; and, if so, an

estimate of the time required to conduct the hearing and several mutually

agreeable da tes to conduct the hearing .

On September 23, 2021, Respondent filed a status report indicating that it

did not believe a hearing was necessary; however, Respondent had not been

able to obtain PetitionerÔs position. On the same date, Respondent filed

Respo ndentÔs Motion.

At PetitionerÔs request, a telephonic status conference was conducted on

October 4, 2021, with Petitioner and Respondent in attendance. The

undersigned advised Petitioner that additional time may be provided, if

necessary, to respond to R espondentÔs Motion. Petitioner advised, however,

that Petitioner was not opposing RespondentÔs Motion.

F INDINGS OF F ACT

1. Ariel was born on December 27, 2016, at UF Shands Hospital, in

Gainesville, Florida.

2. Ariel was a single gestation and her weigh t at birth exceeded 2,500

grams.

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

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

section 766.302(2).

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

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

medical records of Ms. Gordon and Ariel and opine as to whether Ariel

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

or mech anical injury that occurred during the course of labor, delivery, or

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

5. In his report, dated August 12, 2021, Dr. Willis summarized his

findings and opinions, in pertinent part, as follows :

The mother was a 20 year old G1 involved in a

high - velocity automobile accident with airbag

deployment at 39 weeks gestational age. Fetal

bradycardia was noted on arrival to the hospital

with a fetal heart rate in the 50Ôs. Placental

abruption was susp ected and she was taken

directly for emergency Cesarean section delivery.

Monitoring for uterine contractions and maternal

pelvic exam for cervical dilation were not done due

to the emergent nature of the motherÔs condition.

There was no history suggesti ng that the mother

was in labor at time of the accident.

* * *

In summary, the mother was involved in a high -

velocity automobile accident, which resulted in

placental abruption and fetal bradycardia. The

mother was not in labor. Emergency Cesarean

secti on was done with delivery of a severely

depressed baby. Apgar scores were 0/0/1. The

newborn hospital course was complicated by multi -

system organ failures, consistent with in - utero

oxygen deprivation. MRI was consistent with HIE.

The babyÔs brain injury o ccurred prior birth [sic]

and would not be considered a birth related injury.

6. In his supporting affidavit, Dr. Willis opines, to a reasonable degree of

medical probability, that ArielÔs brain injury occurred prior to birth and when

Ms. Gordon was not in labor.

7. Respondent also retained Raj D. Sheth, M.D., a pediatric neurologist, to

review the medical records of Ms. Gordon and Ariel, and to conduct an

Independent Medical Examination (IME) of Ariel. The purpose of his review

and IME was to determine wh ether Ariel suffered from a permanent and

substantial mental and physical impairment as a result of an injury to the

brain or spinal cord caused by oxygen deprivation or mechanical injury in the

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

period.

8. Dr. Sheth reviewed the pertinent medical records and, on August 25,

2021, conducted the IME. In his report, prepared the same day as the

examination, he summarized his findings and opinions , which are set forth,

in pertinent part, as follows:

In SUMMARY, Ariel was born by emergency

laparotomy/CS due to uterine trauma sustained in

a severe motor vehicle collision which resulted in

placental separation and subsequently vaginal

hemorrhage. On delivery findings and by Apgar

scores she sustained severe hypoxic - ischemic

encephalopathy and had to be resuscitated. Her

initial EEG was isoelectric, and she required brain

cooling. Her MRI scan of the brain obtained in the

NICU indicated severe diffuse hypoxic - ischemic

encephalopathy with evid ence of blood intra -

cranially. ArielÔs examination reveals severe diffuse

spastic quadriparesis right side more affected than

the left with delays in gross motor, fine motor,

personal social and language areas that are

significant. She is not able to ambul ate or feed

independently.

* * *

Based on the severe motor vehicle accident and

traumatic spleen that mother sustained prior to

arrival at ER and the placental separation and

vaginal bleeding that was observed in the ER prior

to the laparotomy, the i njury to the brain occurred

prior to arrival in the ER and prior to labor,

delivery, or immediate post delivery period.

9. In his supporting affidavit, Dr. Sheth opines, to a reasonable degree of

medical probability, that the injury to ArielÔs brain did not occur in the course

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

hospital .

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

and Sheth are credited. The undersigned finds that Ariel did not sustai n an

injury 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.

C ONCLUSIONS OF L AW

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

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

12 . The Plan was established by the Legislature 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 .

1 3 . 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 compen sation 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 complete 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 4 . If Respondent determines that the injury 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 r esolved

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

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

1 5 . In its present posture, the ALJ is required to make the following

threshold determination based up on 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

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 .

16 . 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

leas t 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

immedia te postdelivery period in a hospital, which

renders the infant permanently and substantially

mentally and physically impaired.

17. If the ALJ determines that the injury is not a birth - related

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

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

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

not an injury to ArielÔs brain caused by oxygen deprivation or mechanical

injury occurring in the course of labor, d elivery, or resuscitation in the

immediate post - delivery period in a hospital. To the contrary, the available

evidence establishes that the injury to ArielÔs brain occurred prior to labor,

delivery, or resuscitation. 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 M otion is granted and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 8 th day of October, 2021 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

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 8 th day of October, 2021 .

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 3

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

Tallahassee, Florida 32399 - 3275 (Certified No. 7020 2450 0002 1970 6449)

(Certified No. 7020 2450 0002 1970 6111)

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 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7020 2450 0002 1970 6432)

(Certified No. 7020 2450 0002 1970 6104)

Tana D. Storey, Esquire

Ke nney Shipley, Executive Director Rutledge Ecenia, P.A.

Florida Birth - Related Neurological Suite 202

Injury Compensation Association 119 South Monroe Street

Post Office Box 14567 Tallahassee, Florida 32301

Tallahassee, Florida 32317 (Certified No. 7020 2450 0002 1970 6425)

(Certified No. 7020 2450 0002 1970 6098)

Richard Kreinest, M.D.

Shayla R. Gordon 4037 Northwest 86 Terrace

#20 Gainesville, Florida 32606

6010 Southeast 21 1th Street (Certified No. 7020 2450 0002 1970 641 8)

Hawthorne, Fl orida 32640

(Certified No. 7020 2450 0002 1970 6128) UF Shands Hospital

Attention: Risk Management

Richard Kreinest, M.D. 1515 Southwest Archer Road

1600 Southwest Archer Road Gainesville, Florida 32608

Gainesville, Florida 32603 (Certified No. 7020 2450 0002 1970 6395)

(Certified No. 7020 2450 0002 1970 6401)

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 ap peal 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

administrative appeal with t he 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).