21-002317N Janna And Shane Holcombe, Individually And As Parents And Natural Guardians Of Shane Holcombe, Jr., Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 25, 2022.

Summary: Summary final order granted where it was undisputed that, although an oxygen deprivation event occurred during labor that caused a brain injury, it did not result in permanent and substantial mental and physical impairment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ANNA A ND S HANE H OLCOMBE ,

I NDIVIDUALLY A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF S HANE

H OLCOMBE , J R ., M INOR C HILD ,

Case No. 21 - 2317N

Petitioners ,

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIAT ION ,

Respondent,

and

B AYFRONT H MA M EDICAL C ENTER , LLC

D/B/A B AYFRONT ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

On January 13, 2022, Respondent, Florida Birth - Related Neurological

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

Order. The Motion is unopposed and relies upon the reports of Donald

Willis, M.D., and Michael Duchowny, M.D., filed January 13, 2022.

S TATEMENT OF T HE I SSUE

W hether Shane Holcombe, Jr. (ÑShaneÒ) , suffered a Ñ birth - related

neurological injury ,Ò as defined by section 766.302(2), Fl orida Statutes (2021) ,

for which compensation should be awarded under the Florida Birth - Related

Neurological Injury Comp ensation Plan (ÑPlanÒ) .

P RELIMINARY S TATEMENT

On July 26, 2021 , Petitioners Janna and Shane Holcombe, individually

and as parents and natural guardians of Shane, a minor, filed a Petition f or

B enefits Pursuant to Florida Statutes Section 776.301 et seq., with the

Florida Division of A dministrative Hearings (ÑDOAHÒ). The Petition named

Solimar Jimenez Diaz , M.D., and Amy Johnson, C.N.M., as the obstetrician

and certified nurse midwife, respectively, who delivered Shane on June 20,

2019 , and Bayfront Medical Center (ÑHospitalÒ) as the H os pital where he was

born. DOAH sent copies of the Petition via Certified U.S. Mail to NICA ,

Dr. Diaz, Nurse Midwife Johnson, and the Hospital on August 3, 2021 .

On August 11, 2021, the Hospital filed a Petition to Intervene in this

proceeding. The undersigned granted that motion on August 16, 2021.

After receiving two extensions, NICA filed its Response to Petition for

Benefits on November 12, 2021. NICA argued that its experts reviewed the

medical records, conducted an ex amination of Shane, and opined that the

claim was not compensable. In an Order to Show Cause dated November 16,

2021, the undersigned directed Petitioners and Intervenor to file a status

report providing their respective positions on the issue of compensab ility. On

November 23, 2021, NICA filed a Status Report indicating that Intervenor

believed the claim was compensable and, thus, a final hearing was necessary.

The undersigned scheduled the final hearing for February 28, 2022.

The parties thereafter eng aged in discovery and IntervenorÔs expert

performed an independent medical examination (ÑIMEÒ) of Shane. Based on

that discovery, NICA filed an unopposed Motion to Cancel Final Hearing on

January 13, 2022, advising that a final hearing was no longer necess ary

because all parties now agreed that the claim was not compensable. In an

Order dated January 14, 2022, the undersigned cancelled the final hearing.

On January 13, 2022, NICA filed its Motion for Summary Final Order.

Petitioners and Intervenor did not respond to the m otion, which represents

that neither party disputes NICA Ô s assertion that all parties agree with its

posi tion on compensability .

F INDINGS OF F ACT

1. Petitioners are the parents and legal guardians of Shane.

2. On June 20, 2019 , Ms. Holcom be gave birth to Shane, a single gestation

of 37 weeks, at the Hospital . Shane was delivered by spontaneous vaginal

birth and weighed 3,460 grams .

3. Dr. Diaz and Nurse Midwife Johnson provided obstetric al services and

delivered Shane .

4. The undisputed av ailable evidence consists of reports of two physicians:

Dr. Willis, a board - certified obstetrician; and Dr. Duchowny, a board - certified

pediatric neurologist.

5 . Dr. Willis reviewed the medical records and offered his opinions about

ShaneÔs delivery in a r eport dated August 20, 2021 . Dr. Willis summarized

his opinions as follows:

In summary, labor was induced for maternal

hypertension. The FHR tracing was non - reassuring

during last 30 to 40 minutes prior to birth. The

baby was depressed at birth with APGAR scores

2/3/5. Cord blood pH was 7.04 with a base excess of

- 11. Seizure activity began about 12 hours after

birth. MRI on DOL 7 showed an intraventricular

hemorrhage and MRI spectroscopy was suggestive

of [hypoxic ischemic encephalopathy or] HIE.

There wa s an apparent obstetrical event that

resulted in loss of oxygen to the babyÔs brain during

labor, delivery and continuing into the immediate

post - delivery period. The oxygen deprivation

resulted in brain injury. I am not able to comment

about the severity of the injury.

6. Dr. Duchowny reviewed the medical records, conducted an IME on

Shane on November 8, 2021, and offered his opinions as to whether Shane

suffers from permanent and substantial mental and physical impairment in a

report dated November 9, 20 2 1 . Dr. Duchowny summarized his opinions as

follows:

In summary, Shane Ô s evaluation reveals a modest

delay in expressive language, hypotonia and a

history of epilepsy. He has social issues that raise a

question of autism spectrum disorder. In contrast,

Sha ne Ô s other domains of cognitive function

including receptive language, motor milestones,

behavior and attention span are well - developed and

age - appropriate.

* * *

Based on review of the medical records and the

findings on the Zoom evaluation, I b elieve that

Shane does not have either a substantial mental or

motor impairment. I am therefore not

recommending consideration for Shane Ô s

acceptance in the NICA program .

7 . The opinions of Dr. Willis and Dr. Duchowny indicate that, although

there was an oxygen deprivation event during labor, delivery, and the

immediate post - delivery period that caused Shane to suffer a brain injury, it

did not result in substantial mental and physical impairment sufficient to

qualify as a Ñbirth - related neurological injur y,Ò as defined in section

766.302(2).

C ONCLUSIONS OF L AW

8. DOAH has jurisdiction over the parties and exclusive jurisdiction over

the subject matter of this case. § 766.304, Fla. Stat .

9. The Legislature established the Plan Ñ for the purpose of providing

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

claims Ò occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

10. An injured infant, his or her personal representative, parents,

dependents, and next of kin may seek com pensation under the Plan by filing

a claim for compensation with DOAH. §§ 766.302(3), 766.303(2), and

766.305(1), Fla. Stat. NICA, which administers the Plan, has 45 days from

the date that a complete claim is served to file a response and to submit

releva nt written information as to whether the injury is a birth - related

neurological injury. § 766.305(4), Fla. Stat.

11. If NICA determines that the infant suffered a compensable birth -

related neurological injury, it may award compensation to the claimants, as

approved by the assigned administrative law judge (ÑALJÒ) . § 766.305(7), Fla.

Stat. But, if NICA disputes the claim, as it does here, the dispute must be

resolved by an ALJ in accordance with chapter 120 , Florida Statutes .

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

12. In determining compensability, the ALJ first determines if the child

suffered a Ñbirth - related neurological injuryÒ based on the available evidence.

13. Pursuant to section 766.302(2), the term Ñ birth - related neurological

injury Ò is define d as follows:

[I] njury 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 mechanic al 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 shall apply to live births o nly and

shall not include disability or death caused by

genetic or congenital abnormality.

Thus, a bir th - related neurological injury has four components: Ñ (1) an injury

to the brain or spinal cord; (2) which is caused by oxygen deprivation or

mechanical i njury; (3) during labor, delivery, or resuscitation in the

immediate postdelivery period; and (4) which renders the infant permane ntly

and substantially impaired . Ò Bennett v. St. VincentÔs Med. Ctr., Inc. , 71 So. 3d

828, 837 (Fla. 2011).

14. Petitioners ha ve the burden to establish by a preponderance of the

evidence Ñ 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. Ò

§ 766.309(1)(a), Fla. Stat.; see also § 120.57(1)(j), Fla. Stat. (providing that

findings of fact, except in penal and licensure disciplinary proceedings or as

provided by statute, Ñ shall be based upon a preponderance of the evidence Ò );

Balino v. Dep Ô t of H RS , 348 So. 2d 349, 350 (Fla. 1st DCA 1977) (holding

generally that Ñ the burden of proof, apart from statute, is on the party

asserting the affirmative of an issue be fore an administrative tribunalÒ ).

15. If Petitioners meet their burden, section 766.309(1) provides that there

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

injury. Conversely, if Petitioners do not meet their burden, the undersigned is

required to issue an order dismissing the P etition. I d.

16 . Based on the Findings of Fact above, the undisputed available

evidence establishes that, although there was an oxygen deprivation event

occurring during labor, delivery, and the immediate post - delivery period that

caused Shane to suffer a brain inju ry, it did not result in substantial mental

and physical impairment. Thus, Shane did not suffer a birth - related

neurological injury and he is not eligible for benefits under the Plan .

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law here in, Petitioner s Ô

claim is not compensable, NICAÔs unopposed Motion for Summary Final

Order is granted, and the Petit ion is dismissed with prejudice.

D ONE A ND O RDERED this 25th day of January , 2022 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

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 25th day of January , 2022 .

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. 7021 1970 0000 4860

( Certified No. 7021 1970 0000 4860 7123) 7185)

Kim Kellum, Esquire Thomas M. Hoeler, 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. 7021 1970 0000 4860 7130) (Cer tified No. 7021 1970 0000 4860

7192)

Kenney Shipley, Executive Director Armando T. Lauritano, Esquire

Florida Birth - Related Neurological Morgan & Morgan

Injury Compensation Association 201 North Franklin Street , 7 th Floor

Post Office Box 14567 Tampa, Florida 33602

Tall ahassee, Florida 32317 (Certified No. 7021 1970 0000 4860

(Certified No. 7021 1970 0000 4860 7147) 7208)

David P. Ferrainolo, Esquire Brooke M. Gaffney, Esquire

Ferrainolo Law Group, PA Smith, Stout, Bigman & Brock, P.A.

4950 West Kennedy Boulevard , Suite 320 44 4 Seabreeze Boulevard , Suite 900

Tampa, Florida 33609 Daytona Beach, Florida 32118

(Certified No. 7021 1970 0000 4860 7154) (Certified No. 7021 1970 0000 4860

7215)

Amy Johnson, CNM

601 5 th Street South, No. 5 Bayfront Medical Center

St. Petersburg, Florida 33701 Attention: Risk Management

(Certified No. 7021 1970 0000 4860 7161) 701 6 th Street South

St. Petersburg, Florida 33701

Solimar Jimenez Diaz, M.D. (Certified No. 7021 1970 0000 4860

601 5 th Street South, No. 5 7222)

St. Petersburg, Florida 33701

(Certified No. 7021 1970 0000 4860 7178)

N OTICE 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

Procedure. 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 fe es 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).