21-002374N Tania M. Russo And China Bailey, Individually And As Parents And Next Friends Of Knox Russo, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 21, 2021.

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

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

T ANIA M. R USSO A ND C HINA B AILEY ,

I NDIVIDUALLY A ND A S P ARENTS A ND N EXT

F RIENDS OF K NOX R USSO , A M INOR ,

Petitioners ,

Case No. 21 - 2374N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

O RLANDO H EALTH , I NC , D / B / A O RLANDO

H EALTH S OUTH L AKE H OSPITAL ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came on for cons ideration upon the Motion for Summary Final

Order filed by Respondent, Florida Birth - Related Neurological Injury

Compensation Association (NICA), on October 14, 2021.

S TATEMENT OF T HE C ASE

On July 26, 2021, Petitioners , Tania M. Russo and China Bailey,

in dividually and as parents and next friends of Knox Russo (Knox), a minor,

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 identified Tamara Richards, M.D., as the physician who

provided obstetric services at the birth of Knox on January 8, 2020, at

Orlando Health South Lake Hospital , located in Lake County, Florida.

DOAH served Dr. Richards, Orlando Health South Lake Hosptial, and

NICA with a copy of the Petition on August 3, 2021.

On September 29, 2021, NICA filed a Response to Petition for Benefits,

asserting that Knox did not s ustain a Ñbirth - related neurological injury , Ò as

that term is defined in section 766.302(2), Florida Statutes, and requested

that a hearing be scheduled to determine compensability. On October 8, 2021,

the undersigned entered an Order that required the par ties to confer and

advise concerning the need for a hearing, if any, and if a hearing is needed,

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.

On Octobe r 13, 2021, the parties filed a Joint Status Report, which stated, in

part, Ñthat a final hearing on compensability will not be necessary as the

Petitioners and Intervenor do not contest NICAÔs determination that this

claim does not qualify for NICA benefi ts.Ò

On October 14, 2021, NICA filed its Motion for Partial Summary Final

Order (Motion). Given the stated position of all parties in the Joint Status

Report, the undersigned treats the Motion as unopposed.

F INDINGS OF F ACT

1. Knox was born on January 8, 2020, at Orlando Health South Lake

Hospital, located in Lake County, Florida.

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

medical records for Knox. In a medical report dated August 23, 2021,

Dr. Willis summarized his finding s and opined, in pertinent part, as follows:

In summary, labor was induced for severe

hypertension at 37 weeks gestational age. A non -

reassuring FHR pattern developed at complete

cervical dilation. Cesarean delivery was difficult

due to the fetal head bein g impacted in the

maternal pelvis. The baby was depressed at birth

with a cord pH of only 6.83 and a base excess of -

18.7. Cooling protocol was initiated for suspected

hypoxic ischemic encephalopathy (HIE). Although

the baby did not have any seizure activi ty, MRI

was consistent with subtle HIE.

There was an apparent obstetrical event that

resulted in the loss of oxygen to the babyÔs brain

during labor, delivery and continuing into the

immediate post - delivery period. The oxygen

deprivation resulted in at le ast some degree of

brain injury, as identified by MRI on DOL 6, which

suggested subtle HIE. I am not able to comment

about the severity of the brain injury.

3. NICA retained Luis E. Bello - Espinosa, M.D. (Dr. Bello - Espinosa), a

medical expert specializing in pediatric neurology, to examine Knox and to

review his medical records. Dr. Bello - Espinosa examined Knox on

September 25, 2021. In a medical report dated September 25, 2021, Dr. Bello -

Espinosa summarized his examination of Knox and opined, in pertinent part,

as follows:

SUMMARY:

Knox is a 19 - month - old boy with a history of

moderate hypoxic - ischemic encephalopathy of birth.

He underwent therapeutic hypothermia for 72 -

hours. In the NICU, he did not have seizures,

apnea or irregular breathing. An MRI of brain

showed findings indicative [of] a subtle hypoxic -

ischemic injury.

On the evaluation today Knox[Ôs] neurological

examination and development are completely

normal. There was no evidence of any residual

abnormal cortical, extrapyramidal, cerebellar,

u pper or lower motor neuro signs.

Results as of question 1: Does the child suffer from

both a substantial mental impairment and a

substantial physical impairment?

Knox is found to have no substantial physical or

mental impairment at this time.

Results as of question 2: If so, are bot the mental

and physical impairments permanent?

There are no mental or physical impairments.

Results of question 3: Are such permanent and

substantial mental and physical impairments

consistent with an injury to the brain or spinal cord

acquired due to oxygen deprivation or mechanical

injury occurring during labor, delivery or the

immediate post - delivery period?

There are no permanent substantial mental or

physical impairments.

4. A review of the file in this case reveals t hat there have been no expert

opinions filed that are contrary to Dr. Bello - EspinosaÔs opinion that Knox is

not permanently and substantially mentally and physically impaired, and

thus should not be considered for inclusion in the NICA Plan . Dr. Bello -

Espi nosaÔs opinion is credited.

5. Pursuant to the Joint Status Report, Petitioners do not oppose the

Motion.

C ONCLUSIONS OF L AW

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

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

7. The L egislature established the Plan Ñfor the purpose of providing

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

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

Fla. Stat.

8. The injured infant, her o r 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. NICA, which administers the Plan, has Ñ45 days

fr om 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.

9. If NIC A determines that the injury alleged in a claim 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 to

whom the claim has been assigned. § 766.30 5(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 assigned administrative law judge in accordance

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

and 766.31, Fla. Stat.

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

make the following determination based upon the available evidence:

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

neurological injury. If the claimant ha s

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 mental ly 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,

deli very, 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 perio d in a hospital.

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

law judge concludes that the Ñinfant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

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

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

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 pe riod in a hospital, which

renders the infant permanently and substantially

mentally and physically impaired.

12. To be compensable under the Plan, there must have been an

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

labo r, delivery, or resuscitation in the immediate post - delivery period

resulting in a permanent and substantial mental impairment and a

permanent and substantial physical impairment, inasmuch as both are

required to establish compensability. Fla. Birth - Relate d Neurological Injury

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

13. The evidence, which Petitioners have not refuted or attempted to

refute, established that Knox did not suffer a birth - related neurological

injury. Therefore, Kno x 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 Tania M. Russo and China Bailey, individually and

as parents and next friends of Knox Russo, is dismissed with prejudice.

D ONE A ND O RDERED this 2 1s t 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 2 1s t 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 1

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

Tallahas see, Florida 32399 - 3275 (Certified No. 7021 1970 0000 4860 9011 )

(Certified No. 7021 1970 0000 4860 9059 )

T homas 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. 7021 1970 0000 4860 9028 )

(Certified No. 7021 1970 0000 4860 9042 )

Kenney Shipley, Executive Direc tor Allison C. McMillen, Esquire

Florida Birth - Related Neurological Bounds Law Group

Injury Compensation Association 1751 North Park Avenue

Post Office Box 14567 Winter Park, Florida 3 2751

Tallahassee, Florida 32317 (Certified No. 7021 1970 0000 4860 8915 )

(Certified No. 7021 1970 0000 4860 9035 )

Tamara Richards, M.D.

Bradley P. Blystone, Esquire 1900 Don Wickham Drive

Marshall, Dennehey, Warner, Clermont, Florida 34711

Coleman and Goggin (Certified No. 7021 1970 0000 4860 8908 )

Suite 550

315 East Robinson Street

Orlando, Florida 32801

(Certified No. 7021 1970 0000 4860 8922 )

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law judge sh all 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

administrative 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 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).