21-002517N Lyndsey N. Hand, Individually , And Davin W. Hand, Individually, And On Behalf Of Evangeline Joelle Hand, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 27, 2022.

Summary: NICA's Unopposed Motion for Summary Final Order is granted where the infant did not suffer a birth-related neurological injury.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L YNDSEY N. H AND , I NDIVIDUALLY , A ND

D AVIN W. H AND , I NDIVIDUALLY , A ND O N

B EHALF OF E VANGELINE J OELLE H AND , A

M INOR ,

Petitioners ,

vs. Case No. 21 - 2517N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIA TION ,

Respondent,

and

C RESTVIEW H OSPITAL C ORPORATION ,

LLC, D / B / A N ORTH O KALOOSA M EDICAL

C ENTER ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came on for consideration upon the Unopposed Motion for

Summary Final Order (Motion) filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on January 20, 2022.

S TATEMENT OF T HE C ASE

On August 16, 2021 , Peti tioner s , Lyndsey N. Hand and Davin W. Hand,

on behalf of and as parents and natural guardians of Evangeline Joelle Hand

(Evangeline) , 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 Jane t Hanby , M.D., as the physician who provided

obstetric services at the birth of Evangeline on August 18, 2016 , at Crestview

Hospital Corporation, d/b/a North Okaloosa Medical Center (North Okaloosa

Medical Center) , located in Okaloosa County , Florida.

DOAH served Dr. Hanby, North Okaloosa Medical Center, and NICA with

a copy of the Petition on August 20, 2021 . On September 7, 2021, the

undersigned entered an Order Granting Petition for Leave to Intervene,

allowing North Okaloosa Medical Center to intervene in this matter.

On October 15, 2021, NICA filed a Response to Petition for B enefits,

which stated its determination that the instant claim is not compensable as

the injury does not meet the definition of a Ñbirth - related neurological injuryÒ

as defined in section 766.302(2), Florida Statutes (2019). On November 22,

2021 , the parti es filed an Updated Status Report, which stated that the

parties did not contest the compensability determination that NICA reached

in its Response to Petition for Benefits.

On January 20, 2022, NICA filed its Motion. The Motion reflects that

Petitioners and Intervenor do not oppose the Motion or the relief it requests.

F INDINGS OF F ACT

1 . Evangeline was born on August 18, 2016 , at North Okaloosa Medical

Center , located in Okaloosa County , Florida.

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

medical records for Evangeline . In a medical report dated August 30, 2021,

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

In summary, pregnancy was complicated by

premature and prolonged rupture of the membra ne.

There was no apparent fetal distress in labor.

Delivery was by spontaneous vaginal birth. The

baby was vigorous at birth and did not require

resuscitation. Apgar scores were 8/9. The baby was

stable and remained in the room with the mother

after delive ry until hypoglycemia was noted about

2 hours after birth.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical trauma to

the babyÔs brain or spinal cord during labor,

delivery or resuscitation in the immediate post -

delive ry period.

3. NICA retained Michael Duchowny , M.D. (Dr . Duchowny) , a medical

expert specializing in pediatric neurology, to examine Evangeline and to

review her medical records. Dr. Duchowny examined Evangeline on

October 6, 2021. In a medical report date d October 11, 2021, Dr. Duchowny

summarized his examination of Evangeline and opined , in pertinent part , as

follows:

In summary, EvangelineÔs examination reveals

evidence of spastic diparetic cerebral palsy that is

affecting strength and gait. In all likel ihood, lower

limb spastic weakness is responsible for her fatigue

and muscle spasm. In contrast, EvangelineÔs

cognitive abilities are functioning at age level

across all domains.

Review of the medical records reveals that

Evangeline was born at North Okal oosa Medical

Center at 34.6 weeks gestation after a pregnancy

complicated by oligohydramnios. Maternal

membranes ruptured at home 41 hours prior to

delivery, and her mother evidenced a fever to 100.7

degrees and leukocytosis. The electronic fetal heart

rat e was documented to be 180.

Evangeline weighed 3125 grams at birth (6 pounds

14 ounces) and had Apgar scores of 8 and 9 at one

and five minutes. Low blood sugars were treated

with D10W. Placental pathology revealed acute

subchorionitis with extension intr o chorionic villi,

acute vasculitis and funisitis of the umbilical cord,

and acute chorioamnionitis of fetal membranes.

Following hospital discharge, Evangeline was

admitted to Sacred Heart Med Cntr [sic] with

pneumonia and rule out sepsis; She received 3 days

of antibiotics and was again discharged.

While EvangelineÔs diagnosis of cerebral palsy is

confirmed on todayÔs evaluation, the evaluation

does not provide evidence of a substantial mental

impairment. I am therefore not recommending

consideration for inclusion in the NICA program.

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

opinions filed that are contrary to the opinion of Dr. W illis that Evangeline

did not suffer an injury that meets the definition of a birth - related

neurological injury under section 766.302(2). Dr . WillisÔs opinion is credited.

There are no expert opinions filed that are contrary to Dr. DuchownyÔs

opinion that Evangeline should not be considered for inclusion in the NICA

program. Dr. DuchownyÔs o pini on is credited.

C ONCLUSIONS OF L AW

5. DOAH has jurisdiction over the parties to and the subjec t matter of

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

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

compensation, irrespective o f fault, for birth - related neurological injury

claims Ò relating to births occurrin g on or after January 1, 1989. § 766.303(1),

Fla. Stat.

7. 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. NICA, which administers the Plan, has Ñ 45 days

from the date of service of a complete claim . . . in which to file a response to

the petiti on 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.

8. If NICA determines that the injury alleged in a claim is a compensable

birth - related neurologica l 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 assig ned. § 766.305(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.

9. In discharging this responsibility, the administrative law judg e must

make the following determination based upon the available evidence:

(a) Whether the injury claimed is a birt h - related

neurological injury. If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sus tained 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).

(b) Whether obstetrical services were delivered by a

participating physician in the course of labor,

delivery, 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 period in a hospital.

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

law judge concludes that the Ñ infant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth. Ò § 766.31(1), Fla. Stat.

10. Section 766.302(2) defines t he term Ñ birth - related neurological injury Ò

a s follows:

Ñ Birth - related neurological injury Ò 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 physi cally impaired.

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

obstetrical event which resulted in loss of oxygen to the babyÔs brain or a

spinal cord injury during labor, delivery, or resuscitation in the immediate

post - delivery period re sulting in a permanent and substantial mental

impairment and a permanent and substantial physical impairment,

inasmuch as both are required to establish compensability. Fla. Birth - Related

Neurological Injury Comp. AssÔn v. Div. of Admin. Hearings , 686 So. 2d 1349

(Fla. 1997).

1 2 . The evidence, which the parties do not refute, established that

Evangeline did not suffer a birth - related neurological injury under the

definition of section 766.302(2). Therefore, Evangeline 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 Lyndsey N. Hand and Davin W. Hand, on behalf of

and as parents and natural guardians of Evangeline Joelle Hand, a minor , is

dismissed wit h prejudice.

D ONE A ND O RDERED this 2 7 th day of January , 2022 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th 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 9707)

(Certified No. 7021 1970 0000 4860 9691)

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. 7021 1970 0000 4860 9721 )

(Certified No. 7021 1970 0000 4860 9714)

David A. Paul, Esquire

Brian Mur ry, Esquire Paul | Knopf | Bigger

Paul | Knopf | Bigger Suite 200

Suite 200 840 South Denning Drive

840 South Denning Drive Winter Park, Florida 32789

Winter Park, Florida 32789 (Certified No. 7021 1970 0000 4860 9745)

(Certified No. 7021 1970 0000 4860 9738)

Robin Treto, Esquire

Paul | Knopf | Bigger

Suite 200

840 South Denning Drive

Winter Park, Florida 32789

(Certified No. 7021 1970 0000 4860 9769)

Kenney Shipley, Executive Director Brooke M. Gaffney, Esquire

Florida Birth - Related Neurological Smith, Stout, Bigman & Brock, P.A.

Injury Compensation Association Suite 900

Post Offi ce Box 14567 444 Seabreeze Boulevard

Tallahassee, Florida 32317 Daytona Beach, Florida 32118

(Certified No. 7021 1970 0000 4860 9752) (Certified No. 7021 1970 0000 4860 9783)

David P. Ferrainolo, Esquire Janet Handby, M.D.

Ferrainolo Law Group, PA Suite 470

Suite 320 550 West Redstone Avenue

4950 West Kennedy Boulevard Crestview, Florida 32536

Tampa, Florida 33609 (Certified No. 7021 1970 0000 4860 9790)

(Certified No. 7021 1970 0000 4860 9776)

Kathe Alexander, Claims Manager

Florida Birth - Related Neurological

Injury Compensation Association

2252 Killearn Center Boulevard

Tallahassee, Florida 323 09

(Certified No. 7021 1970 0000 4860 9806)

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), Florid a 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 o f 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).