21-002669N Ashley Shahid And Justin Shahid, On Behalf Of And As Parents And Natural Guardians Of Malachi Shahid, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 21, 2021.

Summary: Summary Final Order entered finding claim not compensable as infant did not meet the minimum statutory weight.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A SHLEY S HAHID A ND J USTIN S HAHID , O N

B EHALF OF A ND A S P ARENTS A ND

N ATURAL G UARDIANS OF M ALACHI S HAHID ,

A M INOR , Case No. 21 - 2669N

Petitioners ,

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATIO N ,

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 October 4, 2021.

Petitioner did not file a response in opposition.

S TATEMENT OF T HE C ASE

On August 26, 2021, Petitioner s filed a Petition for Benefits Pursuant to

Florida Statute Section 7 6 6.301 et seq. (Petition) with the Division of

Administrat ive Hearings (DOAH), for a determination of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Mehmet R. Genc, M.D., Ph.D., and Sarah

Cappleman, M.D., as the physician s who provided obstetric ser vices for the

birth of Malachi Shahid (Malachi) at UF Health Shands at the University of

Florida (UF Shands) in Gainesville, Florida, on October 27, 2018.

On September 8, 2021, DOA H mailed a copy of the Petition to

Respondent, Dr. Genc , Dr. Cappleman , an d UF Shands via certified mail.

Respondent was served with the same on September 14, 2021.

On October 4, 2021, Respondent filed RespondentÔs Motion, requesting

that a summary final order be entered finding that the claim is not

compensable because Malach i did not meet the requisite minimum statutory

birth weight as required by section 766.302, Florida Statutes. Petitioner s did

not file a response to RespondentÔs Motion.

F INDINGS O F F ACT

1. Malachi was born on August 26, 2021, at UF Shands in Gainesville ,

Florida. He was a single gestation.

2. The unrefuted medical records provided by Petitioner s to Respondent,

pursuant to section 766.305(3), document that MalachiÔs birth weight was

1 , 500 grams.

C ONCLUSIONS O F L AW

3. DOAH has jurisdiction over the parti es to and the subject matter of

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

4. The Plan was established by the Legislature Ñfor the purpose of

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

injury claimsÒ related to bi rths occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

5. 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. 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 i ssue

of whether the injury is a birth - related neurological injury.Ò £ 766.305(4), Fla.

Stat.

6. Respondent has determined that Petitioner s do not have a claim that is

compensable under the Plan and has filed a Motion for Summary Final

Order, requesting th at an order be entered finding that the claim is not

compensable.

7. In ruling on RespondentÔs Motion, the administrative law judge (ALJ)

must make the following threshold determination based upon the available

evidence:

(a) Whether the injury claimed i s 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. 766.302 (2).

§ 766.309(1), Fla. Stat.

8. The term Ñbirth - related neurological injuryÒ is defined in

section 766.302(2) as follows:

ÑBirth - related neurological injuryÒ mea ns 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 occu rring 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.

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

injury, he or she is required to enter an order and immediately provide a copy

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

10 . The evidence, which is not refuted, establishe s that Malachi was a

single gestation and did not weigh at least 2,500 grams at birth. Thus,

Malachi did not sustain a birth - related neurological injury because he did not

meet the minimum statutory weight . Accordingly, Petitioners Ô claim for

benefits is not compensable under the Plan.

C ONCLUSION

Based on the Finding s of Fact and the Conclusions of Law, it is O RDERED

that the Petition is dismissed with prejudice.

D ONE A ND O RDERED this 2 1s t 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 2 1s t day of October, 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

Consumer Servic es Unit Agency f or 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 9011 )

(Certified No. 7021 1970 0000 4860 9059 )

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 (Cer tified No. )

(Cer tified No. 7021 1970 0000 4860 9042 ) (Certified No. 7021 1970 0000 4860 9028 )

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. 7021 1970 0000 4860 8960 ) Tallahassee, Florida 32317

(Certified No. 7021 1970 0000 4860 9035 )

Sarah Cappleman, M.D.

Suite 200 Mehme t R. Genc, M.D., PH.D.

235 East Princeton Street UF Health WomenÔs Center

Orlando, Florida 32804 4th Floor

(Certified No. 7021 1970 0000 4860 8953 ) 1549 Gale Lemerand Drive

Gainesville, Florida 32610 - 3008

University of Florida Shands Hospital (Certified No. 7021 1970 0000 4860 8939 )

Attention: Risk Management

1600 Southwest Archer Road

Gainesville, Florida 32608

(Certified No. 7021 1970 0000 4860 8946 )

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

Review of a final order of an administrative law judge s hall 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 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).