21-002807N Robert Masson And Alyssa Boich, O/B/O Darlene Masson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Set for Hearing by Zoom Conference.

Summary: Summary final order granted to Respondent finding claim compensable; however, barred by statute of limitations. Jurisdiction reserved to address whether notice requirements satisfied.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R OBERT M ASSON A ND A LYSSA B OICH , O / B / O

D ARLENE M ASSON , A M INOR ,

Petitioners,

Case No. 21 - 2807N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

P ASCO - P INELLAS H ILLSB OROUGH

C OMMUNITY H EALTH S YSTEM , I NC , D / B / A

A DVENTHEALTH W ESLEY C HAPEL , F LORIDA

M EDICAL C LINIC , LLC ; M ICHAEL G.

J ACKSON , M.D. ; A ND S ANTO J. P ANIELLO ,

M.D.,

Intervenors .

/

S UMMARY F INAL O RDE R ON C OMPENSABILITY

This matter came before the undersigned on RespondentÔs Motion for

Partial Summary Final Order (Motion), filed January 10, 2022.

S TATEMENT OF T HE C ASE

On August 31, 2021, Petitioners filed a ÑPetitio n, Under Protest, for

Benefits Pursuant to Florida Statutes Section 766.301 et seq.Ò (Petition) at

the Division of Administrative Hearings (DOAH). The Petition named

Michael Gerard Jackson, M.D., as the physician who provided obstetric

services at the birt h of Darlene Masson (Darlene) on July 30, 2015, at

Adventhealth Wesley Chapel (AdventHealth), in Wesley Chapel , Florida.

The Petition alleges, inter alia, that Petitioner, Alysa Boich, was not

provided with proper notice as required by section 766.316, Flo rida Statues.

DOAH served Respondent with a copy of the Petition on or before September

19, 2021. On September 16, 2021, DOAH mailed a copy of the Amended

Petition by certified mail to Dr. Jackson and AdventHealth.

On October 1, 2021, AdventHealth filed its Petition for Leave to

Intervene, and an order granting intervention was issued the same day. Also ,

on October 1, 2021, Florida Medical Clinic, LLC ; Michael G. Jackson, M.D. ;

and Santo J. Paniello, M.D.Ôs Motion to Intervene was filed. Said motion was

u ltimately granted on January 13, 2022.

On January 3, 2022, Respondent filed a Notice of Compensability and

Request f or Evidentiary Hearing on Compensability. Pursuant to this filing,

Respondent suggested that the subject claim is compensable; however,

pu rsuant to section 766.313, Respondent contends the claim is time - barred as

it was not filed within five years of DarleneÔs birth. Accordingly, Respondent

requested a bifurcated hearing , wherein compensability would be first

addressed.

By O rder dated Janu ary 3, 2022, the parties were ordered to confer and

advise the undersigned in writing no later than January 17, 2022, as to the

need for a hearing. RespondentÔs Motion was filed on January 10, 2022, and

requests a summary final order determining that Darle ne did suffer a birth -

related neurological injury, as defined in section 766.302(2) but concluding,

as a matter of law, that the claim is not compensable as it is time - barred.

On January 18, 2022, a telephonic status conference was conducted with

counsel for all parties in attendance. During the telephonic conference,

counsel for Petitioners and Intervenors represented that there was no

opposition to RespondentÔs Motion and that there was no objection to the

undersigned ruling on RespondentÔs Motion. The parties further represented

that disputed issues of material fact remain concerning whether the notice

requirements of section 766.316 were satisfied. Accordingly, jurisdiction is

reserved to address the notice issue.

F INDINGS OF F ACT

1. Darlene was born a live infant on July 30, 2015, at AdventHealth,

located in Wesley Chapel, Florida.

2. AdventHealth is a Ñhospital,Ò as defined by section 766.302(6).

3. At the time of birth, Darlene weighed at least 2 , 500 grams.

4. Obstetrical services were delivered by Drs. Jackson and Paniello in the

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

delivery period in a hospital.

5. At the time of DarleneÔs birth, Drs. Jackson and Paniello were

Ñparticipating physician[s],Ò as defined in s ection 766.302(7).

6. Donald Willis, M.D., an obstetrician specializing in maternal - fetal

medicine, was retained by Respondent to review the medical records for

Darlene and her mother, Alyssa Boich. In his affidavit , dated December 30,

2021, Dr. Willis op ines , to a reasonable degree of medical probability, in

pertinent part, as follows:

5. In summary, labor was complicated by a non -

reassuring FHR pattern during the last 30 minutes

and thick meconium at birth. The newborn was

significantly depressed with Apgar scores of

0/1/3/3/5. Initial intubation failed due [sic] thick

meconium. Resuscitation included respiratory

support, chest compressions, epinephrine and

intravenous fluid boluses. Despite a reasonable

cord blood gas pH of 7.24, the baby became severe ly

acidotic with an arterial blood gas (ABG) at 40

minutes with a pH of only 6.86 with a base excess

of - 20. The newborn hospital course was

complicated by multisystem organ failures,

including respiratory depression, seizures, renal

failure, coagulopathy, poor perfusion and elevated

lactic acid and liver function studies. EEG was

consistent with hypoxic ischemic encephalopathy

(HIE) which was confirmed by MRI on DOL 7. The

baby was subsequently diagnosed with intractable

epilepsy, microcephaly and global d evelopment

delay.

* * *

6. It is my opinion that there was an apparent

obstetrical event that resulted in loss of oxygen

during labor and delivery which worsened in the

immediate post - delivery period. The oxygen

deprivation resulted in brain injury.

7 . Respondent further retained Luis E. Bello - Espinosa, M.D., a pediatric

neurologist. Dr. Bello - Espinosa was retained to review the available medical

records and conduct an examination of Darlene to determine whether she

suffers from an injury , which render ed her permanently and substantially

mentally and physically impaired; and whether such injury is consistent with

an injury caused by oxygen deprivation or mechanical injury occurring during

the course of labor, delivery, or the immediate post - delivery per iod in the

hospital.

8 . Dr. Bello - Espinosa conducted the examination on December 18, 2021.

I n his affidavit dated J anuary 4, 2022, he opines , to a reasonable degree of

medical probability , that Darlene has mental and physical impairments that

are permanen t and substantial and that said impairments occurred during

labor and delivery. His affidavit further affirms the opinions set forth in his

report authored on December 18, 2021, which are set forth, in pertinent part,

as follows:

SUMMARY:

Darlene is a 6 - year 4 - month girl with a history of

severe hypoxic - ischemic encephalopathy of birth,

presenting with initial very low Apgars, severe

acidosis, with supportive evidence on EEG of

extreme suppression of the brain activity and MRI

changes of restricted diffu sion in multiple areas of

the brain, all indicative of an acute severe bilateral

diffuse ischemic event occurring at birth.

On the examination today [sic] is evident that

Darlene has severe neurological sequela. At 6 - years

of age, Darlene has profound in tellectual disability,

is non - verbal, has severe ataxic cerebral palsy, in

addition to severe multiple modalities treatment

resistant epilepsy. She is at high risk of SUDEP

(Sudden unexpected death in epilepsy).

Results of question 1: Does the child suff er from

both a substantial mental impairment and a

substantial physical impairment?

Darlene is found to have substantial physical and

mental impairment at this time.

Results of question 2: If so, are both the mental and

physical impairments permanent?

The mental and physical impairments are

permanent.

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 oc curring during labor, delivery or the

immediate post - delivery period?

In reviewing all the available documents, the

evolution of her symptoms, the acute prolonged

severe suppression of the cerebral activity of the

EEG and brain MRI changes indicative of severe

HIE, it is evident that Darlene had an acute

hypoxic event perinatally. The injury is felt to be

acquired due to oxygen deprivation of the brain.

The injuries are felt to be birth - related.

Results as of question 4: Did the permanent and

substantia l mental and physical impairments

themselves occur during labor, delivery or the

immediate post - delivery period (which period

continues until the baby is medically stable)?

The permanent substantial mental and physical

impairments occurred during labor an d delivery.

9 . The undisputed opinions of Dr s . Willis and Bello - Espinosa are credited.

Based on their opinions, the undersigned finds that Darlene sustained an

injury to the brain caused by oxygen deprivation occurring in the course of

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

hospital, which rendered Darlene permanently and substantially mentally

and physically impaired.

C ONCLUSIONS OF L AW

1 0 . DOAH has jurisdiction over the parties to and the subject matter of

these pro ceedings. §§ 766.301 - 766.316, Fla. Stat.

1 1 . The Florida Birth - Related Neurological Injury Compensation

Association Plan (Plan) was established by the Legislature Ñfor the purpose of

providing compensation, irrespective of fault, for birth - related neurolo gical

injury claimsÒ relating to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

1 2 . The injured infant, her or his personal representative, parents,

dependents, and next of kin may seek compensation under the Plan by

filing a cl aim 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 relevan t written information relating

to the issue of whether the injury is a birth - related neurological injury.Ò

§ 766.305(4), Fla. Stat.

1 3 . 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, as alleged in the Petition , the

dispute must be resolved by the assigned ALJ in accordance with the

provisions of

chapter 120, Florida Statutes. §§ 766.304, 766.309 , and 766.31, Fla. Stat.

1 4 . In discharging this responsibility, the ALJ is required to make the

following threshol d determinations based upon 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 spin al 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 i njury 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 te aching 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.

1 5 . The term Ñbirth - related neurological injuryÒ is defined in

secti on 766.302(2) 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 gr ams 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 physically i mpaired.

1 6 . The evidence establishes that the injury sustained by Darlene is a

birth - related neurological injury. Darlene was born a live infant weighing at

least 2,500 grams. The unrefuted evidence further establishes that there was

an injury to Darlen eÔs brain caused by oxygen deprivation occurring in the

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

period in a hospital. The undisputed evidence further establishes that said

injury has rendered her permanently and substanti ally mentally and

physically impaired.

1 7 . The undisputed evidence further establishes that obstetrical services

were delivered by participating physicians, Drs. Jackson and Paniello , in the

course of labor, delivery, or resuscitation in the immediate pos t - delivery

period in a hospital, AdventHealth.

1 8 . In addressing compensability, the ALJ must also consider whether the

claim for compensation is timely filed. Pursuant to section 766.313, Ñ[a]ny

claim for compensation under ss. 766.301 - 766.316 that is fil ed more than 5

years after the birth of an infant alleged to have a birth - related neurological

injury shall be barred.Ò Here, Darlene was born on July 30, 2015, and the

Petition was filed on August 31, 2021. Accordingly, because the Petition was

filed more than five years after DarleneÔs birth, Petitioners are barred from

pursuing a remedy under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law, it is O RDERED that :

1. RespondentÔs Motion is granted.

2. Jurisdiction is reserved to d etermine whether the notice requirements

of section 766.316 were satisfied.

D ONE A ND O RDERED this 28th day of January, 2022 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th 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 Hea lth 2727 Mahan Drive, Mail Stop 1

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

Tallahassee, Florida 32399 - 3275 (Certified No. 7021 2720 0000 3800 5032 )

(Certified No. 7021 2720 0000 3800 5018 )

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

Agency for Health Care Administration 2727 Mahan Drive, Mai l Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7021 2720 0000 3800 5049 )

(Certified No. 7021 2720 0000 3800 5025 )

Brooke India Charlan, Esquire Jack Tobias Cook, Esquire

Morgan & Morgan , P. A. Morgan & Morgan, P.A.

20 North Orange Avenue, Suite 1600 9th Floor

Orlando, Florida 32801 20 North Orange Avenue

(Certified No. 7021 2720 0000 3800 5056 ) Orlando, Florida 32801

(Certified No. 7021 2720 0000 3800 5087 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological David W. Black, Esquire

Injury Compensatio n Association Frank, Weinberg & Black, P.L.

Post Office Box 14567 7805 Southwest 6th Court

Tallahassee, Florida 32317 Plantation, Florida 33324

(Certified No. 7021 2720 0000 3800 5063 ) (Certified No. 7021 2720 0000 3800 5094 )

Travase Lloyd Erickson, Esquire Mark McLaughlin, Esquire

Saalfield Shad, PA Beytin, McLaughlin, McLaughlin,

Suite 400 O'Hara and Bolin, P.A.

245 Riverside Avenue Suite 2900

Jacksonville, Florida 32202 201 North Franklin Street

(Certified No. 7021 2720 0000 3800 5070 ) Tampa, Florida 336 02

(Certified No. 7021 2720 0000 3800 5100 )

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 appeal to

the District Court of Appeal pursuant to section 766.311(1), Florida Statutes.

Review proceedin gs 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 DC A 1992).