21-003483N Kimberly Parish, On Behalf Of And As Parent And Natural Guardian Of Sean Callahan, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 11, 2022.

Summary: Petitioner's child does not meet the weight threshold for eligibility under the NICA Plan. Petitioner's claim is dismissed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K IMBERLY P ARISH , O N B EHALF OF A ND A S

P ARENT A ND N ATURAL G UARDIAN OF S EAN

C ALLAHAN , A M INOR ,

Petitioner ,

vs. Case No. 21 - 3483N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

F INAL O RDER

On December 9, 2021, Respondent, Florida Birth - Related Neurological

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

Orde r (Motion), asserting that the claim filed by Petitioner, Kimberly Parish

on behalf of and as parent and natural guardian of Sean Callahan (Sean), is

n ot compensable. Petitioner did not file a response to the Motion, and the

time for doing so provided in F lorida Administrative Code Rule 28 - 106.204

has passed.

S TATEMENT O F T HE I SSUE

The issue to be determined is whether PetitionerÔs child, Sean, has

suffered a birth - related neurological injury as that term is defined in section

766.302(2), Florida Statutes (2017) .

P RELIMINARY S TATEMENT

On November 16, 2021, Petitioner filed a Petition for Benefits Pursuant to

Florida Statutes Section 766.301 et seq. (Petition), alleging that Sean

suffered a birth - related neurological injury. The Petition names Christopher

S undstrom, M.D., as the physician providing obstetric services and

Tallahassee Memorial Hospital as the hospital where Sean was born on

August 11, 2017. Dr. Sundstrom, Tallahassee Memorial Hospital, and NICA

were served with the Petition by certified mail o n November 17, 2021.

The Motion was filed December 9, 2021, along with a Motion for Entry of

a Protective Order Regarding Confidential Documents Related to PetitionerÔs

Medical Records. The Motion for Entry of a Protective Order is granted. The

Motion fo r Summary Final Order relies on the medical records provided with

the Petition pursuant to section 766.305.

F INDINGS O F F ACT

1. Sean was born at Tallahassee Memorial Hospital on August 11, 2017.

2. His birth weight was 1,735 grams.

3. There is no dispute regarding whether Dr. Sundstrom was a

participating provider at the time of SeanÔs birth.

C ONCLUSIONS O F L AW

4. The Division of Administrative Hearings ( DOAH ) has jurisdiction over

the parties and the subject matter of these proceedings pursuant to sectio ns

120.569, 120.57(1), and 766.304, Florida Statutes.

5. The Legislature established the Florida Birth - Related Neurological

Injury Compensation Plan Ñfor the purpose of providing compensation,

irrespective of fault, for birth - related neurological injury cl aimsÒ related to

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

6. An injured infant and certain other identified people, including the

infantÔs parents, may seek compensation under the Plan by filing a claim for

compensation with D OAH. §§ 766.302(3), 766.303(2), and 766.305(1), Fla.

Stat. Section 766.305(4) provides that NICA, which administers the Plan, has

45 days from the date that a complete claim is served to file a response to the

petition and to submit relevant written inform ation related to whether the

child has suffered a birth - related neurological injury.

7. If NICA determines that there is a birth - related neurological injury

that is compensable under the Plan, it may award compensation to the

claimant, provided that the aw ard is approved by the assigned

administrative law judge. § 766.305(7), Fla. Stat. If NICA disputes the claim,

as it does in this case, the dispute must be resolved by the administrative law

judge in accordance with chapter 120. §§ 766.304, 766.30, 766.31, Fla. Stat.

8. The initial inquiry is whether the infant has suffered a birth - related

neurological injury as that term is defined in section 766.302(2), which

provides:

(2) ÑBirth - related neurological injuryÒ means injury

to the brain or spinal cord of a l ive 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 i n 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 only and shall not include

disability or death caused by genetic or congenital

abnormality. (emphasis supplied).

9. If the administrative law judge determines that the infant meets the

statutory weight threshold and has sustained a brain or spinal order injury

caused by oxygen deprivation or mechanical injury, and finds that as a result

of the injury, the infant was rendered permanently and substantially

mentally and physically impaired, then section 766.309(1) provides a

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

10. The evi dence presented does not support such a finding in this case.

The only evidence presented indicates that at birth, Sean weighed

1,735 grams, which is below the threshold weight established in section

766.302(2). This issue is dispositive as to compensabili ty. Accordingly, Sean

did not suffer a birth - related neurological injury as that term is defined in

section 766.302(2) and is not eligible for benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law, the Petition for

Benef its Pursuant to Florida Statute Section 766.301 et seq. is dismissed

with prejudice.

D ONE A ND O RDERED this 11th day of January , 2022 , in Tallahassee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

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 11th 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

Depa rtment of Health 2727 Mahan Drive, Mail Stop 1

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

Tallahassee, Florida 32399 - 3275 (Certified No. 702119700000486 08748)

(Certified No. 70211790000048608670)

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. 7 0211970000048608731) (Certified No. 70211970000048608755)

Kenney Shipley, Executive Director Kimberly Parish

Florida Birth - Related Neurological 5463 Fletcher Oaks Drive

Injury Compensation Association Tallahassee, Florida 32317

Post Office Box 14567 (Certified No. 70211970000048608724)

Tallahassee, Florida 32317

(Certified No. 70211970000048608694) Christopher Sundstrom, M.D.

1401 Centerville R oad, # 202

Tallahassee Memorial Hospital Tallahassee, Florida 32308

Attention: R isk Management (Certified No. 70211970000048608700)

1300 Miccosukee Road

Tallahassee, Florida 32308

(Certified No. 70211970000048608687)

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 app eal 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 th e 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).