22-000302N Mindi Swartzel, On Behalf Of And As Parent And Natural Guardian Of Tilly-Marie Barber, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 25, 2022.

Summary: NICA's 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

M INDI S WARTZEL , O N B EHALF OF A ND A S

P ARENT A ND N ATURAL G UARDIAN OF

T ILLY - M ARIE B ARBER , A M INOR ,

Petitioner ,

vs. Case No. 22 - 0302N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respond ent,

and

K RISTEN C OOK , C NM , A ND F LORIDA

P HYSICIAN P ROTECTIVE P ARTNERSHIP ,

L LC ,

Intervenors .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came on for consi deration upon the RespondentÔs Motion for

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

Neurological Injury Compensation Association (NICA), on July 28, 2022, and

the undersignedÔs Order to Show Cause, entered August 10, 2022.

S T ATEMENT OF T HE C ASE

On January 26, 2022 , Petitioner , Mindi Swartzel, on behalf of and as

parent and natural guardian of Tilly - Marie Barber (Tilly - Marie) , 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 Kristen Cook as the nurse midwife who provided

obstetric servic es at the birth of Tilly - Marie, on April 25, 2021, at North

Florida Regional Medical Center, now known as HCA Florida North Florida

Hospital (NFRMC), located in Alachua County , Florida.

DOAH served Ms. Cook, NFRMC, and NICA with a copy of the Petition on

February 1, 2022 . On February 22, 2022, Ms. Cook and Florida Physician

Protective Partnership, LLC (Ms. CookÔs employer), filed a Petition for Leave

to Intervene. On March 2, 2022, the undersigned entered an Order Granting

Motion to Intervene.

On March 7 , 2022, NICA filed a Response to Petition for Benefits, 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 S tatutes. On March 25, 2022 , the

parties filed a Joint Response to Order, which stated that Petitioner

request ed a hearing in this matter, but that NICA and Intervenors did not

believe a hearing was necessary. On April 5, 2022, the undersigned entered a

Not ice of Hearing, which set this matter for final hearing on September 15,

2022.

On July 28, 2022, NICA filed its Motion. After Petitioner failed to timely

respond to the Motion, the undersigned entered an Order to Show Cause,

that ordered Petitioner, on or before August 23, 2022, to show cause, in

writing, why the Motion should not be granted and a summary final order be

entered finding that PetitionerÔs claim is not compensable. Petitioner failed to

respond to either the Motion or the Order to Show Cause.

F INDINGS OF F ACT

1 . Tilly - Marie was born on April 25, 2021, at NFRMC , located in

Alachua County , Florida.

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

medical records for Tilly - Marie . In a medical report dated March 7, 2022 ,

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

In summary, labor was induced at 37 weeks for

well controlled Gestational Diabetes and mild

preeclampsia. Delivery was by spontaneous vaginal

birth. The baby was not depressed with Apgar

scores of 8/9. NICU care was never required. The

newborn hospital course was uncomplicated with

discharge home at 44 hours after birth.

The child was subsequently diagnosed with

abnormal muscle tone and developmental delay of

unknown etiology. MRI was negative for hypoxic

ischemic brain injury and genetic studies, including

microarray were normal.

There was no obstetrical event that resulted in the

loss of oxygen or mechanical trauma to the babyÔs

brain or spinal cord during labor, delivery or the

immediate post delivery period.

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

expert specializing in pediatric neurology, to examine Tilly - Marie and to

review her medical records. Dr. Espinosa examined Tilly - Marie on

February 12, 2022. In a medical report dated February 12, 2022, Dr.

Espinosa summarized his examination of Tilly - Marie and opined , in

pertinent part , as follows:

Tilly is a nine - month - old girl with a history of

developmental delay and failure to thrive of

undeterm ined etiology. The review of her records

demonstrated no findings to indicate the presence

of perinatal distress nor evidence of any birth -

related hypoxic - ischemic injury.

On her examination today, Tilly has discrete

dysmorphic features, axial and distal hypotonia

with preservation of normal reflexes. Tilly did not

display any evidence of extrapyramidal signs,

neither abnormal upper or lower motor neuron

signs as can be seen after a brain or spinal cord

injury due to birth - related insults. TillyÔs clinical

presentation of hypotonia with preservation of

reflexes, developmental delays, and failure to

thrive suggest a probable potential metabolic -

genetic process that could be very challenging and

difficult to diagnose in many instances. Further

testing should be considered.

Results as of question 1: Does the child suffer from

both a substantial mental impairment and a

substantial physical impairment?

Tilly È does not have evidence of substantial

physical and mental impairments related to her

birth.

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

and physical impairments permanent?

Tilly does not have evidence of permanent mental

and physical impairments related to her birth.

Results of question 3. Are such permanent and

substantial mental and physica l 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?

In reviewing the available documents and the

evolution of her symptoms, there is no evidence

indicating that Tilly had an acute hypoxic event

perinatally. There is no birth - related injury due to

oxygen deprivation of the brain.

Results as of question 4: Did the permanent and

substantial mental and physical impa irments

themselves occur during labor, delivery, or the

immediate post - delivery period (which period

continues until the baby is medically stable)?

TillyÔs developmental delays and failure to thrive

are not related to any events that may have

occurred dur ing labor, delivery, or the immediate

post - delivery period.

Considering the clinical presentation, I feel that

there is not enough evidence to recommend Tilly be

included in the NICA program.

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

opinions filed that are contrary to the opinion s of Dr. Willis and Dr. Espinosa

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

related neurological injury under section 766.302(2). Dr . WillisÔs and

Dr. Espinosa Ôs opinions are 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, irr espective of 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 co mpensation 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 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.

8. If NICA 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 assig ned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claim, as it has in t he 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 administrati ve law judge 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 inf ant 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. 766.303(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 administrative

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 bi rth - 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

mentall y and physically 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 spinal

cord injury during labor, 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 - Related Neurological Inj .

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

12. The evidence, which is unrefuted, established that Tilly - Marie did not

suffer a birth - related neurological injury under the definition of section

766.302(2). Therefore , Tilly - Marie is not eligible for benefits under the Pla n.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law, it is

O RDERED that:

The Petition filed by Mindi Swartzel, on behalf of and as parent and

natural guardian of Tilly - Marie Barber, a minor , is dismissed with prejudice.

The final hearing i n this matter, scheduled for September 15, 2022, is hereby

cancelled.

D ONE A ND O RDERED this 25th day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

Administrative Law Judge

1230 Apalach ee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of August , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

( Addre ss of Record) (eServed)

(Certified No. 7021 1970 0000 4860 6652) (Certified No. 7021 1970 0000 4860 6690)

Kim Kellum, Esquire Thomas M. Hoeler, Esquire

(eServed) (eServed)

(Certified No. 7021 1970 0000 4860 6669) (Certif ied No. 7021 1970 0000 4860 6706)

Kathe Alexander, Claims Manager Mindi Swartzel

(eServed) (Address of Record)

(Certified No. 7021 1970 0000 4860 6676) (Certified No. 7021 1970 0000 4860 6713)

North Florida Regional Medical Center M. Mark Bajalia, Esquire

(Addre ss of Record) (eServed)

(Certified No. 7021 1970 0000 4860 6683) (Certified No. 7021 1970 0000 4860 6720)

Andrew S. Bolin, Esquire

(eServed)

(Certified No. 7021 1970 0000 4860 6737)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of a n administrative law judge shall 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 origin al n otice of

a dministrative 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 Distric t 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).