22-000303N Brittney N. Cobb, On Behalf Of And As Parent And Natural Guardian Of Zoey N. Cobb, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, September 12, 2022.

Summary: Petitioner did not demonstrate that her child suffered a birth-related neurological injury as defined by section 766.302(2), Florida Statutes.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B RITTNEY N. C OBB , O N B EHALF OF A ND A S

P ARENT A ND N ATURAL G UARDIAN OF

Z OEY N. C OBB , A M INOR ,

Petitioner ,

vs. Case No. 22 - 0303N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

F INAL O RDER

On June 28, 2022, Administrative Law Judge Lisa Shearer Nelson of the

Florida Division of Administrative Hearings (DOAH) conducted a hearing

purs uant to section 120.57(1), Florida Statutes, by means of the Zoom

platform.

A PPEARANCES

For Petitioner: Brittney N. Cobb, pro se

( Address of record )

For Respondent: Tana D. Storey , Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street , Suit e 202

Tallahassee, Florida 32301

S TATEMENT O F T HE I SSUE

The issue for resolution is whether PetitionerÔs infant daughter , Zoey N.

Cobb (Zoey), suffered a birth - related injury as that term is defined in section

766.302(2), Florida Statutes .

P RELI MINARY S TATEMENT

On January 28, 2022, Petitioner, Brittney N. Cobb (Ms. Cobb or

Petitioner) , as parent and natural guardian for her daughter, Zoey, filed a

Petition for Benefits Pursuant to Florida Statute Section 766.301, et seq . (the

Petition), alleging that Zoey suffered a birth - related neurological injury. The

Petition identified Dr. Jeffrey Schulman , M.D., as the physician providing

obstetrical services and North Florida Regional Medical Center (NFRMC) as

the hospital where Zoey was born. On February 1 , 2022, the Petition was

served by certified mail on Respondent, the Florida Birth - Related

Neurological Injury Compensation Association (NICA), Dr. Schulman, and

NFRMC .

On March 18, 2022, NICA filed a Response to Petition for Benefits,

asserting that the claim was not compensable. The parties were directed to

file a response indicating whether a hearing was necessary to determine

compensability, and if so, to provide mutually agreeable dates for

commencing a hearing. After response from the parties, the he aring was

noticed for June 28, 2022, and took place as scheduled.

The parties filed a Joint Prehearing Stipulation on June 2 0 , 2022, which

include d some facts for which evidence at hearing would not be required.

Those facts have been included in the Findi ngs of Facts below. At hearing,

Joint Exh ibit 1, consisting of voluminous medical records, was admitted into

evidence. Petitioner testified on her own behalf but presented no additional

exhibits. NICA presented no witnesse s but NICA Exhibits 1 through 4 (w hich

included reports from Dr. Donald Willis and Dr. Michael Duchowny, as well

as Dr. DuchownyÔs deposition and curriculum vitae) were admitted into

evidence. At the conclusion of the hearing, both parties requested 30 days to

submit proposed final orders. The partiesÔ request was granted, and they

were advised that, notwithstanding their waiver of the time - frames in

Florida Administrative Code Rule 28 - 206.215, the Final Order would be

issued no later than 30 days from submission of their proposed final ord ers.

The Transcript of the hearing was filed July 28, 2022. On August 1, 2022,

a Scheduling Order was issued, directing that proposed final orders be filed

no later than August 29, 2022, and that the Final Order would be issued no

later than September 28, 2022. NICA filed a Proposed Final Order on

August 29, 2022. Petitioner did not file a proposed final order.

All references to Florida Statutes are to the 2020 codification, except

where specifically indicated otherwise. All emphasis is in the original.

F INDINGS O F F ACT

1. Brittney N. Cobb is ZoeyÔs parent and natural guardian.

2. Zoey was born a live infant on October 9, 2020, at NFRMC , a licensed

hospital in Gainesville, Florida. Dr. Jeffrey Schulman, M.D. , a participating

physician in the NICA Plan, pr ovided obstetrical services.

3. Zoey was a single gestation and weighed 4,075 grams. She was

approximately four weeks early, due in part to her motherÔs gestational

diabetes.

4. Zoey experienced a difficult birth. During the birthing process, she

suffered shoulder dystocia, and her clavicle was fractured. More importantly,

t here was an obstetrical even t that resulted in the loss of oxygen to ZoeyÔs

brain during the delivery , which continued into the immediate post - delivery

period.

5. Zoey was transferred f rom NFRMC to Shands Hospital at the

University of Florida (Shands) , where she stayed in the Neonatal Intensive

Care Unit ( NICU ) until her discharge on December 3, 2020.

6. ZoeyÔs initial weeks of life were bleak. She was on a ventilator her first

11 days , and had multiple life - threatening issues that complic ated her care.

A progress note by Dr. Roberto Borgia on October 11, 2020, Zoey Ô s Day 3,

reflects the scope of possibilities her parents were facing:

Baby is critically ill and intubated. Due to EEG

find ing of burst suppression, minimal response to

exam and also evidence of multisystem organ

dysfunction, we discussed the suspected severe HIE

with the family today. È Mom was overwhelmed

with the above update and left the room to go see

the baby. We further discussed the plan for DW

Brain MRI tomorrow (~72 hours for best sensitivity

to assess for HIE) and if severe it may mean that

baby may possibly not be able to breathe on her

own, may have severe neurodevelopmental delay,

including CP, which may result in visual, hearing

loss and worse - case scenario, child being completely

bed bound. È Mom went to bedside and wanted to

hold baby and she was able to, without infant

deteriorating.

7. Despite this bleak beginning, Zoey began to improve and make

remarkable pr ogress. She was taken off the ventilator on October 20, 2020

(Day 11), with respiration then supported by use of a CPAP, then weaned

from the CPAP on October 22, 2020. On that day, progress notes indicate that

Zoey was Ñmuch more stable Ï remains admitted for continued respiratory

support, feeding tube dependence, and monitoring of a steadily worsening

direct hyperbilirubinemia.Ò

8. Zoey was discharged from Shands on December 3, 2020, with a feeding

tube because of her continued difficulties in getting suf ficient nutrition by

mouth. Once home, her feeding difficulties improved and when she was

approximately three months old, the feeding tube was removed.

9. Petitioner filed the Petition on ZoeyÔs behalf when she was

approximately 15 months old.

10. The Flo rida Birth - Related Neurological Injury Compensation Plan

(Plan) is designed to provide coverage for care on a no - fault basis, for a

limited class of catastrophic injuries that result in unusually high costs for

care and rehabilitation. See § 766.301(2), Fl a . Stat.

11. Coverage under the Plan requires that the infant suffer permanent

and substantial mental and physical impairments as a result of an injury to

the brain or spinal cord occurring during the course of labor, delivery, or

resuscitation in the imme diate post - delivery period .

1 2 . The parties have stipulated that there was an obstetric event that

resulted in oxygen deprivation to ZoeyÔs brain during delivery. ZoeyÔs records

were reviewed by Dr. Donald C. Willis, an expert in maternal - fetal medicine.

D r. Willis summarized his opinion in his report to NICA dated February 22,

2022, stating in part:

In summary, delivery at 36 weeks gestational age

was complicated by a prolonged second stage of

labor. Vacuum extraction was applied to assist

vaginal deliver y, which was further complicated by

a shoulder dystocia. Resuscitation required

intubation and chest compressions. Hemorrhagic

shock resulted from blood loss due to an expanding

subgaleal hemorrhage, most likely related to

vacuum extraction. The newborn co urse was

complicated by multisystem organ failures. EEG

was consistent with diffuse encephalopathy. Head

ultrasound on the day of birth suggested hypoxic

brain injury. MR I on DOL 3 was consistent with

hypoxic ischemic encephalopathy and con f irmed a

large s ubgaleal hematoma.

There was an obstetrical event that resulted in loss

of oxygen to the babyÔs brain during delivery and

continuing into the immediate post delivery period.

The oxygen deprivation resulted in brain injury. I

am not able to comment about t he severity of the

injury.

13. The issue that remains is whether that obstetric event resulted in

substantial and permanent mental and physical impairment.

1 4 . To that end, on March 16, 2022, Zoey was examined via Zoom by

Michael Duchowny, M.D., a board - c ertified pediatric neurologist.

At the time of the examination, Zoey was approximately 17 months old.

While the examination was conducted by Zoom as opposed to in person,

Dr. Duchowny spent approximately 75 minutes with Zoey and her mother.

1 5 . Dr. Duchow ny is a senior staff attending physician at Nicklaus

ChildrenÔs Hospital, Department of Neurology, with the comprehensive

epilepsy program, and is a clinical professor o f neurology for both University

of Miami Ôs and Florida International UniversityÔs medic al schools. He has

special qualifications in child neurology and clinical neuropsychology, and

routinely sees children suffering from neurological injuries. In addition to

examining Zoey, Dr. Duchowny reviewed her medical records.

16. Dr. DuchownyÔs report , which details his observations from his

examination of Zoey, includes the following information:

Zoey presents as a non - fluent toddler who makes a

variety of sounds but did not communicate verbally.

She was prone to crying especially when she was

not he ld. Zoey easily maintained a sitting position

and rose to standing without assistance. When not

crying, she was pleasant and socially engaged. Zoey

was attracted by a hand puppet and had an age -

appropriate level of attention for the animated

puppet fac e . Z oey evidenced curiosity regarding her

surroundings and had well - directed search

behaviors. Zoey was not irritable or oppositional.

She reliably demonstrated an age - appropriate

activity level and stream of attention.

* * *

Coordination and Gait: Zoey easi ly stood without

support and walked independently. Sitting and

standing balances were stable and she walked with

symmetric arm swing and age - appropriate

stability. Head control is well - developed. She did

not demonstrate abnormal stepping or placing

respons es. She used her hands cooperatively and

transferred between hands. Zo e y stacked a short

tower of Lego toys.

17. Dr. Duchowny reported that Zoey had an absence of expressive

language , and speech and oromotor apraxia, as well as delayed social

development and withdrawn behavior. However, he did not observe any

substantial motor impairment, and did not recommend inclusion in the

NICA program. In Dr. DuchownyÔs deposition, he confirmed the findings in

his report, stating that Zoey does not suffer from a subst antial motor deficit

and had developed age - appropriate motor function. While Dr. Duchowny

believed that Zoey has a developmental language disorder, he did not believe

that it is permanent, but rather, that she will improve over time. Given

these findings, he did not believe that Zoey met the requirements for

inclusion in the NICA program.

18. At hearing, Ms. Cobb testified about the familyÔs observations of

ZoeyÔs abilities and behaviors. She also testified that ZoeyÔs treating

neurologist, Suman Ghosh, M.D ., had advised her that ZoeyÔs injuries were a

result of the hypoxic ischemic encephalopathy (HIE), and expressed

confusion as a result of Dr. DuchownyÔs opinion that her lack of speech is a

developmental disorder.

19. Progress notes from ZoeyÔs 14 - month v isit with Dr. Ghosh on

December 13, 2021, were included in the record. In those notes, Dr. Ghosh

notes that Zoey was Ñsocial, interactive and mimics speech well,Ò with Ñgood

eye contact throughout and very playful.Ò He described her overall muscle

tone as normal, and her gait as normal. Her scores on the Bayley Scale of

Infant and Toddler Development indicates that her language scores were

very low, and Dr. Ghosh recommended a formal audiology examination and

speech therapy. Her motor and cognitive scores w ere listed as average.

20. Dr. GhoshÔs notes are consistent with Dr. DuchownyÔs assessment of

ZoeyÔs condition.

21. Dr. DuchownyÔs opinion is also consistent with the entirety of the

medical records, and is credited. Ms. CobbÔs testimony is also credible a nd

totally understandable, given what she and her family endured in dealing

with the difficulties of ZoeyÔs birth and her lengthy stay in the NICU. It is

consistent with the information provided to the family early in ZoeyÔs stay at

Shands. However, the in formation provided at that time appears to have

been provided to brace the family for the Ñworse - case scenario,Ò and is

described in those terms. Thankfully, Zoey has progressed in a manner that

many would consider miraculous, given the events surrounding her birth.

22. Although the evidence indicates that Zoey does continue to have some

challenges, her current condition does not rise to the level of permanent and

substantial impairments, either in terms of motor development or cognitive

development. Dr. Du chowny seemed certain that her language disorder will

improve, and she will not regress. Accordingly, there is not sufficient

evidence to demonstrate that Zoey suffered a birth - related neurological

injury required to be eligible for Plan benefits.

C ONCLUS IONS O F L AW

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

this proceeding pursuant to sections 120.57(1) and 766.304 .

24. The Legislature created the Plan to Ñprovide compensation, on a no -

fault basis, for a limited class of catas trophic injuries that result in unusually

high costs for custodial care and rehabilitationÒ caused by birth - related

neurological injuries. § 766.301(2), Fla. Stat.

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

infantÔs parents or guardians, 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. Section 766.305(4) provides that NICA, which

administers the Plan, has 45 days from the date that a complet e claim is

served to file a response to the petition and to submit relevant written

information related to whether the child has suffered a birth - related

neurological injury. In this case, NICA fulfilled that responsibility by its

response that Zoey did no t suffer a birth - related neurologi cal injury as that

term is defined in section 766.302(2).

26 . 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 tha t the award 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, and 766.31, Fla.

Stat.

27 . 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 spin al 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 in 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 d eath caused by genetic or congenital

abnormality.

28 . If the administrative law judge determines that the infant has

sustained a brain or spinal cord injury caused by oxygen deprivation or

mechanical injury, and finds that as a result of the injury, the i nfant 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.

29. Petitioner is the party seeking to demonstrate that the infant suffered

a birth - related neurological injury. Accordingly, she bears the burden of proof

by a preponderance of the evidence. § 120.57(1)(j), Fla. Stat.; Fla. DepÔt of

Transp. v. J.W.C. Co., 396 So. 2d 778 (Fla. 1 st DCA 1981).

30. The Supreme Court of Florida has stated, Ñ A Ó preponderance Ô of

the evidence is defined as Ó the greater weight of the evidence, Ô Black's Law

Dictionary 1201 (7th ed.1999), or evidence that Ó more likely than not Ô tends

to prove a certain proposition. Ò Gross v. Lyons , 763 So. 2d 276, 280 (Fla. 2000)

(citing American Tobacco Co. v. State, 697 So. 2d 1249, 1254 (Fla. 4th DCA

1997) .

31. In this case, Petitioner has not demonstrated that Zoey suffered a

birth - related neurological injury as that term is defined in section 766.302(2 ).

There is no dispute that she suffered an injury at birth, and the trauma

experienced by her parents during her first weeks is unimaginable. However,

the evidence shows that the injury she suffered did not result in substantial

and permanent mental and p hysical impairments that would qualify her for

inclusion in the Plan.

C ONCLUSION

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

dismissed with prejudice.

D ONE A ND O RDERED this 12th day of September , 2022 , in Tallahassee,

Leon Coun ty, 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 12th day of September , 2022 .

C OP IES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

( Address of Record ) (eServed)

(Certified No. 70211970000048606744) (Certified No. 70211970000048606751)

Kim Kellum, Esquire Thomas M. Hoeler , Esquire

(eServed) (eServed)

(Certified No. 70211970000048606768) (Certified No. 70211970000048606775)

Kathe Alexander Brittney N. Cobb

(eServed) (eServed)

(Certified No. 7021197000004860678 2) (Certified No. 70211970000048606799)

Tana D . Storey Jeffrey Schulman, M.D.

(eServed) (Address of Record)

(Certified No. 70211970000048606805) (Certified No. 70211970000048606812)

North Florida Regional Medical Center

(Address of Record)

(Certified No. 70211970000048606829)

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

Review of a fi nal 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 proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by fil ing 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

appro priate 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).