22-000430N Asiye Basakli O/B/O Giovanni Faulkner, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, August 15, 2022.

Summary: NICA's unopposed motion for summary final order is granted where infant did not sustain a birth-related neurological injury.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A SIYE B ASAKLI O/B/O G IOVANNI

F AULKNOR , A M INOR ,

Petitioner ,

vs. Case No. 22 - 0430N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

H OLMES R EGIONAL M EDICAL C ENTER ,

I NC .,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came on for consideration upon the Unopposed Motion for

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

Neurological Injury Compensation Association (NICA), on August 9, 2022.

S TATEMENT OF T HE C ASE

On January 28, 2022 , Petitioner , Asiye Basakli, on behalf of

Giovanni Faulkner (Giovanni) , a minor, filed a Petition , Under Protest, 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 Petit ion identified Rachel Cartechine, M.D., as the physician who

provided obstetric services at the birth of Giovanni on November 4, 2020 , at

Holmes Regional Medical Center (HRMC), located in Brevard County ,

Florida.

DOAH served Dr. Cartechine, HRMC, and NIC A with a copy of the

Petition on February 11, 2022 . On March 7, 2022, the undersigned entered an

Order Granting Petition for Leave to Intervene, allowing HRMC to intervene

in this matter.

On May 5, 2022, NICA filed a Response to Petition for Benefits, wh ich

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 Statutes. On May 25, 2022 , the parties

filed a Status Repor t, which stated that Petitioner did not challenge NICAÔs

finding of non - compensability and would not request a final hearing, but that

because Intervenor was in the process of obtaining records to evaluate its

position on the claim, Intervenor requested th at the undersigned schedule a

final hearing. On June 1, 2022, the undersigned noticed this matter for a

final hearing on November 21, 2022.

On August 9, 2022, the parties filed a Status Report, which indicated that

Petitioners and Intervenor did not conte st NICAÔs determination of non -

compensability, that NICA would file an unopposed motion for summary final

order, and requested that the undersigned cancel the final hearing in this

matter.

On August 9, 2022, NICA filed its Motion. The Motion reflects tha t

Petitioners and Intervenor do not oppose the Motion.

F INDINGS OF F ACT

1 . Giovanni was born on November 4, 2020 , at HRMC , located in

Brevard County , Florida.

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

medical records for Gi ovanni . In a medical report dated February 24, 2022,

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

In summary, vacuum extraction was applied to

assist vaginal delivery due to a non - reassuring

FHR pattern during labor. Delive ry was

complicated by a shoulder dystocia, which resulted

in a brachial plexus injury. The baby was depressed

at birth with Apgar scores of 2/6/7 and a cord blood

pH of only 6.97. Persistent hypotension occurred

after birth due to blood loss from a subgale al

hematoma. Cooling protocol was initiated for

perinatal depression. MRI on DOL 6 identified

diffuse cortical edema, compatible with hypoxic

brain insult.

There was an obstetrical event that resulted in loss

of oxygen to the babyÔs brain during labor, de livery

and continuing into the immediate post delivery

period. The oxygen deprivation resulted in some

degree of brain injury. I am not able to comment

about the severity of the injury.

3. NICA retained Luis E. Bello Espinosa , M.D. (Dr . Espinosa) , a medic al

expert specializing in pediatric neurology, to examine Giovanni and to review

his medical records. Dr. Espinosa examined Giovanni on April 30, 2022. In a

medical report dated April 30, 2022, Dr. Espinosa summarized his

examination of Giovanni and opined , in pertinent part , as follows:

Giovanni is a 19 - month 26 - days - old boy [sic] with a

history of perinatal depression and who underwent

therapeutic hypothermia after he was assessed to

have mild hypoxic - ischemic encephalopathy.

Giovanni had no seizures in t he NICU. An MRI of

the brain obtained on the 8 th day of life showed

diffuse cortical edema with mild diffusion

restriction, compatible with subacute hypoxemic

ischemic insult, as well as an acute small focus of

periventricular insult along the posterior bo dy of

the right lateral ventricle. Background of

subacute/chronic bilateral periventricular insult.

On his evaluation today Giovanni has normal

development. His neurological examination is also

normal. There are no clinical findings to indicate

evidence o f upper or lower motor neuron signs.

There were no findings to indicate corticospinal,

extrapyramidal, or cerebellar dysfunction.

Results as of question 1: Does the child suffer from

both a substantial mental impairment and a

substantial physical impairme nt?

Giovanni does not suffer of substantial mental or

physical impairment at this time.

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

and physical impairments permanent?

Giovanni does not have permanent mental and

physical impairments.

Results o f 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 occurring during labor, delivery or the

immediate post - delivery p eriod?

Giovanni today has no substantial mental or

physical impairments as result of the reported

findings on his MRI of the brain which depicted

diffuse cortical edema with mild diffusion

restriction, compatible with subacute hypoxemic

ischemic insult, a s well as an acute small focus of

periventricular insult along the posterior body of

the right lateral ventricle.

Results as of question 4: Did the permanent and

substantial mental and physical impairments

themselves occur during labor, delivery or the

im mediate post - delivery period (which period

continues until the baby is medically stable)?

Giovanni does not have mental or physical

impairments due to events that occurred during

labor delivery or the immediate post - delivery

period.

Considering the clini cal presentation, I do feel

there not enough [sic] evidence to recommend

Giovanni is included in the NICA program.

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

opinions filed that are contrary to the opinion of Dr. Espinosa that Giovanni

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

neurological injury under section 766.302(2). Dr . EspinosaÔs opinion is

credited.

C ONCLUSIONS OF L AW

5. DOAH has jurisdiction over the parties to and the subjec t matter o f

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

6. The Legislature established the Plan Ñ for the purpose of providing

compensation, irrespective 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 compensation 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 - rela ted 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 administr ative 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 the instant case, the dispute

must be resolved by the assigned administrative law judge in accordance

with the provis ions of chapter 120, Florida Statutes. §§ 766.304, 766.309,

and 766.31, Fla. Stat.

9. In discharging this responsibility, the administrative 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 infant has

sustained a brain or spinal cord injury caused by

oxygen deprivation or mechanical injury and that

the infan t 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 delivere d 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,

del ivery, 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 obst etrical 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 birth - related neurological injury Ò

a s follows:

Ñ Birth - related neurological injury Ò means injury to

the brain or spina l 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, d elivery, or resuscitation in the

immediate postdelivery period in a hospital, which

renders the infant permanently and substantially

mentally and physically impaired.

11. To be compensable under the Plan, there must have been an

obstetrical event which r esulted 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 impairmen t, 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 the parties do not refute, established that

Giovanni did not suf fer a birth - related neurological injury under the

definition of section 766.302(2). Therefore, Giovanni is not eligible for benefits

under the Plan.

C ONCLUSION

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

O RDERED that:

The Petition filed b y Aisye Basakli, on behalf of Giovanni Faulkner, a

minor , is dismissed with prejudice. The final hearing scheduled for

November 21, 2022, is hereby canceled.

D ONE A ND O RDERED this 15th day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

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 15th day of August , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Ma rstiller , Secretary

Consumer Services Unit Agency for 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. 7020 2450 0001 1717 6689 )

( Certified No. 7020 2450 0001 1717 6627 )

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

Agen cy for Health Care Administration 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tall ahassee, Florida 32308

Tallahassee, Florida 32308 ( Certified No. 7020 2450 0001 1717 6696 )

( Certified No. 7020 2450 0001 1717 6634 )

Jack Tobias Cook, Esquire

Kathe Alexander, Claims Manager Morgan & Morgan, P.A.

Florida Birth - Related Neurological Suite 1600

Injury Compensation Association 20 North Orange Avenue

2252 Killearn Center Boulevard Orlando, Florida 32801

Tallahassee, Florida 32309 ( Certified No. 7020 2450 0001 1717 6702 )

(Certified No. 7020 2450 0001 1717 6641 )

Rebecca Williamson, Esquire Scott Edward Solomon, Esquire

Morgan & Morgan P.A. Falk, Waas, Hernandez, Solomon,

Suite 1600 Mendlestein & Davis, PA

20 North Orange Avenue Suite 500

Orlando, Florida 32801 135 San Lorenzo Avenue

( Certified No. 7020 2450 0001 1717 6658 ) Coral Gables, Florida 33146

( Certified No. 7020 2450 0001 1717 6719 )

Brooke India Charlan, Esquire

Morgan & Morgan, P.A. Brooke M. Gaffney, Esquire

Suite 1600 Smith, Stout, Bigman & Brock, P.A.

20 North Orange Avenue Suite 900

Orlando, Florida 32801 444 Seabreeze Boulevard

( Certified No. 7020 2450 0001 1717 6665 ) Dayt ona Beach, Florida 32118

( Certified No. 7020 2450 0001 1717 6726 )

Rachel Cartechine, M.D.

1350 South Hickory Street

Melbourne, Florida 32901

( Certified No. 7020 2450 0001 1717 6672 )

N OTICE OF 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 Statut es.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original n otice of

a dministrative a ppeal with the a gency c lerk of the Division of Administrative

Hearings within 30 days of rendit ion 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).