22-000432N Nova Wilhelm O/B/O Lilia Wilhelm, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, July 28, 2022.

Summary: Summary final order granted where it was undisputed that an oxygen deprivation event did not occur during labor or delivery that caused a brain injury resulting in permanent and substantial mental and physical impairment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

N OVA W ILHELM O/B/O L ILIA W ILHELM , A

M INOR ,

Petitioner ,

Case No. 22 - 0432N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

On July 15, 2022, Respondent, Florida Birth - Related Neurological Injury

Compensation Association ( Ñ NICA Ò), filed a Motion for Summary Final Order. The

Motion is unopposed and re lies on the reports and affidavits of Donald Willis, M.D.,

and Michael Duchowny, M.D ., filed July 20, 2022 .

S TATEMENT OF T HE C ASE

W hether Lilia Wilhelm ( ÑLiliaÒ ) suffered a Ñ birth - related neurological injury ,Ò as

defined by section 766.302(2), Fl orida Sta tutes (202 1 ), for which compensation

should be awarded under the Florida Birth - Related Neurological Injury

Compensation Plan (ÑPlanÒ) .

P RELIMINARY S TATEMENT

On February 7, 2022 , Petitioner , Nova Wilhelm, on behalf of Lilia, a minor, filed

a Petition , Unde r Protest, for B enefits Pursuant to Florida Statutes Section 776.301

et seq., with the Florida Division of A dministrative Hearings (ÑDOAHÒ). The

Petition named Kristen Shepherd , M.D., as the obstetrician who delivered Lilia on

July 31, 2018 , and Sarasota M emorial Hospital as the h os pital where she was born.

DOAH sent copies of the Petition via Certified U.S. Mail to NICA , Dr. Shepherd,

and the hospital on February 11, 2022.

After receiving two extensions, NICA filed its Response to Petition for Benefits

o n May 16, 2022. NICA argued that its experts reviewed the medical records,

conducted an examination of Lilia, and opined that the claim was not compensable.

In an Order dated May 18, 2022, the undersigned required the parties to file a

status report as to their respective positions on the issue of compensability. On

June 16, 2022, the parties filed a Joint Response to Order indicating that Petitioner

did not intend to challenge NICAÔs determination of non - compensability and, thus,

a final hearing was unnece ssary. In an Order dated June 21, 2022, the undersigned

gave NICA 30 days to move for a summary final order.

On July 15, 2022, NICA filed its Motion for Summary Final Order. The Motion

confirmed that Petitioner did not dispute NICAÔs position of non - com pensability and

that the Motion was unopposed. On July 20, 2022, NICA filed supporting affidavits

and reports from Dr. Willis and Dr. Duchowny.

F INDINGS OF F ACT

1. Petitioner is a parent and legal guardian of Lilia.

2. On July 31, 2018 , Ms. Wilhelm gave birth to Lilia, a single gestation of almost

41 weeks, at the h ospital . Lilia was delivered by cesarean section and weighed

3,560 grams .

3. Dr. Shepherd provided obstetric al services and delivered Lilia .

4. The undisputed available evidence consists of aff idavits and reports of two

physicians: Dr. Willis, a board - certified obstetrician; and Dr. Duchowny, a board -

certified pediatric neurologist.

5. Dr. Willis reviewed the medical records and offered his opinions about LiliaÔs

delivery in a report dated Febru ary 27, 2022 . Dr. Willis summarized his opinions as

follows:

In summary, labor was induced for post - dates. The fetal

heart rate tracing was abnormal on admission with

reduced fetal heart rate variability. Recurrent fetal heart

rate decelerations occurred a s labor was induced. Despite

delivered [sic ] by Cesarean section for intolerance to

labor, the baby was not depressed at birth. Apgar scores

were 8/9. No resuscitation was required. The newborn

hospital course was essentially uncomplicated. MRI was

done at one year of age for developmental delay and found

evidence of a remote cerebral infarction with

leukomalacia .

There was no obstetrical event that resulted in loss of

oxygen or mechanical trauma to the baby Ô s brain or spinal

cord during labor, delivery or the immediate post delivery

period. The baby did suffer a cerebral infarction at some

time prior to one year of age, but this was not due to birth

related oxygen deprivation or trauma.

6. Based on the medical records, Dr. Willis opined to a reasonable de gree of

medical probability that no obstetrical event occurred during birth that caused Lilia

to suffer oxygen deprivation or mechanical trauma to her brain or spinal cord.

7. Dr. Duchowny reviewed the medical records, conducted an independent

medical exam ination (ÑIMEÒ) on Lilia on May 11, 2022, and offered opinions as to

whether Lilia suffers from permanent and substantial mental and physical

impairment caused by oxygen deprivation in a report dated May 15, 202 2 .

Dr. Duchowny summarized his opinions as fo llows:

In summary, Lilia Ô s examination demonstrated a spastic

right hemiparesis affecting the upper and lower

extremities, microcephaly, expressive language delay,

speech articulation deficit and oromotor incoordination.

While her gait was asymmetric due t o her right

hemiparesis, she could ambulate in a stable fashion

without losing her balance. Lilia Ô s social and behavioral

development are progressing at an age - appropriate level.

Receptive language competence is fully developed and she

does not evidence a visual field deficit.

Review of medical records reveals that Lilia was born at

term by repeat Caesarian section and had a birthweight

of 7 pounds 14 ounces. Apgar scores were 8 and 9 and

there were no postnatal problems prior to nursery

discharge. As stat ed by her father, Lilia was observed to

have right - sided weakness at her 9 - month pediatric visit.

An MR imaging study on June 18, 2019 revealed an old

left middle cerebral artery territory infarction, a smaller

old right middle cerebral artery territory in farction and

periventricular leukomalacia. A thrombophilia evaluation

was unremarkable.

Lilia Ô s medical records are consistent with in - utero and

not intra - partum acquired cerebrovascular events. There

is no evidence to suggest oxygen deprivation or

mechan ical injury. I am therefore not recommending that

Lilia be considered for inclusion in the NICA program .

8 . Based on the medical records and the IME, Dr. Duchowny opined to a

reasonable degree of medical probability that Lilia suffered an in - utero acquire d

cerebrovascular event rather than oxygen deprivation or mechanical injury during

birth.

C ONCLUSIONS OF L AW

9. DOAH has jurisdiction over the parties and exclusive jurisdiction over the

subject matter of this case. § 766.304, Fla. Stat .

10. The Legislatur e established the Plan Ñ for the purpose of providing

compensation, irrespective of fault, for birth - related neurological injury claims Ò

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

11. An injured infant, his or her personal representativ e, 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 45 days from the date that a complete cla im

is served to file a response and to submit relevant written information as to whether

the injury is a birth - related neurological injury. § 766.305(4), Fla. Stat.

12. If NICA determines that the infant suffered a compensable birth - related

neurological in jury, it may award compensation to the claimants, as approved by

the assigned administrative law judge (ÑALJÒ) . § 766.305(7), Fla. Stat. But, if NICA

disputes the claim, as it does here, the dispute must be resolved by an ALJ in

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

Stat.

13. In determining compensability, the ALJ first determines if the child suffered

a Ñbirth - related neurological injuryÒ based on the available evidence.

14. Pursuant to section 766.302(2), th e term Ñ birth - related neurological injury Ò is

defined as follows:

[I] njury 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 gra ms 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

im paired. This definition shall apply to live births only

and shall not include disability or death caused by genetic

or congenital abnormality.

Thus, a bir th - related neurological injury has four components: Ñ (1) an injury to the

brain or spinal cord; (2) w hich is caused by oxygen deprivation or mechanical injury;

(3) during labor, delivery, or resuscitation in the immediate postdelivery period; and

(4) which renders the infant permane ntly and substantially impaired . Ò Bennett v.

St. VincentÔs Med. Ctr., Inc. , 71 So. 3d 828, 837 (Fla. 2011).

15. Petitioner ha s the burden to establish by a preponderance of the evidence

Ñ that the infant has sustained a brain or spinal cord injury caused by oxygen

deprivation or mechanical injury and that the infant was thereby r endered

permanently and substantially mentally and physically impaired. Ò § 766.309(1)(a),

Fla. Stat.; see also § 120.57(1)(j), Fla. Stat. (providing that findings of fact, except in

penal and licensure disciplinary proceedings or as provided by statute, Ñ s hall be

based upon a preponderance of the evidence Ò ); Balino v. Dep Ô t of H RS , 348 So. 2d

349, 350 (Fla. 1st DCA 1977) (holding generally that Ñ the burden of proof, apart

from statute, is on the party asserting the affirmative of an issue be fore an

administ rative tribunalÒ ).

16. If Petitioner meet s her burden, section 766.309(1) provides that there is a

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

Conversely, if Petitioner do es not meet her burden, the undersigned is requir ed to

issue an order dismissing the P etition. Id.

17 . Based on the Findings of Fact above, the undisputed available evidence

establishes that no obstetrical event occurred during birth that caused Lilia to

suffer oxygen deprivation or mechanical trauma to her brain or spinal cord . Thus,

Lilia did not suffer a birth - related neurological injury and she is not eligible for

benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law herein, PetitionerÔ s claim

is not compensable, NI CAÔs unopposed Motion for Summary Final Order is granted,

and the Petit ion is dismissed with prejudice.

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

Florida.

S

A NDREW D. M ANKO

Administrativ e 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 28th day of July, 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Inve stigation Manager Simone Marstiller , Secretary

Consumer Services Unit Agency for Health Care Administration

Department of Health 2727 Mahan Driv e, Mail Stop 1

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

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

(Certified No. 7021 2720 0000 3800 7050) 3800 6909)

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. 7021 2720 0000 3800 6862) (Certified No. 7021 2720 0000

3800 6916)

Kathe Alexander, Claims Manager

Florida Birth - Related Neurological Jack Tobias Cook, Esquire

Injury Compensation Association Morgan & Morgan, P.A.

2252 Killearn Center Boulevard 20 North Orange Avenue , Suite 1600

Tallahassee, Florida 32309 Orlando, Florida 32801

(Certified No. 7021 2720 0000 3800 6879) (Certified No. 7021 2720 0000

3800 6923)

Rebecca Williamson, Esquire

Morgan & Morgan P.A. Brooke India Charlan, Esquire

20 North Orange Avenue , Suite 1600 Morgan & Morgan, P.A.

Orlando, Florida 32801 20 North Orange Avenue , Suite 1600

(Certified No. 7021 2720 0000 3800 6886) Orlando, Florida 32801

(Certified No. 7021 2720 0000

Kristen Shepherd, M.D, 3800 6930)

1700 South Tramiami Trail

Sarasota, Florida 34239 M. Mark Bajalia, Esquire

(Certified No. 7021 2720 0000 3800 6893) Bajalia Law

11512 Lake Mead Avenue , Suite 301

Sarasota Memorial Hospital Jacksonville, Florida 32256

Attention: Risk Management (Certified No. 7021 2720 0000

1700 South Tamiami Trail 3800 6947)

Sarasota, Florida 34239

(Certified No. 7021 2720 0000 3800 6954)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

Review of a final order of an a dministrative 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 original 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 District C ourt of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological Injury Comp. Ass Ô n v.

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992).