22-000466N Katelynn Webb, Individually And As Parent And Next Friend Of Chandler Williams, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 28, 2022.

Summary: Petitioner did not demonstrate a birth-related neurological injury as defined in section 766.302(2), Florida Statutes.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K ATELYNN W EBB , I NDIVIDUALLY A ND A S

P ARENT A ND N EXT F RIEND OF C HANDLER

W ILLIAMS , A M INOR ,

Petitioner ,

vs. Case No. 22 - 0466N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

a nd

H USSAIN E SMAIL - R AWJI , M.D. , A ND

M EMORIAL H OSPITAL - W EST V OLUSIA , I NC .

D / B / A A DVENTHEALTH D ELAND ,

Intervenors .

/

S UMMARY F INAL O RDER

On August 9, 2022 , Respondent, Florida Birth - Related Neurological

Injury Compensation Association (NICA), filed an Unopposed Motion for

Summary Final Order (Motion). The Motion is supported by the affidavits

and reports of Dr. Donald C. Willis, M.D., and Dr. Luis E. Bello Espinosa,

M.D. The Motion indicates that neither Petitioner nor Intervenor s oppose the

Motion, and neither party filed a response in opposition within the time

period established in Florida Administrative Code Rule 28 - 106.204 .

S TATEMENT O F T HE I SSUE

Wheth er PetitionerÔs son, Chandler Williams (Chandler or the Infant) ,

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

766.302(2), Florida Statutes.

P RELIMINARY S TATEMENT

On February 2, 2022, Petitioner filed a Petition for NICA B enefits

(Petition). The Petition identified AdventHealth Deland (Advent) as the

hospital where Chandler was born, and Hussein Esmail - Rawji, M.D. , as the

physician providing obstetrical services.

On February 14, 2022, NICA , Advent, and Dr. Esmail - Rawji we re

notified by certified mail that the Petition had been filed. Both Advent and

Dr. Esmail - Rawji moved to intervene and both were granted intervention

status.

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

indicating that the claim was not compensable under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan) . On March 22, 2022,

an Order was issued, directing the parties to advise whether a hearing on

compensability would be necessary, and if so, when and for how long the

hearing should be scheduled. Intervenors requested an extension of time to

conduct limited discovery to determine whether a hearing was necessary, and

on June 29, 2022, the parties filed a Status Report indicating that

Intervenors had not made a final decision concerning whether a hearing was

necessary, but in the event that it was, all parties were available

September 14, 2022. 1 On June 30, 2022, a Notice of Hearing was issued,

setting the hearing for the date provided.

On August 1, 2022, NICA filed a n additional Status Report, advising that

a hearing would not be necessary and that NICA would be filing a Motion for

1 It was fortuitous that the undersigned was available on the sole date provided by the

parties. In the future, it would be preferable for the parties to provide multiple days of

availability to facilitate the sched uling process.

Summary Final Order. As noted above, the Motion was filed August 9, 2022,

and on August 10, 2022, an Order was issued canceling the hear ing.

While NICA filed the Motion on August 9, 2022, it did not file the

affidavits of Dr. Willis or Dr. Espinosa at that time. By Order dated

August 24, 2022, NICA was advised that pursuant to section 120.57(1)(h),

Florida Statutes, in the absence of aff idavits, depositions, answers to

interrogatories, or admissions on file, there was no record basis to support

the Motion. Accordingly, NICA was directed to file the physiciansÔ affidavits,

or in the alternative, the Motion would be denied and rescheduled f or

hearing. NICA filed the affidavits of its experts on September 13, 2022, and

those affidavits have been considered in the preparation of this Summary

Final Order.

All references to the Florida Statutes are to the 2019 codification. All

emphasis is in t he original unless otherwise indicated.

F INDINGS O F F ACT

1. Chandler was born on November 4, 2019, and weighed 4,040 grams.

2. There is no dispute that the physician providing obstetrical services at

his birth was a participating physician in the NICA pr ogram.

3 . Chandler was delivered vaginally, but with some complications. He

presented with shoulder dystocia, lasting approximately one minute.

Chandler received bag and mask ventilation resuscitation for about two

minutes, and was transferred to another h ospital for cooling protocol, due to

suspected hypoxic ischemic encephalopathy (HIE) risk.

4 . Dr. Donald Willis, M.D., is a physician licensed in both Florida and

Tennessee, and is board certified in obstetrics and gynecology. Dr. Willis is an

associate pr ofessor a t the Quillen College of Medicine at East Tennessee

State University and specializes in maternal - fetal medicine.

5 . Dr. Willis reviewed the records related to the InfantÔs birth and post -

delivery treatment. In his affidavit , he states:

Based upon my education, training and experience,

it is my professional opinion, within a reasonable

degree of medical probability, that, there was an

obstetrical event that resulted in a loss of oxygen to

the babyÔs brain during labor, delivery, and

continuing into the immediate post - delivery period.

The oxygen deprivation resulted in brain injury but

I am not able to comment about the severity of the

injury.

6 . Dr. Luis E. Bello Espinosa , M.D., is a physician licensed in the State of

Florida. He is board certified in pediatric neurology and neurology, epilepsy,

clinical neurophysiology , and epilepsy monitoring, and is presently the

Division Head of Pediatric Neurology and Pediatric Epilepsy at Arnold

Palmer ChildrenÔs Hospital in Orlando, Florida.

7 . Dr. Espinosa e xamined Chandler on March 5, 2022, when he was

approximately two years, four months old. Based on his review of the medical

records and examination of the Infant, he compiled a report, which he

incorporates by reference in his affidavit. His report states in summary:

Chandler is a 2 - year 4 - month old boy with a history

of perinatal depression due to moderate hypoxic -

ischemic encephalopathy of birth for which he

underwent 72 - hours therap eutic hypothermia. He

was documented in the NICU to have acute

electroc linical and electrographic seizures which

required combined anti - seizure medications for

seizure control. An MRI of the brain obtained on

day 4 th of life demonstrating findings indicative [of]

acute ischemic injury involving the bilateral

thalami, left int ernal capsule and left insula.

Despite the acute neonatal HIE, on the

examination today Chandler has a completely

normal neurological examination without any

remote signs as a result of the acute perinatal

insult. Chandler has no evidence of clinical sign s of

cerebral cortical, subcortical, extrapyramidal, or

cerebellar dysfunction. Chandler does not have

evidence of upper or lower neuron dysfunction.

There is no evidence of myelopathy (spinal cord

dysfunction), plexopathy, neuropathy,

neuromuscular juncti on or myopathic processes.

8. Dr. Espinosa concluded that Chandler does not suffer from either

substantial mental or physical impairments at this time.

9. No evidence was presented to rebut the findings or opinions of either

physician. Their opinions are credited.

10. As a matter of ultimate fact, Chandler did not suffer from a birth -

related neurological injury that resulted in substantial and permanent

mental and physical impairment.

C ONCLUSIONS O F L AW

11. The Division of Administrative Hearings has juri sdiction over the

parties and the subject matter of these proceedings pursuant to sections

120.569, 120.57(1), and 766.304.

12. The Legislature established the Plan to provide compensation,

regardless of fault, for children with severe and permanent birth - related

neurological injury claims. § 766.303(1), Fla. Stat.

13. An infantÔs parents or guardians, among others, may seek

compensation under the Plan by filing a claim for compensation with the

Division of Administrative Hearings . §§ 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

information related to whether the c hild has suffered a birth - related

neurological injury.

14. 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 award is approved by the assign ed

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.

15. The initi al 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 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 death caused by genetic or congenital

abnormality.

16. 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 infant was

rendered permanently and su bstantially mentally and physically impaired,

then section 766.309(1) provides a rebuttable presumption that the injury is a

birth - related neurological injury.

1 7 . The evidence presented in this case does not support such a finding.

The physician reports a nd affidavits demonstrate that the Infant did suffer a

hypoxic ischemic event during labor and delivery that resulted in an injury to

the brain. However, that event did not cause any permanent and substantial

mental or physical injury. Accordingly, Chandle r is not eligible for benefits

under the Plan.

C ONCLUSION

Based upon the Findings of Facts and Conclusions of Law, NICAÔs Motion

for Summary Final Order is granted, and PetitionerÔs Petition is dismissed

with prejudice.

D ONE A ND O RDERED this 28th day of Se ptember , 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 Hearin gs

this 28th day of September , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

(Address of Record) (eServed)

( Certified No. 70211970000048606836) (Ce rtified No. 70211970000048606881)

Kim Kellum, Esquire Thomas M. Hoeler, Esquire

(eServed) (eServed)

(Certified No. 70211970000048606843) (Certified No. 70211970000048606898)

Kathe Alexander, C laims Manager Allison C. McMillen, Esquire

(eServed) (eServed)

(Certified No. 70211970000048606850) (Certified No. 70211970000048606904)

Robert D. Henry, Esquire Alan P. Mirelman, Esquire

(A d dress of Record) (eServed)

(Certified No. 70211970000048606867) (Certified No. 7011197000004860691 1)

Ryan P. Kopf, Esquire Brooke M. Gaffney, Esquire

(eServed) (eServed)

(Certified No. 70211970000048606874) (Certified No. 70211970000048606928)

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 appeal to

the District Court of Appeal pursuant to section 766.311(1), Fl orida 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 the a gency c lerk of the Division of Administrative

Hearings within 30 da ys 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. Carre ras , 598 So. 2d 299

(Fla. 1st DCA 1992).