22-000668N Isaac Momplaisir And Alexandra Momplaisir O/B/O Alexander Momplaisir, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, July 25, 2022.

Summary: Parties agreed injury was not compensable. Unopposed motion for summary final order granted.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

I SAAC M OMPLAISIR A ND A LEXANDRA

M OMPLAISIR O/B/O A LEXANDER

M OMPLAISIR , A M INOR ,

Petitioners ,

vs. Case No. 22 - 0668N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

A DVENTIST H EALTH S YSTEMS /S UNBELT ,

I NC . D/B/A A DVENTHEALTH W INTER

P ARK ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause come s before the undersigned on the Unopposed Motion for

Summary Final Order of Respondent, Florida Birth - Related Neurological

Injury Compensations Association (NICA), filed July 18, 2022. The m otion

states that it is unopposed , and the status report filed June 24, 2022, states

that Petitioners and Intervenor do not contest NICA's finding of non -

compensability.

NICA's m otion seeks entry of a s ummary f inal o rder pursuant to sections

120.57(1)(h) and 766.309, Florida Statutes (2021) , (1) determining that the

claim in this case is not compensable under the NICA plan because

Alexander Momplaisir did not suffer a birth - related neurological injury as

defined by se ction 766.302(2); and (2) dismissing this claim with prejudice.

I SSUE

Did Alexander Momplaisir suffer a " birth - related neurological injury, " as

defined by section 766.302(2), for which compensation should be awarded

under the Florida Birth - Related Neurolog ical Injury Compensation Plan

(Plan)?

F INDINGS OF F ACT

1. Petitioners, Isaac Momplaisir and Alexandra Momplaisir, are the

parents of Alexander Momplaisir, and bring this action on his behalf.

2. A lexander Momplaisir was born on September 24, 2021, at

AdventHealth Winter Park.

3. The Momplaisirs filed a Petition, Under Protest for Plan Benefits, on

February 24, 2022. NICA contested the Petition asserting that Alexander's

injury was not compensable by the Plan because the injury did not meet the

definiti on of a birth - related neurological injury as defined by section

766.302(2). NICA contested the Petition.

4. NICA retained two experts to determine whether Alexander had

suffered a compensable injury. The written opinion of Donald C. Willis, M.D . ,

based upo n his review of pertinent medical records, supports a finding that

Alexander experienced oxygen deprivation during labor and delivery and

during the immediate post - delivery period , but that the deprivation did not

result in a permanent or substantial brain injury.

5. Dr. Willis makes this statement:

3. Based upon my education, training and

experience, it is my professional opinion, within a

reasonable degree of medical probability, that,

placental abruption occurred during labor and

resulted in loss of oxygen to the baby's brain during

labor, delivery and continued into the immediate

post - delivery period. The oxygen deprivation

resulted in some initial brain injury although I am

not able to comment about the severity of the injury

or whether the brain in jury was permanent. A

complete summary of my medical review and report

is attached hereto as Exhibit "B".

6. The opinion of Michael Duchowny, M.D., based upon a review of the

medical records and evaluation of Alexander , also supports finding that

Alexander did not suffer permanent or substantial impairment as a result of

obstetrical services delivered during the course of labor, delivery, or

resuscitation in the immediate post - delivery period.

7. Dr. Duchowny makes this statement:

Although Xander [Alexander] is only 8 - months - old,

his developmental progress does not suggest that he

has or will develop a substantial motor or mental

impairment. Rather Xander has a minor delay in the

motor development of his right arm, and hi s

communication appears to be progressing at an age -

appropriate level.

C ONCLUSIONS OF L AW

8. The Division of Administrative Hearings (DOAH) has jurisdiction over

the parties to and the subject matter of these proceedings. §§ 766.301 -

766.316, Fla. Stat.

9. The Legislature established the Plan " for the purpose of providing

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

claims " related to births occurring on or after January 1, 1989. § 766.303(1),

Fla. Stat.

10. An injured infant, his or her 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. Section 766.305(4) provides that NICA, which

a dministers 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 relating to the issue of whether the injury is a birth - related

neurological injury. In this case th at time period was enlarged.

11. If NICA determines that the alleged injury 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

assigned administr ative law judge. § 766.305(7), Fla. Stat. However, if NICA

disputes the claim, as it does in this case, the dispute must be resolved by the

assigned administrative law judge in accordance with chapter 120. §§ 766.304

and 766.31, Fla. Stat.

1 2. The first in quiry is whether the infant has sustained a birth - related

neurological injury as defined by section 766.302(2).

13. In this case, the uncontested evidence does not support a finding that

the injury is a birth - related neurological injury. Based upon the evi dence and

the Findings of Fact, Alexander Momplaisir did not sustain a birth - related

neurological injury as defined in section 766.302(2). Petitioners are therefore

not eligible for benefits under the Plan.

C ONCLUSION

Based upon the Findings of Fact and Conclusions of Law above,

Petitioners' claim is not compensable under the Plan. I t i s O RDERED that the

Petition is dismissed with prejudice.

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

County, Florida.

S

J OHN D. C. N EWTON , II

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

thi s 25th day of July , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , 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. 7021 2720 0000 3800 6794 )

(Certified No. 7021 2720 0000 3800 6749 )

Thomas M. Hoeler, Esquire

Kim Kellum, 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 6800 )

(Certified No. 7021 2720 0000 3800 6756 )

Brooke India Charlan, Esquire

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

Florida Birth - Related Neurological 20 North Orange Avenue , Suite 1600

Injury Compensation Association Orlando, Florida 32801

2252 Killearn Center Boulevard (Certified No. 7021 2720 0000 3800 6817 )

Tallahassee, Florida 32309

(Certified No. 7021 2720 0000 3800 6763 ) Travase Lloyd Erickson, Esquire

Saalfield Shad, PA

Jack Tobias Cook, Esquire 245 Riverside Avenue , Suite 400

Morgan & Morgan, P.A. Jacksonville, Florida 32202

20 North Orange Avenue , Suite 1600 (Certified No. 7021 2720 0000 3800 6824 )

Orlando, Florida 32801

(Certified No. 7021 2720 0000 3800 6770 ) Vartika Bhardwaj, M.D.

3000 HunterÔs Creek Boulevard

Brooke M. Gaffney, Esquire Orlando, Florida 32837

Smith, Stout, Bigman & Brock, P.A. (Certified No. 7021 2720 0000 3800 6831 )

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118 Nikorn Roy Arunakul, M.D.

(Certified No. 7021 2720 0000 3800 6787 ) 1801 Lee Road , Suite 165

Winter Park, Florida 32789

(Certified No. 7021 2720 0000 3800 6848 )

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 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 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).