22-001089N Jessica Platel, On Behalf Of And As Parent And Natural Guardian Of Aiden Jordan Platel, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 14, 2022.

Summary: Petition for benefits to determine compensability was dismissed with prejudice.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ESSICA P LATEL , O N B EHALF OF A ND A S

P ARENT A ND N ATURAL G UARDIAN OF

A IDEN J ORDAN P LATEL , A M INOR ,

Petitioner ,

vs. Case No. 22 - 1089N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER

This cause came before the undersigned on Respondent, Florida Birth -

Related Neurological Injury Compensation Association's (NICA), Motion for

Partial Summary Final Order (Motion) , 1 filed August 16, 2022.

P RELIMINARY S TATEMENT

On March 24, 2022, Petitioner, Je ssica Platel, on behalf of and as parent

and natural guardian of Aiden Jordan Platel (Aiden), a minor, filed a Petition

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

with the Division of Administrative Hearings (DOAH). The Pet ition sought a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

1 A lthough titled "partial , " NICA's Motion seeks final disposition of the petition for benefits.

The Petition identified Dr. Chia Ling Tung as the physician who provided

obstetric services at the birth of Aiden on December 2, 2 017, at St. Mary's

Medical Center in West Palm Beach, Florida.

DOAH served Dr. Chia Ling Tung, St. Mary's Medical Center, and NICA

with a copy of the Petition on April 11, 2022. On July 13, 2022, after an

extension of time, NICA filed a response to the Pe tition, which stated its

determination that the instant claim was not compensable, as the injury did

not meet the definition of a "birth - related neurological injury," as defined in

section 766.302(2), Florida Statutes. 2 On August 9, 2022, the undersigned

i ssued an Order Requiring Response.

On August 11, 2022, NICA filed a response. The response documented

NICA's contact with Petitioner, who advised that she did not agree with

NICA's determination. NICA stated that it did not believe a hearing was

necessary and intended to file a motion for partial summary final order.

On August 16, 2022, NICA filed the Motion. Petitioner did not respond to

the Motion within the applicable response period in Florida Administrative

Code Rule 28 - 106.204. On September 1, 2022, the undersigned issued an

Order to Show Cause, within seven days, why NICA's Motion should not be

granted. Petitioner did not respond to the Order to Show Cause.

F INDINGS OF F ACT

1. Aiden was born on December 2, 2017, at St. Mary's Medical Center in

West Palm Beach, Florida.

2. NICA requested that Donald C. Willis, M.D. (Dr. Willis), its medical

expert, review Aiden's medical records. Dr. Willis stated his findings and

2 References to the Florida Statutes are to the 2022 version, unless otherwise noted .

opinion in a medical report dated July 9, 2022. Dr. Willis' s affidavit, attached

to the Motion, summarized his findings and he ultimately opined that:

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical trauma to

the baby's brain during labor, delivery or the

immediate post delivery period.

3. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a medical

expert in pediatric neurology. Dr. Duchowny evaluated Aiden on June 29,

2022. Dr. Duchowny's affidavit, attached to the Motion, includes his

neurological evaluation report dated July 1, 2022. In the repo rt, Dr.

Duchowny summarized his examination of Aiden and ultimately opined that:

Based on the findings from today's evaluation,

record review and review of the MR imaging studies,

Aiden's neurological injury, although consistent

with a substantial mental a nd motor impairment,

was likely acquired prior to this birth. I am therefore

not recommending consideration for inclusion in the

NICA program.

4. A review of the file in this case reveals that no expert opinions were

filed that were contrary to the opinio n of Dr. Willis that Aiden did not suffer

an injury that meets the definition of a birth - related neurological injury

under section 766.302(2). Dr. Willis's opinion is credited. Further, t here were

no expert opinions filed that were contrary to Dr. Duchowny 's opinion that

Aiden's neurological deficits were likely acquired prior to his birth.

Dr. Duchowny's opinion is credited.

C ONCLUSIONS OF L AW

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

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

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

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

claims" relating to births occurring on or after January 1, 1989. See

§ 766.303(1), Fla. Stat.

7. The injured infant, his personal representative, parents, dependents,

and next of kin may seek compensation under the Plan by filing a claim for

compensation with DOAH. See §§ 766.302(3), 766.303(2), and 766.305(1), Fla.

Stat. NICA, which administers t he Plan, has "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 - related neurological injury." § 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 administrative law judge to

whom the claim has been assigned. See § 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 provisions of chapter 120, Florida Statu tes. See

§§ 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 birth - 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 infant was thereby render ed 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 delivered 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,

delivery, or resuscitati on 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 "infant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth." § 766.31(1), Fla. Stat.

10. Section 766.302(2) defines the term "birth - related neurological injury"

as follows:

"Birth - related neurological injury" 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 resuscitatio n 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 resulted in loss of oxygen to the baby's brain or a

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 impairment,

inasmuch as both are required to establish compensability. See Fla. Birth -

Related Neurological Inj. Comp. Ass'n v. Div. of Admin. Hearings , 686 So. 2d

1349 (Fla. 1997).

12. The unrefuted evidence established that Aiden did not suffer a

birth - related neurological injury under the definition of section 766.302(2).

Therefore, Aiden is not eligible for benefits under the Plan.

D ISPOSITION

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

O RDERED that the Petition filed by Jessica Platel , on behalf of and as parent

and natural guardian of Aiden Jordan Platel, a minor, is dismissed with

prejudice.

D ONE A ND O RDERED this 14th day of September , 2022 , in Tallahassee,

Leon County, Florida.

S

F RANCINE M. F FOLKES

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 14th day of September, 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

(Address of Record) (eServed)

( Certified No. 7021 2720 0000 3800 5797 ) ( Certified No. 7021 2720 0000 3800 5834 )

Kim Kellum, Esquire Thomas M. Hoeler, Esquire

(eServed) (eServed)

( Certified No. 7021 2720 0000 3800 5803 ) ( Certified No. 7021 2720 0000 3800 5841 )

Kathe Alexander, Claims Manager Jessica Platel

(eServed) (Address of Record)

( Certified No. 7021 2720 0000 3800 5810 ) ( Certified No. 7021 2720 0000 3800 5858 )

St. Mary's Medical Center David W. Black, Esquire

(Address of Record) (eServed)

( Certified No. 7021 2720 0000 3800 5827 ) ( Certified No. 7021 2720 0000 3800 5865 )

Chia Ling Tung, M.D.

(Address of Record)

( Certified No. 7021 2720 0000 3800 5872)

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 co mmenced 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 cler k 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).