22-001090N John And Brieanne Ragas, On Behalf Of And As Parents And Natural Guardians Of Olivia Ragas, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, July 14, 2022.

Summary: Petitioners are not entitled to benefits because infant did not meet weight threshold.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J OHN A ND B RIEANNE R AGAS , O N B EHALF

OF A ND A S P ARENTS A ND N ATURAL

G UARDIANS OF O LIVIA R AGAS , A M INOR ,

Petitioners ,

vs. Case No. 22 - 1090N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

R espondent,

and

J ENNIFER A LLEN , C NM ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This came before the undersigned on RespondentÔs Motion for Summary

Fin al Order, filed May 17, 2022. In its Motion, the Florida Birth - Related

Neurological Injury Compensation Association ( NICA ) asserts that in order

for a claim to be compensable under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan), the statutory prerequisites of section

766.309, Florida Statutes, must be met, including:

(1) The administrative law judge shall make the

following determinations based upon all available

evidence:

(a) Whether the injury claimed is a birth - related

neurologic al injury . . . .

(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 su pervised by

a participating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital.

* * *

(2) If the administrative law judge determines that

the injury alleged is not a birth - related neurological

injury or that obstetrical services were not

delivered by a participating physician at the birth,

she or he shall enter an order . . . . (emphasis

added).

The term Ñbirth - related neurological injuryÒ is defined in section

766.302(2) as:

(2) ÑBirth - relate d 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 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 l ive births only and shall not include

disability or death caused by genetic or congenital

abnormality. (emphasis added).

According to the pertinent medical records attached to NICAÔs motion, the

minor childÔs weight at birth was 2,322 grams. As such, this claim does not

meet the statutory requirements of the NICA Plan, and therefore is not a

compensable claim, according to NICAÔs motion.

Neither Petitioners nor Intervenor filed a response to NICAÔs motion

within the allowable response period. However, du e to the dispositive nature

of the motion, on June 8, 2022, the undersigned entered an Order to Show

Cause, affording the parties an additional opportunity to file a written

response, should they so choose. No party timely filed a response to the Order

to Show Cause.

F INDINGS OF F ACT

1. On February 28, 2019, Brie A nne Ragas gave birth to a baby girl named

Olivia Ragas (Olivia) at Baptist Hospital Pensacola.

2. A copy of OliviaÔs Delivery Record was attached to the Motion for Final

Summary Order.

3. The Del ivery Record obtained from Baptist Hospital Pensacola lists

OliviaÔs weight at birth as 2,322 grams.

4. The only evidence of record are the limited medical records, which

identify OliviaÔs birth weight as 2,322 grams. Petitioners, who bear the

burden of p roof, have submitted nothing to refute a determination that

OliviaÔs birth weight was below the 2,500 grams required for eligibility for a

single gestation, under the definition of birth - related neurological injury as

defined in section 766.302(2).

C ONCLU SIONS OF L AW

5. 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.

6. The Plan was established by the Legislature Ñfor the purpose of

providing com pensation, irrespective of fault, for birth - related neurological

injury claimsÒ related to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

7. 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

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

neurological injury.

8. If NICA determines that the alleged injury is a birth - related

neurological injury th at is compensable under the Plan, it may award

compensation to the claimant, provided that the award is approved by the

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

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

assigned administrative law judge in accordance with chapter 120, Florida

Statutes. §§ 766.304, 766.30, and 766.31, Fla. Stat.

9. The first inquiry is whether the infant has sustained a birth - related

neurological injury as defined by section 766.302(2), which provides:

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 resuscitation in the

immediate postdelivery period in a hospital, which

renders the infant permanently and substantially

mentally and phys ically impaired. This definition

shall apply to live births only and shall not include

disability or death caused by genetic or congenital

abnormality. (emphasis added).

10. If the administrative law judge determines that the infant meets the

statutory th reshold for weight and has sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical injury, and that as a result of the

injury the infant was rendered permanently and substantially mentally and

physically impaired, then section 76 6.309(1) provides that there is a

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

11. In this case, the evidence does not support such a finding. The

undisputed evidence presented indicates that at birth, Olivia weighed

2,32 2 grams, which is below the threshold weight specified in the definition

in section 766.302(2). This issue is dispositive with respect to compensability.

Based upon this evidence, Olivia did not sustain a birth - related neurological

injury as defined in sec tion 766.302(2), and is not eligible for benefits under

the Plan.

C ONCLUSION

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

PetitionersÔ claim is not compensable under the Plan, and the Petition is

dismissed with prejudice.

D ONE A ND O RDERED this 1 4 th day of July , 2022 , in Tallahassee, Leon

County, Florida.

S

W. D AVID W ATKINS

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

File d with the Clerk of the

Division of Administrative Hearings

this 1 4 th 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

Tallahass ee, Florida 32399 - 3275 (Certified No. 7020 2450 0001 1717 6436)

(Certified No. 7020 2450 0001 1717 6429)

Thomas M. Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care A dministration

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. 7020 2450 0001 1717 6450)

(Certified No. 7020 2450 0001 1717 6443)

John Ragas

Kathe Alexander, Claims Manager BrieAnne Ragas

Florida Birth - Related Neurological 2969 Sky Crest Drive

Injury Compensation Association Pensacola, Florida 32514

2252 Killearn Center Boulevard (Certified No. 7020 2450 0001 1717 6474)

Tallahassee, Florida 32309

(Certified No. 7020 2450 0001 1717 6467) Baptist Hospital

Attention: Risk Management

Andrew S. Bolin, Esquire 1000 West Moreno Street

Bolin Law Group Pensacola, Florida 32501

1905 East 7th Avenue (Certified No. 7020 2450 0001 1717 6498)

Tampa, Florida 33605

(C ertified No. 7020 2450 0001 1717 6481)

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 pursu ant 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 Adminis trative

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 Neurologica l Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).