22-001330N Jasmin Casey O/B/O Izabella Hewitt, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 18, 2022.

Summary: NICA's unopposed motion for summary final order is granted where infant did not sustain a birth-related neurological injury.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J ASMIN C ASEY O/B/O I ZABELLA H EWITT ,

A M INOR ,

Petitioner ,

vs. Case No. 22 - 1330N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

This cause came on for consideration upon the RespondentÔs Motion for

Summary Final Order (Motion) filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on August 15, 2022.

S TATEMENT OF T HE C ASE

On April 22, 2022 , Petitioner , Jasmin Casey, on behalf of Izabella Hewitt

(Izabella) , a minor, filed a Petition , Under Protest, for Benefits Pursuant to

Florida Statute Section 766.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH ) for a determination of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

The Petition identified Emilio An t onetti, M.D., as the physician who

provid ed obstetric services at the birth of Izabella on July 16, 2021 , at

Ascension Sacred Heart Pensacola, located in Escambia County , Florida.

DOAH served Dr. Antonetti, Ascension Sacred Heart Pensacola, and

NICA with a copy of the Petition on May 3, 2022 .

On June 17, 2022, NICA filed a Response to Petition for Benefits, which

stated its determination that the instant claim is not compensable as the

injury does not meet the definition of a Ñbirth - related neurological injuryÒ as

defined in section 766.302(2), Florida Statutes. On July 5, 2022 , the parties

filed a Joint Status Report, which stated that Petitioner did not challenge

NICAÔs finding of non - compensability and would not request a final hearing.

On August 15, 2022, NICA filed its Motion. The Motion reflects that

Petitioner do es not oppose the Motion.

F INDINGS OF F ACT

1 . Izabella was born on July 16, 2021, at Ascension Sacred Heart

Pensacola , located in Escambia County , Florida.

2. Donald Willis, M.D. (Dr. Willis) , was requested by NICA to review th e

medical records for Izabella . In a medical report dated May 25, 2022,

Dr. Willis summarized his findings and opined , in pertinent part , as follows:

In summary, labor was complicated by a non -

reassuring FHR pattern. A fetal heart rate in the

60 - 70 bpm ran ge was noted and emergency

Cesarean section was done. The baby was

depressed at birth with Apgar scores of 1/1/1

despite a reasonable cord blood pH of 7.38.

Resuscitation require d intubation and chest

compressions followed by epinephrine and normal

saline boluses. EEG was consistent with seizure

activity shortly after birth. Metabolic acidosis

continued during the immediate post - delivery

period. The initial arterial blood gas pH was 7.1

with a base excess of - 16. MRI on DOL 5 was

consistent with hypoxic isc hemic brain injury.

I am unable to completely explain the relatively

normal umbilical cord blood pH of 7.38 with Apgar

scores of 1/1/1 and significant clinical newborn

depression. The cord blood gas could be incorrect or

acidosis worsened immediately afte r birth. In

either event, oxygen deprivation occurred that

resulted in brain injury.

There was an obstetrical event that resulted in loss

of oxygen to the babyÔs brain during labor, delivery

and continuing into the immediate post delivery

period. The oxyg en deprivation resulted in brain

injury as indicated by seizure activity and MRI

findings consistent with hypoxic ischemic injury. I

am not able to comment about the severity of the

injury.

3. NICA retained Luis E. Bello Espinosa , M.D. (Dr . Espinosa) , a m edical

expert specializing in pediatric neurology, to examine Izabella and to review

her medical records. Dr. Espinosa examined Izabella on June 11, 2022. In a

medical report dated June 11, 2022, Dr. Espinosa summarized his

examination of Izabella and opin ed , in pertinent part , as follows:

Izabella is an Eleven - month - old girl with a history

of moderate hypoxic - ischemic encephalopathy at

birth, for which she underwent therapeutic

hypothermia for 72 - hours. She had acute

symptomatic electroclinical and electro graphic

seizures in the NICU, and an MRI of the brain

obtained on the 7 th day of life showed findings

indicative of an acute hypoxic - ischemic injury.

On the evaluation today, Izabella has no evidence

of abnormal upper or lower motor neuron

dysfunction. Sh e has no abnormal symptoms of

corticospinal, extrapyramidal, brain stem,

cerebellar or spinal cord dysfunction. There are no

signs of abnormal behavior for her age, and no

signs suggest residual brain dysfunction or

encephalopathy.

Results as of question 1: Does the child suffer from

both a substantial mental impairment and physical

impairment?

Izabella is found to have no evidence of substantial

mental or physical impairment at this time.

Results as of question 2: If so, are both the mental

and physical impairments permanent?

Izabella has no evidence of permanent mental and

physical impairments.

Results of question 3: Are such permanent and

substantial mental and physical impairments

consistent with an injury to the brain or spinal cord

acquired due to oxygen deprivation or mechanical

injury occurring during labor, delivery or the

immediate post - delivery period?

In reviewing all the available documents, the

evolution of her symptoms, the acute EEG and

brain MRI changes, and her acute neonatal

seizures, it is evident that Izabella has an acute

hypoxic event at birth, which resulted in oxygen

deprivation to specific areas of the brain which

were found on her MRI done on day 7 of life. The

changes were described as minimal, involving only

the basal ganglia , with the rest of the brain spared

of any abnormalities.

Results as of question 4: Did the permanent and

substantial mental and physical impairments

themselves occur during labor, delivery or the

immediate post - delivery period (which period

continues unt il the baby is medically stable)?

Izabella does not have substantial mental or

physical impairments that occurred during labor,

delivery, or the immediate post - delivery period.

Considering the clinical presentation, I do feel

there not enough evidence to recommend Izabella

be included in the NICA program.

4. A review of the file in this case reveals that there have been no expert

opinions filed that are contrary to the opinion of Dr. Espinosa that Izabella

did not suffer an injury that meets the definit ion of a birth - related

neurological injury under section 766.302(2). Dr . EspinosaÔs opinion is

credited.

C ONCLUSIONS OF L AW

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

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

6. The Le gislature established the Plan Ñ for the purpose of providing

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

claims Ò relating to births occurrin g on or after January 1, 1989. § 766.303(1),

Fla. Stat.

7. The injured infant, her or his 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. NICA, which administers the Plan, has Ñ 45 days

fro m 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.Ò £ 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 assig ned. § 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 Statutes. §§ 766.304, 766.309,

a nd 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 birt h - related

neurological injury. If the claimant has

d emonstrated, 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 rendered 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,

deliver y, 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 resuscitation in the immediate

postdelivery period i n a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the administrative

law judge concludes that the Ñ infant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician a t birth. Ò § 766.31(1), Fla. Stat.

10. Section 766.302(2) defines t he term Ñ birth - related neurological injury Ò

a s follows:

Ñ Birth - related neurological injury Ò means injury to

the brain or spinal cord of a live infant weighing at

least 2,500 grams for a si ngle 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.

11. To be compensable under the Plan, there must have been an

obstetrical event which resulted in loss of oxygen to the babyÔs brain or spinal

cord i njury 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. Fla. Birth - Related Neurological Inj .

Comp. AssÔn v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

12. The evidence, which the parties do not refute, established that Izabella

did not suffer a birth - related neurological injury under the definition o f

section 766.302(2). Therefore , Izabella is not eligible for benefits under the

Plan.

C ONCLUSION

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

O RDERED that:

The Petition filed by Jasmin Casey, on behalf of Izabella Hewitt, a minor ,

is dism issed with prejudice.

D ONE A ND O RDERED this 18th day of August , 2022 , in Tallahassee, Leon

County, Florida.

S

R OBERT J. T ELFER III

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 18th day of August , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

Consumer Services Unit (eServed)

Department of Health (Certified No. 7021 1970 0000 6508)

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275 Thoma s M. Hoeler, Esquire

(Certified No. 7021 1970 0000 4860 6454) (eServed)

(Certified No. 7021 1970 0000 6515)

Kim Kellum, Esquire

(eServed) Jack Tobias Cook , Esquire

(Certified No. 7021 1970 0000 6461) (eServed)

(Certified No. 7021 1970 0000 6522)

Kathe Alexander , Claims Manager

(eServed) M. Mark Bajalia , Esquire

(Certified No. 7021 1970 0000 6478) (eServed)

(Certified No. 7021 1970 0000 6539)

Rebecca Williamson , Esquire

(eServed) Ascension Sacred Heart Hospital Pensacola

(Certified No. 7021 1970 0000 6485) A ttention: Risk Management

5151 North 9th Avenue

Emilio Antonetti, M.D. Pensacola, Florida 32504

5151 North 9th Avenue (Certified No. 7021 1970 0000 6546)

Pensacola, Florida 32504

(Certified No. 7021 1970 0000 6492)

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 pur suant 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 Admin istrative

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 Neurologi cal Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).