22-001347N Brittnay Grant O/B/O Briella Grant, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, July 22, 2022.

Summary: Summary Final Order of Dismissal entered where minor did not suffer a birth-related neurological injury, and, therefore, not entitled to compensation under the Plan.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B RITTNAY G RANT O / B / O B RIELLA G RANT ,

A M INOR ,

Petitioner ,

vs. Case No. 22 - 1347N

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 matter came before the undersigned on RespondentÔs Unopposed

Motion for Summary Final Order (Motion), filed July 14, 2022.

S TATEMENT OF T HE C ASE

On April 25, 2022, Pet itioner filed a Petition , Under Protest, for Benefits

Pursuant to Florida Statute Section 7 6 6.301 et seq . (Petition) , with the

Division of Administrative Hearings (DOAH) , for a determination of

compensability under the Florida Birth - Related Neurological In jury

Compensation Plan (Plan). The Petition named Laura McCurdy, M.D., as the

physician who provided obstetric services for the birth of Briella Grant

(Briella) at Cleveland Clinic Martin Health (Cleveland Clinic) in Port

St. Lucie, Florida, on August 3, 2 021.

On May 5, 2022, DOA H mailed a copy of the Petition to Respondent,

Dr. McCurdy, and Cleveland Clinic via certified mail. Respondent was served

with the Petition on May 5, 2022.

On June 20, 2022, Respondent filed its Response to Petition for Benefi ts

wherein Respondent maintained that the claim was not compensable because

Briella did not sustain a Ñbirth - related neurological injury,Ò as defined by

section 766.302(2), Florida Statutes. Respondent requested that a bifurcated

hearing be scheduled to ad dress the issues of compensability and notice first,

and, if required, to address the amount of an award in a second hearing.

On Jun e 21, 2022, the undersigned issued an Order Requiring Response ,

directing the parties to communicate and advise w hether a hearing would be

required and, if so, provide several mutually agreeable dates in which the

parties were available for hearing . On June 28, 2022, RespondentÔs Status

Report was filed, wherein Respondent advised that Petitioner did not contest

RespondentÔs determination of non - compensability and that Respondent

anticipated filing an unopposed motion for summary final order.

As noted above, RespondentÔs Motion, which is unopposed, was filed on

July 14, 2022.

F INDINGS OF F ACT

1. Briella was born on August 3, 2021, at Cleveland Clinic in Port

St. Lucie, Florida.

2. Briella was a single gestation , and her birth weight exceeded

2,500 grams.

3. As set forth in greater detail below, the unrefuted evidence establishes

that Briella did not sustain a Ñbirth - relat ed neurological injury,Ò as defined

by section 766.302(2).

4. Donald Willis, M.D., a board - certified obstetrician specializing in

maternal - fetal medicine, was retained by Respondent to review the pertinent

medical records of Ms. Grant and Briella and opin e as to whether Briella

sustained an injury to her brain or spinal cord caused by oxygen deprivation

or mechanical injury that occurred during the course of labor, delivery, or

resuscitation in the immediate post - delivery period in a hospital.

5. In his s upporting affidavit, Dr. Willis opines, to a reasonable degree of

medical probability , as follows:

Based on my education, training and experience, it

is my professional opinion, within a reasonable

degree of medical probability, that, there was an

obstetr ical event that resulted in some degree of

oxygen deprivation during labor, delivery and

continuing into the immediate post - delivery period,

however, based on a normal head MRI on day of

life 5, the oxygen deprivation did not appear to

result in any identi fiable brain injury.

6. Respondent also retained Luis E. Bello - Espinosa, M.D., a pediatric

neurologist. Dr. Bello - Espinosa was retained to review the available medical

records and conduct an examination of Briella to determine whether she

suffers from an injury which rendered her permanently and substantially

mentally and physically impaired; and whether such injury is consistent with

an injury caused by oxygen deprivation or mechanical injury occurring during

the course of labor, delivery, or the immedia te post - delivery period in the

hospital.

7. Dr. Bello - Espinosa conducted the examination on June 11, 2022. In his

report following the examination, he issued his findings, which are set forth,

in pertinent part, as follows:

Briella is an Eleven - month - old girl with a history of

perinatal depression due to a hypoxic - ischemic

encephalopathy of birth for which she underwent

therapeutic hypothermia. Briella did not have

seizures. An MRI of the brain obtained on day 5 of

life show normal brain structures. There were no

findings of hypoxic - ischemic injury.

On the evaluation today [sic] is evident that Briella

has a normal neurologic exam for her age. Briella

was found to have no evidence of clinical signs of

abnormal upper or lower motor neuron dysfunction.

She has no abnormal signs of corticospinal,

extrapyramidal, brain stem, cerebellar or spinal

cord dysfunction. There are no signs of abnormal

behavior for her age, and there are no signs to

suggest residual brain dysfunction or

encephalopathy.

8. In his sup porting affidavit, Dr. Bello - Espinosa set forth his medical

opinion as follows:

Based upon my education, training and experience,

it is my profession al opinion, within a reasonable

degree of medical probability, that, based upon my

review of the medical r ecords and examination of

Briella Grant on June 11, 2022, Briella does not

have permanent or substantial mental or physical

impairments related to oxygen deprivation

occurring during labor, delivery or the immediate

post - delivery period.

9. The undispute d and unopposed findings and opinions of Drs. Willis and

Bello - Espinosa are credited. The undersigned finds that Briella did not

sustain an injury to her brain caused by oxygen deprivation occurring in the

course of labor, delivery, or resuscitation in the immediate post - delivery

period in a hospital, which rendered her permanently and substantially

mentally and physically impaired.

C ONCLUSIONS OF L AW

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

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

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

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

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

§ 766. 303(1), Fla. Stat .

1 2 . 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 . Respondent, which administers the Plan, has Ñ45 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.Ò § 766.305(4), Fla.

Stat .

1 3 . If Respondent determines that the injury alleged is a claim that is a

compensable birth - related neurological injury, it may award compensation to

the claimant, provided that the award is appr oved by the administrative law

judge (ALJ) to whom the claim has been assigned. § 766.305(7), Fla. Stat . If,

on the other hand, compensability is disputed, the dispute must be resolved

by the assigned ALJ in accordance with the provisions of chapter 1 20, Florida

Statutes. §§ 766.304 , 766.309 , and 766.31 , Fla. Stat.

1 4 . In its present posture, the ALJ is required to make the following

threshold determination based upon the available evidence:

(a) Whether the injury claimed is a birth - relat ed

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 ren dered 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) .

§ 766.309(1), Fla. Stat .

15 . The term Ñbirth - related n eurological injuryÒ is defined in

section 766.302(2) as follows:

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 a nd substantially

mentally and physically impaired.

16. If the ALJ determines that the injury is not a birth - related

neurological injury, he or she is required to enter an order and immediately

provide a copy to the parties. § 766.309(2), Fla. Stat.

17. T he un disputed and unopposed e vidence establishes that Briella did

not sustain a compensable birth - related neurological injury, as defined in

section 766.302(2), and, therefore, is not eligible for benefits under the Plan.

C ONCLUSION

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

that RespondentÔs Motion is granted , and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 22nd day of July, 2022, in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

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 22 nd 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 5230)

(Certified No. 7021 2720 0000 3800 5216)

Thomas M . Hoeler, Esquire

Kim Kellum, Esquire Agency for Health Care Administration

Agency for Health Care Administrati on 2727 Mahan Drive, Mail Stop 3

2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308

Tallahassee, Florida 32308 (Certified No. 7021 2720 0000 3800 5223)

(Certified No. 7021 2720 0000 3800 5209)

Laura McCurdy, M.D.

Kathe Alexander, Claims Manager 1095 St . Lucie West Boulevard

Florida Birth - Related Neurological Port St . Lucie, Florida 34986

Injury Compensation Association (Certified No. 702 1 2720 0000 3801 0111)

2252 Killearn Center Boulevard

Tallahassee, Florida 32309 Brooke M. Gaffney, Esquire

(Certified No. 7020 2450 0002 1970 6852) Smith, Stout, Bigman & Brock, P.A.

444 Seabreeze Boulevard , Suite 900

Brooke India Charlan, Esquire Daytona Beach, Florida 32118

Jack Tobias Cook, Esquire (Certified No. 7021 2720 0000 3800 5254)

Rebecca Williamson, Esquire

Morgan & Morgan , P.A. Cleveland Clinic Martin Health

20 North Orange Avenue , Suite 1600 Att ention: Risk Management

Orlando, Florida 32801 1095 St . Lucie West Boulevard

(Certified No. 7021 2720 0000 3800 5247) Port St . Lucie, Florida 34986

( Certified No. 7021 2720 0000 3800 5261) (Certified No. 7021 2720 0000 3801 0128)

(Certified No. 7020 2450 0002 1970 7125)

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 sect ion 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

Hea rings 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 Co mp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).