22-001532N Marlene Shauna-Gayle Allen On Behalf Of And As Parent And Natural Guardian Of Romarco Lee Richards, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 6, 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

M ARLENE S HAUNA - G AYLE A LLEN O N

B EHALF OF A ND A S P ARENT A ND

N ATURAL G UARDIAN OF R OMARCO L EE

R ICHARDS , A M INOR ,

Petitioner ,

vs. Case No. 22 - 1532N

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 Motion for

Partial Summary Final Order (Motion), fil ed August 23, 2022; and

PetitionerÔs Response to RespondentÔs Motion, filed September 21, 2022.

S TATEMENT OF T HE C ASE

On May 16, 2022, Petitioner filed a Petition for Benefits Pursuant to

Florida Statute Section 7 6 6.301 et seq . (Petition) with the Divisi on of

Administrative Hearings (DOAH), for a determination of compensability

under the Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named ÑDr. NeoÒ as the physician who provided obstetric

services for the birth of Romarco Lee Richards (Romarco) at Plantation

General Hospital in Plantation, Florida, on March 9, 2020. 1

1 On May 23, 2022, Petitioner filed a supplemental document disclosing Krista Kant, M.D.,

as the obstetrician.

On May 27, 2022, DOA H mailed a copy of the Petition to Respondent,

Dr. Kant, and Plantation General Hospital via certified mail. Respondent

was served with the same on or before June 8, 2022.

After an extension of time to respond to the Petition was granted , on

August 8, 2022, Respondent filed its Response to Petition for Benefits,

wherein it maintains that the claim is not compensable as Romarco did not

su stain a Ñbirth - related neurological injury,Ò as defined in section 766.302,

Florida Statutes.

On August 18, 2022, a telephonic status conference was conducted with all

parties in attendance. On August 23, 2022, RespondentÔs Motion was filed,

wherein Resp ondent requests that a summary final order be entered finding

that the claim is not compensable because Romarco did not sustain a birth -

related neurological injury. Petitioner did not file a timely response to

RespondentÔs Motion.

On September 13, 2022, the undersigned issued an O rder to S how C ause,

wherein Petitioner was order ed to show cause in writing, within seven days

of the date of the O rder, why RespondentÔs Motion should not be granted. On

September 21, 2022, Petitioner filed a handwritten respons e with several

attachments.

F INDINGS OF F ACT

1. Romarco was born on March 9, 2020, at Plantation General Hospital in

Plantation, Florida.

2. Romarco was a single gestation, and his birth weight exceeded 2,500

grams.

3. As set forth in greater detail be low, the evidence establishes that

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

section 766.302(2).

4. William J. Dobak, D.O., an obstetrician specializing in maternal - fetal

medicine, was retained by Respondent to review th e pertinent medical

records of Petitioner, Marlene Shauna - Gayle Allen , and Romarco and opine

as to whether Romarco sustained an injury to his brain or spinal cord caused

by oxygen deprivation or mechanical injury that occurred during the course of

labor, d elivery, or resuscitation in the immediate post - delivery period in a

hospital.

5. In his supporting affidavit, Dr. Dobak opines, to a reasonable degree of

medical probability, as follows:

In summary, delivery was at 38 weeks after

spontaneous rupture of membranes. The baby

delivered spontaneously vaginally and had Apgar

scores of 9/9/9. The newborn hospital course was

uncomplicated and transcranial ultrasound showed

no evidence of subependymal, intraventricular of

[sic] intraparenchymal, hemorrhage.

It is my opinion that there was no obstetric event

that resulted in loss of oxygen to the babyÔs brain

during the hospital stay.

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 Romarco to determine whether he

suffers from an injury which rendered h im 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 immediate post - delivery period in the

hospital.

7. Dr. Bello - Espinosa conducted the examination on August 5, 2022. In his

supporting affidavit, Dr. Bello - Espin osa opines, to a reasonable degree of

medical probability, in pertinent part, as follows:

* * *

6. There were no complications at birth. The

APGAR scores were 9/9/9. There was no

intervention required at birth, the baby was only at

the hospital for two days after birth and received

general neonatal care and his general physical and

neonatal neurological examinations were normal.

Romarco is a 2 year 4 - month - old boy with a normal

uncomplicated pregnancy, birth and post - natal

course. He did not requ ire admission to NICU. He

did not have seizures or evidence of HIE. On the

examination today RomarcoÔs general physical

exam in normal. RomarcoÔs neurological

examination shows no evidence of cortico - spinal,

extra - pyramidal, brainstem or cerebellar

dysfunc tion. He has significant delay with

emergent signs suggestive of autism.

7. Romarco does not suffer from substantial mental

or physical impairments.

8. Romarco has no evidence of any mental or

physical impairments consistent with injury to the

brain or the spinal cord due to oxygen deprivation

or mechanical injury during labor, delivery or the

immediate post - delivery periods.

9. Romarco did not have any permanent

substantial mental or physical impairments due to

injury to the brain or the spinal cord as a result of

oxygen deprivation or mechanical injury during

labor, delivery or the immediate post - delivery

period.

8. Petitioner states in her response that Romarco, at delivery, had a cone -

shaped head (a condition known as plagiocephaly). She further s tates that

Romarco has received a diagnosis of Autism Spectrum Disorder (ASD). In

support of these statements, Petitioner attached several medical letters. One

letter, dated June 7, 2021, from Michael Freimark, M.D., provides that

Romarco is being evaluate d for developmental delay. A second letter, from

Mark Epstein, M.D., a pediatric neurologist, dated May 5, 2022, provides that

Romarco has been diagnosed with ASD and Developmental Language

Disorder. Additional correspondence addresses the need for Behavio r

Analysis Services for RomarcoÔs ASD and related disorders.

9. PetitionerÔs statements and supporting documents, even a ccepted as

true, do not dispute the findings and opinions of Drs. Dobak and

Bello - Espinosa. The undisputed findings and opinions of Drs . Dobak and

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

sustain an injury to his brain caused by oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital, which rendered him

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. Th e 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.

12. The injured i nfant, 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.

St at.

13. 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 approved by the administrative law

judge (ALJ) to whom the c laim 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 120, Florida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. S tat.

14. 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 - related

neurological injury. If the claimant has

demonstrated, to the satisfac tion 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

r ebuttable 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 neurological injuryÒ is defined in section

766.302(2) as follows:

ÑBirth - related ne urological 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 6

deprivation o r 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.

16. If the ALJ determines that th e 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. Section 120.57(1)(h), Florida Statutes, provides , in pertinent part, as

follows:

Any party to a proceeding in which an

administrative law judge has final order authority

may move for a summary final order when there is

no genuine issue as to any material fact. A

summary final order shall be rendered if the

administrative law judge determin es from the

pleadings, depositions, answers to interrogatories,

and admissions on file, together with affidavits, if

any, that no genuine issue as to any material fact

exists and that the moving party is entitled as a

matter of law to the entry of a final order.

1 8 . Here, Respondent established that there is no genuine issue of

material fact concerning whether Romarco sustain ed a compensable birth -

related neurological injury . As noted above, the undersigned finds and

concludes that Romarco did not sustain a birth - related neurological injury,

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 G RANTED , and the Petition is dismissed with

pr ejudice.

D ONE A ND O RDERED this 6th day of October , 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.doa h.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of October , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

(Address of Record) (eServed)

(Certified No. 7021 2720 0000 3801 0579) (Certified No. 7021 2720 0000 3801 0586)

Kim Kellum , Esquire Thomas M. Hoeler, Esquire

(eServed) (eServed)

(Certified No. 7021 2720 0000 3801 0593) (Certified No. 7021 2720 0000 3801 0609)

Kathe Alexander, Claims Manager Marlene Shauna - G ayle Allen

(eServed) (eServed)

(Certified No. 7021 2720 0000 3801 0616) (Certified No. 7021 2720 0000 3801 0623)

David W. Black, Esquire Plantation General Hospital

(eServed) (Address of Record)

(Certified No. 7021 2720 0000 3801 0654) (Certified No. 7021 2720 0000 3801 0647)

Krista Kant , M.D.

(Address of Rec ord)

(Certified No. 7021 2720 0000 3801 0630)

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 Ap peal 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 N eurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).