07-005675N Yobany E. Rodriguez-Camacho And Manuel E. Alcala, On Behalf Of And As Parents And Natural Guardians Of Valeria Alcala, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, July 22, 2008.

Summary: Indisputably, infant was not substantially mentally and physically impaired. Consequently, Association`s Motion for Summary Final Order of Dismissal was granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YOBANY E. RODRIGUEZ-CAMACHO AND )

MANUEL E. ALCALA, ON BEHALF OF )

AND AS PARENTS AND NATURAL )

GUARDIANS OF VALERIA ALCALA, A )

MINOR, )

)

Petitioners, )

)

vs. ) Case No. 07-5675N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

UNIVERSITY OF MIAMI, d/b/a )

MILLER SCHOOL OF MEDICINE and )

PUBLIC HEALTH TRUST OF DADE )

COUNTY, )

)

Intervenors. )

)

FINAL SUMMARY ORDER

This cause came on to be heard on Respondent's Motion for

Summary Final Order, filed April 14, 2008.

STATEMENT OF THE CASE

1. On November 5, 2007, Petitioner, Yobany E. Rodriguez-

Camacho and Manuel E. Alcala, on behalf of and as parents and

natural guardians of Valeria Alcala (Valeria), a minor, filed a

petition (claim) with the Division of Administrative Hearings

(DOAH) for compensation under the Florida Birth-Related

Neurological Injury Compensation Plan (Plan).

2. DOAH served the Florida Birth-Related Neurological

Injury Compensation Association (NICA) with a copy of the claim

on November 14, 2008, and on March 19, 2008, following a number

of extensions of time within which to do so, NICA served its

response to the petition and gave notice that it was of the view

that Valeria did not suffer a "birth-related neurological

injury," as defined by Section 766.302(2), Florida Statutes, and

requested that a hearing be scheduled to resolve the issue.

3. By Notice of Hearing dated March 28, 2008, a hearing

was scheduled for August 13, 2008, to resolve the issue of

compensability. In the interim, on April 10, 2008, NICA served

a Motion for Summary Final Order, pursuant to Section

120.57(1)(h), Florida Statutes. 1 The predicate for the motion

was NICA's contention that, indisputably, Valeria was neither

permanently and substantially mentally nor permanently and

substantially physically impaired.

4. Attached to NICA's Motion for Summary Final Order was

an affidavit of Michael Duchowny, M.D., a pediatric neurologist

associated with Miami Children's Hospital, who evaluated Valeria

on February 27, 2008. Based on that evaluation, and review of

the medical records, Dr. Duchowny concluded, within a reasonable

degree of medical probability, that Valeria was neither

permanently and substantially mentally nor permanently and

substantially physically impaired. Dr. Duchowny's observations

and conclusions were documented in his written report of

February 27, 2008, as follows:

I evaluated Valeria Alcala on February 27,

2008. Valeria was accompanied by her mother

who is fluent only in Spanish. A history

was obtained via an interpreter.

HISTORY BY MRS. YOVANIY RODRIGUEZ, VALERIA'S

MOTHER: Mrs. Rodriguez began by explaining

that Valeria was "born with a brain

hemorrhage." She was delivered at 38 weeks

gestation at Jackson Memorial Hospital and

weighed 7 pounds 9 ounces. She was

delivered vaginally and had "problems

breathing at birth." Valeria remained in

hospital for "over a week." She "was at

risk for having seizures" and placed on

phenobarbital. The phenobarbital was

discontinued on discharge.

PRE- AND PERINATAL HISTORY: Valeria

subsequently did well. A review of her

early growth and developmental parameters

was within the normal range. She rolled

over at three months, sat at seven months,

stood at nine months, and walked at one year

of age. She began speaking single words at

age one year. She is not yet toilet

trained. Valeria is presently on no

medications and is followed by Dr. Lopez at

Jackson Memorial Hospital. Her mother has

no concerns with regard to Valeria's

neurological status. Her speech and hearing

are good and she is very sociable. Her

behavior is normal.

Valeria is followed by nephrology for a

"small left kidney." She has intermittent

problems urinating. Apparently, Valeria has

nephrocalcinosis and was on a special

enriched formula.

Valeria's MRI scan of the brain revealed "a

scar." She has had five EEGs.

FAMILY HISTORY: The father is 48 years old

and the mother is 41 years old. They are

married. There is a half-brother age 23 and

two half-sisters ages 20 and 18. There is

no family history of epilepsy, mental

retardation, or neurodegenerative illnesses.

PHYSICAL EXAMINATION today reveals an alert,

cooperative, well-developed and well-

nourished 2 1/2-year-old girl. Valeria

weighs 31 pounds. The skin is warm and

moist. There are no neurocutaneous stigmata

or dysmorphic features. The head

circumference measures 29.2 centimeters

which is at the 75th percentile for age

match controls. There is a slight

suggestion of frontal bossing but this does

not appear clinically significant. There

are no facial anomalies or asymmetries. The

neck is supple without masses, thyromegaly

or adenopathy. There is no spinal

dysraphism. The lung fields are clear. The

heart sounds are normal. The abdomen is

soft and nontender. There is no palpable

abdominal organomegaly. Peripheral pulses

are 2 and symmetric.

Valeria's NEUROLOGICAL EXAMINATION likewise

discloses no significant findings. She is

alert and cooperative with fluent speech.

She maintains an age appropriate stream of

attention and is easily socially engaged.

She is quite playful and cooperates fully

with the examination. Cranial nerve

examination reveals full visual fiends to

direct confrontation testing. The

extraocular movements are full and

conjugate. Funduscopic examination reveals

sharply demarcated disc margins without

pallor or retinal findings. The pupils are

3 mm and react briskly to direct and

consensually presented light. There are no

facial anomalies or asymmetries. The

pharyngeal folds are symmetric and the uvula

is midline. The tongue protrudes without

difficulty. Motor examination reveals

symmetric strength, bulk and tone. There

are no adventitious movements, focal

weakness or atrophy. Sensory examination is

intact to withdrawal of all extremities to

stimulation. Valeria is able to hold her

outstretched hands in a stable posture. The

neurovascular examination reveals no

cervical, cranial or ocular bruits and no

pulse asymmetries. The gait is stable.

In SUMMARY, Valeria's neurological

examination reveals no specific focal or

lateralizing findings and there are no

findings to suggest structural brain damage.

I have had an opportunity to review

Valeria's medical records mailed to me on

January 23, 2008. The examination today

together with the medical records review

does not suggest that Valeria is suffering

from either a permanent or substantial

mental or physical impairment. I therefore

do not regard her as compensable under the

NICA statute.

Dr. Duchowny's affidavit summarized his conclusions, as follows:

5. In summary, it is my opinion that

VALERIA's neurological examination reveals

no specific focal or lateralizing findings

and there are no findings to suggest

structural brain damage. I have had an

opportunity to review Valeria's medical

records mailed to me on January 23, 2008.

The examination today together with the

medical record review does not suggest that

Valeria is suffering from either a permanent

or substantial mental or physical

impairment.

6. As such, it is my opinion that

Valeria Alcala is not permanently and

substantially mentally impaired nor is she

permanently and substantially physically

impaired due to oxygen deprivation or

mechanical injury occurring during the

course of labor, delivery or the immediate

post-delivery period in the hospital during

the birth of VALERIA ALCALA.

5. Petitioners did not respond to the Motion for Summary

Final Order. However, on April 22, 2008, the University of

Miami filed a Petition for Leave to Intervene and Motion to

Defer Ruling on Florida Birth-Related Neurological Injury

Compensation Association's Motion for Summary Final Order, and

on April 29, 2008, the Public Health Trust filed a Petition for

Leave to Intervene. These matters were addressed by Order of

May 6, 2008, as follows:

1. The requests for leave to intervene

filed on behalf of the University of Miami

and the Public Health Trust are granted.

2. The University of Miami's Motion to

Defer Ruling on NICA's Motion for Summary

Final Order is granted, and ruling is

deferred until June 30, 2008.

3. All parties are granted leave to conduct

discovery without further request for leave

to do so.

4. All parties are accorded until June 30,

2008, to file a response to NICA's Motion

for Summary Final Order. Thereafter, NICA's

motion will be addressed without further

delay.

6. The University of Miami undertook discovery, and on

June 16, 2008, filed a Motion to Compel Better Answers to Expert

Witness Interrogatories, and on June 19, 2008, Petitioners filed

their response to such motion, as well as a Motion for Leave to

Amend Response to Request for Admissions or, in the alternative,

Motion to Amend Petition. These matters were addressed by Order

of June 25, 2008.

1. Petitioners' Motion for Leave to Amend

Responses to Request for Admissions is

granted, and Petitioners are accorded to and

including July 30, 2008, to amend their

responses to Request for Admissions 1-22,

propounded to them May 12, 2008.

2. Petitioners' Motion to Amend Petition is

granted, and Petitioners are accorded to and

including July 30, 2008, to amend their

petition.

3. In light of the foregoing, the

University of Miami's Motion to Compel

Better Answers to Expert Witness

Interrogatories is denied, without

prejudice.

4. Ruling on Respondent's Motion for

Summary Final Order is deferred until

July 15, 2008.

5. All parties are accorded until July 15,

2008, to file a response to Respondent's

Motion for Summary Final Order. Thereafter,

Respondent's Motion will be addressed

without further delay.

7. On June 27, 2008, Petitioners filed their Amended

Responses to Request for Admissions, and a Petition for

Determination of Non-Eligibility, or in the alternative, Amended

Petition for Benefits. Thereafter, on July 15, 2008,

Intervernor, University of Miami, filed its response to NICA's

Motion for Summary Final Order, and stated:

4. On June 16, 2008, Dr. Duchowny's

deposition was taken, wherein he reiterated

his opinion that VALERIA did not suffer any

substantial or permanent mental or physical

impairment. Dr. Duchowny testified that,

during his physical examination of the

child, VALERIA was alert, cooperative, and

that her speech and attention span were

appropriate for her age. Further,

Dr. Duchowny noted that VALERIA had fluent

speech, was socially engaged, had full

visual fields and had appropriate language

development. All of those signs led

Dr. Duchowny to conclude that she has

developed normally and appropriately for her

age of 2 1/2 years. A neurological exam

noted that her bilateral extremity function

is even and normal. He also noted that

VALERIA has no dysmorphic features and, in

fact, had no physical anomalies whatsoever.

Dr. Duchowny concluded that her physical

examination was normal. Dr. Duchowny

stated, however, that a neuro-psychological

evaluation is likely the best quantitative

measure of neurological function, but that

one must wait until a child is at a minimum

of 6 years of age before the prospective

validity of neuro-psychological testing

comes to fruition. He cautioned that he can

only opine that VALERIA is a normal 2 1/2

year old, but cannot make concrete

predictions for the future.

Notably, Intervenor did not file Dr. Duchowny's deposition or

other evidence in response to NICA's Motion for Summary Final

Order.

8. Given the record, it is indisputable that Valeria is

neither permanently and substantially mentally impaired nor

permanently and substantially physically impaired. Turner

Produce Company, Inc. v. Lake Shore Growers Cooperative

Association , 217 So. 2d 856, 861 (Fla. 4th DCA 1969)("When, as

here, the "moving party presents evidence to support the claimed

non-existence of a material issue, he . . . [is] entitled to a

summary judgment unless the opposing party comes forward with

some evidence which will change the result; that is, evidence to

generate an issue of a material fact. It is not sufficient for

an opposing party merely to assert that an issue does exist.").

Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d DCA 1980);

Perry v. Langstaff , 383 So. 2d 1104 (Fla. 5th DCA 1980).

Therefore, for reasons appearing more fully in the Conclusions

of Law, NICA's Motion for Summary Final Order is well-founded.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. § 766.301, et seq ., Fla. Stat.

10. The Florida Birth-Related Neurological Injury

Compensation Plan was established by the Legislature "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. § 766.303(1), Fla. Stat.

11. 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 the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), 766.305(1), and 766.313, Fla. Stat. The Florida

Birth-Related Neurological Injury Compensation Association,

which administers the 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(3), Fla. Stat.

12. 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. § 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, and 766.31, Fla. Stat.

13. 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 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, delivery, or

resuscitation in the immediate post-delivery

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 post-delivery

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.

14. Pertinent to this case, "birth-related neurological

injury" is defined by Section 766.302(2), to mean:

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

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

15. Here, indisputably, Valeria is not permanently and

substantially mentally and physically impaired. Consequently,

given the provisions of Section 766.302(2), Florida Statutes,

Valeria does not qualify for coverage under the Plan. See also

Humana of Florida, Inc. v. McKaughan , 652 So. 2d 852, 859 (Fla.

2d DCA 1995)("[B]ecause the Plan . . . is a statutory substitute

for common law rights and liabilities, it should be strictly

construed to include only those subjects clearly embraced within

its terms."), approved , Florida Birth-Related Neurological

Injury Compensation Association v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996); Florida Birth-Related Neurological Injury

Compensation Association v. Florida Division of Administrative

Hearings , 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the

conjunctive and can only be interpreted to require both

substantial mental and substantial physical impairment.).

16. Where, as here, the administrative law judge

determines that ". . . the injury alleged is not a birth-related

neurological injury . . . he [is required to] enter an order [to

such effect] and . . . cause a copy of such order to be sent

immediately to the parties by registered or certified mail."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the foregoing Statement of the Case and

Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the petition for compensation filed by Yobany E.

Rodriguez-Camacho and Manual E. Alcala, on behalf of and as

parents and natural guardians of Valeria Alcala, a minor, be and

the same is dismissed with prejudice.

It is further ORDERED that the hearing scheduled for

August 13, 2008, is cancelled.

DONE AND ORDERED this 22nd day of July, 2008, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of July, 2008.

ENDNOTE

1/ Section 120.57(1)(h), Florida Statutes, provides:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings 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

determines 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 . . . .

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 8912)

Andrew Needle, Esquire

Needle, Gallagher & Ellenberg, P.A.

1401 Brickell Avenue, Suite 900

Miami, Florida 33131

(Certified Mail No. 7005 1820 0002 9840 8929)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7005 1820 0002 9840 8936)

Stephen A. Stieglitz, Esquire

Miami-Dade County Attorney

Metro-Dade Center

111 Northwest First Street, Suite 2800

Miami, Florida 33124-1993

(Certified Mail No. 7005 1820 0002 9840 8943)

James D. DeChurch, Esquire

Fowler, White, Burnett, P.A.

Espirito Santo Plaza, 14th Floor

1395 Brickell Avenue

Miami, Florida 33131-3302

(Certified Mail No. 7007 2680 0000 9309 0755)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7007 2680 0000 9309 0762)

Jackson Memorial Hospital

1611 Northwest 12th Avenue

Miami, Florida 33168

(Certified Mail No. 7007 2680 0000 9309 0779)

Francisco Cruz, M.D.

9240 Sunset Drive, Suite 241

Miami, Florida 33173

(Certified Mail No. 7007 2680 0000 9309 0786)

Dr. Dana Schey

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 7007 2680 0000 9309 0793)

Seymour Thomas, M.D.

1408 Southwest 77th Street

Miami, Florida 33193

(Certified Mail No. 7007 2680 0000 9309 0267)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk of

the Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

Birth-Related Neurological Injury Compensation Association v.

Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.