08-002090N Liban Machado And Leidy Mendez, On Behalf Of And As Parents And Natural Guardians Of Lisyaniel Machado, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 8, 2009.

Summary: Indisputably, the infant`s problems were not birth related and regardless of the cause of his problems he was not substantially physically impaired. The Association`s motion for a summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIBAN MACHADO AND LEIDY MENDEZ, )

ON BEHALF OF AND AS PARENTS AND )

NATURAL GUARDIANS OF LISYANIEL )

MACHADO, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 08-2090N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent, )

)

and )

)

PALMETTO GENERAL HOSPITAL, FEM- )

CARE, P.A., and IGNACIO A. )

RAMIREZ, M.D., )

)

Intervenors. )

)

SUMMARY FINAL ORDER

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

Summary Final Order, served September 19, 2008.

STATEMENT OF THE CASE

1. On April 25, 2008, Liban Machado and Leidy Mendez, on

behalf of, and as parents and natural guardians of Lisyaniel

Machado (Lisyaniel), 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

petition on April 28, 2008, and on August 15, 2008, following an

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

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

that Lisyaniel 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. In

the interim, Palmetto General Hospital, Fem-Care, P.A., and

Ignacio A. Ramirez, M.D., were granted leave to intervene.

3. By Notice of Hearing dated September 5, 2008, a hearing

was scheduled for December 9, 2008, to resolve the issue of

compensability. However, on September 19, 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, Lisyaniel's

impairments were most likely developmentally based, as opposed

to birth-related, and regardless of the etiology of his

problems, Lisyaniel was not substantially physically impaired.

4. Attached to NICA's motion was an affidavit of

Donald Willis, M.D., an obstetrician specializing in maternal-

fetal medicine, who reviewed the medical records related to

Lisyaniel's birth and concluded, within a reasonable degree of

medical probability, that Lisyaniel "did not have oxygen

deprivation or mechanical trauma during labor, delivery or the

immediate post delivery period that would result in brain

damage."

5. Also attached to NICA's motion was an affidavit of

Michael Duchowny, M.D., a pediatric neurologist associated with

Miami Children's Hospital, who evaluated Lisyaniel on July 30,

2008. Based on his evaluation, as well as his review of

Lisyaniel's medical records and those of his mother,

Dr. Duchowny concluded, within a reasonable degree of medical

probability, that Lisyaniel's impairments were likely

developmentally based, as opposed to birth-related, and that

Lisyaniel was not substantially physically impaired.

Dr. Duchowny's observations and conclusions were documented in

his written report, as follows:

PHYSICAL EXAMINATION reveals an alert,

remarkably cooperative, well-developed and

well-nourished 3-year-old boy. The hair is

dark brown and of normal texture. There is

a single pigmented nevus under the hair in

the left parietal scalp. There are no

neurocutaneous stigmata or dysmorphic

features. The head circumference measures

48.5 centimeters which is at the 40th

percentile for age match controls. There

are no cranial or facial anomalies or

asymmetries. The neck is supple without

masses, thyromegaly or adenopathy. The

heart sounds are strong and the lung fields

are clear. The abdomen is soft and

nontender with no palpable abdominal

organomegaly. Peripheral pulses are 2 and

symmetric.

Lisyaniel's NEUROLOGICAL EXAMINATION reveals

him to be alert and fully cooperative with

the examination. He did not speak

spontaneously but did answer several

questions and could articulate a fair number

of words in Spanish. He appropriately

identified pictures of several animals. His

speech sounds are poorly articulated for

lingual and labial consonants. His

attention span appeared appropriate for age

and he maintained a coherent stream of

interaction. Cranial nerve examination

reveals full visual fields to direct

confrontation testing. The pupils are 3 mm

and react briskly to direct and consensually

presented light. Funduscopic examination

revealed sharply demarcated disc margins

without evidence of optic pallor or

retinopathy. There are no significant

facial asymmetries. The tongue and palate

move well. The uvula is midline. The motor

examination revealed symmetric strength,

bulk and tone. There is no evidence of

atrophy or weakness in the proximal shoulder

girdle of either side and there is a full

range of motion. The scapulae appear normal

without evidence of winging. The deltoid,

pectoralis, latissimus and rhomboid

musculature appears normal. There is full

range of motion at all joints and well-

developed individual finger dexterity of

both hands. Lisyaniel is able to build a

tower of 8 cubes without difficulty. He has

a well-developed pincher grasp and uses both

hands cooperatively. The sensory

examination was limited by diminished

cooperation but appeared to be normal with

regard to withdrawal of extremities to

stimulation. Deep tendon reflexes are 2

throughout and both plantar responses are

downgoing. Tests of cerebellar coordination

including finger touching tasks were normal.

Lisyaniel's station and gait were

appropriate for age and there is a symmetric

arm swing. There is no evidence of ataxia.

The spine is straight without dysraphic

features. Neurovascular examination reveals

no cervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Lisyaniel's neurological

examination reveals evidence of

developmental language disorder. There are

no specific focal or lateralizing features

to suggest structural brain damage -

findings consistent with his normal

neuroimaging and EEG evaluations. I believe

that Lisyaniel's major problems center

around mental illness given the occurrence

of visual hallucinations.

I have reviewed medical records sent to me

on May 28, 2008. These records together

with the findings on today's evaluation do

not suggest that Lisyaniel's impairments

result from a neurological injury to the

brain or spinal cord acquired due to oxygen

deprivation or mechanical injury at birth.

Rather, Lisyaniel's problems are more likely

to represent significant mental illness and

the early onset of visual hallucinations is

particularly worrisome. Furthermore,

Lisyaniel does not have a substantial

physical impairment. For these reasons, I

do not believe that Lisyaniel is compensable

under the NICA statute . . . .

6. Neither Petitioners nor Intervenors responded to the

Motion for Summary Final Order. Therefore, on October 2, 2008,

an Order to Show Cause was entered, as follows:

On September 19, 2008, Respondent served a

Motion for Summary Final Order. To date,

neither Petitioners nor Intervenors have

responded to the motion. Fla. Admin. Code

R. 28-106.204(4). Accordingly, it is

ORDERED that by October 16, 2008,

Petitioners and Intervenors show good cause

in writing, if any they can, why the relief

requested by Respondent should not be

granted.

7. Petitioners filed a Response to Order to Show Cause on

October 9, 2008, and requested an extension until November 14,

2008, to respond to the Motion for Summary Final Order. That

response was addressed by Order of October 13, 2008, as follows:

This cause came on to be heard on

Petitioners' Response to Order to Show

Cause, filed October 9, 2008. By this

response, Petitioners request until

November 14, 2008, to reply to the Order to

Show Cause.

Given that Respondent's Motion for Summary

Final Order was served September 19, 2008;

Petitioners did not respond to that motion;

and this case is scheduled for hearing on

December 9, 2008, and has been since

September 5, 2008, on the issue of

compensability, it is

ORDERED that Petitioners are accorded until

October 31, 2008, to file their response to

the Motion for Summary Final Order and the

Order to Show Cause. Thereafter,

Respondent's Motion for Summary Final Order

will be addressed without further delay.

It is further ORDERED that Intervenors are

accorded until October 31, 2008, to file

their response to the Motion for Summary

Final Order and the Order to Show Cause.

Thereafter, Respondent's Motion for Summary

Final Order will be addressed without

further delay.

8. By requests filed October 16, 2008, and October 17,

2008, respectively, Intervenor Palmetto General Hospital and

Intervenors Fem-Care, P.A. and Ignacio A. Ramirez, M.D., also

requested and extension until November 14, 2008, to respond to

the Motion for Summary Final Order. That request was denied by

Order of October 21, 2008, as follows:

This cause came on to be heard on the

Response to Order to Show Cause filed by

Intervenors, Fem-Care, P.A. and Ignacio A.

Ramirez, M.D., on October 17, 2008, whereby

they request an extension of time to respond

to Respondent's Motion for Summary Final

Order, and the Motion for Extension of Time

to File Response to Respondent's Motion for

Summary Final Order, filed by Intervenor

Palmetto General Hospital on October 16,

2008. Notably, by Order of October 13,

2008, Petitioners and Intervenors were

accorded an extension of time until

October 31, 2008, to file their responses to

the Motion for Summary Final Order. Under

the circumstances, and for reasons stated in

that order, it is

ORDERED that Intervenors request for an

extension until November 14, 2008, to

respond to the Motion for Summary Final

Order is denied.

9. Thereafter, on October 28, 2008, and October 30, 2008,

respectively, Intervenor Palmetto General Hospital and

Intervenors Fem-Care, P.A. and Ignacio A. Ramirez, M.D., filed a

Notice of No Opposition to Respondent's Motion for Summary Final

Order. In contrast, on October 30, 2008, Petitioners filed a

Motion for Extension of Time to Respond to Order to Show Cause,

and stated:

The Petitioners, LIBAN MACHADO and LEIDY

MENDEZ, on behalf of and as parents and

natural guardians of LISYANIEL MACHADO, by

and through undersigned counsel, move this

Court for an Order granting an additional 60

days in which to respond to the Order to

Show Cause, and as grounds therefore states

as follows:

1. On October 13, 2008 this Court entered

an order giving the Petitioners until

October 31, 2008 to file an affidavit in

opposition to the Defendant's Motion for

Summary Judgment.

2. Undersigned counsel has advised the

Petitioners that he would be unable to

proceed with this matter any further. In

response, the Petitioners requested

additional time to seek out new counsel.

Assuming the Petitioners are able to retain

new counsel, a substitution of counsel,

would be filed. In the event the

Petitioners are unable to retain new

counsel, they would authorize undersigned

counsel to take a voluntary dismissal.

3. Based upon the above, the Petitioners

are requesting an additional 60 days in

order to allow the Petitioners to find new

counsel.

WHEREFORE, the Petitioners move this Court

for an additional 60 days in which to

respond to the Order to Show Cause.

10. By Order of November 18, 2008, Petitioners request for

an extension of time was approved, as follows:

1. Petitioners' motion is granted, and they

are accorded until December 31, 2008, to

secure new counsel, and file their response

to the Order to Show Cause, or voluntarily

dismiss their claim. Thereafter,

Respondent's Motion for Summary Final Order

will be addressed without further delay.

2. The hearing scheduled for December 9,

2008, is cancelled, and will be rescheduled

at a later date, if necessary.

To date, Petitioners have not complied with the Order of

November 18, 2008. Consequently, Respondent's Motion for

Summary Final Order is addressed without further delay.

11. Given the record, it is undisputed that Lisyaniel's

impairments are developmentally based, as opposed to birth-

related, and regardless of the etiology of his impairments

Lisyaniel is not substantially physically impaired.

Consequently, NICA's Motion for Summary Final Order is well-

founded. 2

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

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

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

13. 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.

14. 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 within five years

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.

15. 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(6), 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.

16. 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.

17. 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.

18. Here, indisputably, Lisyaniel's neurologic problems

were not "caused by an injury to the brain or spinal cord . . .

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or resuscitation" and, regardless

of the etiology of his problems, Lisyaniel is not permanently

and substantially physically impaired. Consequently, given the

provisions of Section 766.302(2), Florida Statutes, Lisyaniel

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.).

19. 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

Liban Machado and Leidy Mendez, on behalf of, and as parents and

natural guardians of Lisyaniel Machado, a minor, be and the same

is dismissed with prejudice.

DONE AND ORDERED this 8th day of January, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of January, 2009.

ENDNOTES

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 . . . .

2/ 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 that 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." Turner Produce Company, Inc. v. Lake Shore

Growers Cooperative Association , 217 So. 2d 856, 861 (Fla. 4th

DCA 1969). Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d

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

1980).

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 7731)

Octavio L. Martinez, Esquire

Octavio L. Martinez, P.A.

9595 North Kendall Drive, Suite 200

Miami, Florida 33176

(Certified Mail No. 7005 1820 0002 9840 7748)

William F. Fink, Esquire

Wicker, Smith, O'Hara, McCoy,

Graham & Ford, P.A.

Grove Plaza, Fifth Floor

2900 Southwest 28th Terrace

Miami, Florida 33133

(Certified Mail No. 7005 1820 0002 9840 7755)

Maria Vidakis, Esquire

Stephens, Lynn, Klein, Lacava, Hoffman, and Puya, P.A.

Two Datran Center- Penthouse 2

9130 South Dadeland Boulevard

Miami, Florida 33156

(Certified Mail No. 7005 1820 0002 9840 8424)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7007 2980 0000 9309 0946)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7005 1820 0002 9840 5690)

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.