09-003844N Emanuel A. Olivares, A Minor, By And Through His Parents And Natural Guardians, Milagros Olivares And Daniel Alpizar, And Milagros Olivares And Daniel Alpizar, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, July 20, 2010.

Summary: Motion for Summary Final Order granted where definition of compensable injury not met: no oxygen deprivation; no mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMANUEL A. OLIVARES, a minor, )

by and through his parents and )

natural guardians, MILAGROS )

OLIVARES AND DANIEL ALPIZAR, )

AND MILAGROS OLIVARES AND )

DANIEL ALPIZAR, individually, )

)

Petitioners, )

)

vs. ) Case No. 09-3844N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

JERRY GILLES, M.D., AND PUBLIC )

HEALTH TRUST, )

)

Intervenors. )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Renewed Motion for Summary Final Order served May 17, 2010.

STATEMENT OF THE CASE

1. On July 20, 2009, Petitioners Milagros Olivares and

Daniel Alpizar (parents) filed, with the Division of

Administrative Hearings (DOAH), a Petition (claim) on behalf of

their son, Emanuel A. Olivares (a minor), and individually in

their own right, for compensation under the Florida Birth-

Related Neurological Injury Compensation Plan (Plan), for

injuries allegedly associated with Emanuel's birth on March 20,

2005, at Jackson Memorial Hospital.

2. DOAH served the Florida Birth-Related Neurological

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

on July 24, 2009.

3. By an Order entered August 24, 2009, Jerry Gilles,

M.D., was granted status as an Intervenor, and by an Order

entered November 10, 2009, the Public Health Trust was granted

status as an Intervenor. 1

4. On November 19, 2009, following extensions of time in

which to do so, NICA filed its Response to the Petition (Notice

of Non-compensability and Request for Evidentiary Hearing on

Compensability) and gave notice that NICA was of the view that

Emanuel did not suffer "a birth-related neurological injury" as

defined in Section 766.302(2), Florida Statutes. The Response

further requested a hearing be scheduled to resolve the issue of

compensability.

5. On December 3, 2009, NICA filed a Motion for Summary

Final Order, 2 which, by an Order entered February 9, 2010, was

denied without prejudice.

6. Since that time, NICA has deposed its experts,

Donald C. Willis, M.D., and Michael Duchowny, M.D., and

Petitioners have had the opportunity to attend and participate

in those depositions if they chose to do so. 3

7. The deposition transcripts were filed concurrently with

Respondent's Renewed Motion for Summary Final Order on May 21,

2010.

8. Attached to NICA's Renewed Motion for Summary Final

Order were the medical reports and affidavits of medical

physicians Donald C. Willis, M.D., and Michael S. Duchowny,

M.D., referenced in their depositions, as explained in the

endnotes hereto.

9. The predicate for the Renewed Motion for Summary Final

Order is NICA's contention that, indisputably, Emanuel's

problems are not birth-related, in that there was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to the baby's brain during labor, delivery, or the

immediate post-delivery period in the hospital.

10. Donald C. Willis, M.D., is, by education, training,

and experience, qualified as an expert in obstetrics,

gynecology, and maternal-fetal medicine. He examined the

medical records for Emanuel's birth, and opined as follows, via

his report, dated October 8, 2009:

In summary, Caesarean section delivery was

done for failure to progress in labor.

There was no fetal distress during labor.

The baby was not depressed at birth and had

an uncomplicated newborn hospital stay and

discharged home at about 48 hours of life.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the baby's brain during labor,

delivery or the immediate post delivery

period. [4]

11. Dr. Willis also was deposed on April 6, 2010, at which

time, he gave the following opinion within a reasonable degree

of medical certainty:

Q. Now, Dr. Willis, before I ask you

specific detailed opinions, have you formed

an overall opinion as to whether or not

there was an obstetric event that resulted

in the loss of oxygen or a mechanical trauma

to the baby during labor, delivery or the

immediate post-delivery period?

A. Yes, I did evaluate the records for that

and I do not feel that there was any

obstetrical event that resulted in oxygen

deprivation or mechanical trauma to the baby

during labor, delivery or the immediate

post-delivery period. (Willis Deposition,

pgs. 6-7).

12. Michael S. Duchowny, M.D., is, by education, training,

and experience qualified as an expert in pediatric neurology.

Per his medical report of November 4, 2009, adopted in his

deposition of April 27, 2010, 5 he opined:

In SUMMARY, Emanuel's neurological

examination reveals findings consistent with

substantial mental and physical impairment.

Emanuel manifests a spastic quadriparesis

with absence of speech development and non-

ambulation. I reviewed the medical records

sent on September 16, 2009. They reveal

that Emanuel was born without Complication

with Apgar scores of 6, 9 and 9 at 1, 5 and

10 minutes. There were no significant

postnatal complications.

Emanuel's most recent MRI brain scan of the

brain performed at Miami Children's Hospital

on June 5, 2009 was reviewed. This study

demonstrates bilateral signal abnormality in

the basal ganglia with signal

characteristics consistent with

calcification. There is no significant

atrophy or evidence of white matter

abnormalities. These findings are

inconsistent with hypoxic or ischemic brain

damage. The records therefore do not

provide support for Emanuel's neurological

abnormalities being acquired in the course

of labor and delivery nor due to oxygen

depravation [sic] or mechanical injury. I

therefore do not believe that Emanuel is

eligible for compensation under the NICA

statute.

13. Further, at his deposition of April 27, 2010,

Dr. Duchowny provided the following testimony:

A. Yes. Based on both my evaluation of

Emanuel on November 4, 2009, and my review

of the medical records, which had been sent

to me on September 16, 2009, I was of the

opinion that although Emanuel has

substantial mental and motor impairment,

that his impairments were not acquired in

the course of labor and delivery, and they

were not due to either oxygen depravation

[sic] or mechanical injury occurring at

birth.

Q. How about during the post-delivery

period, during the immediate post-delivery

resuscitative period?

A. That would include that as well.

Q. Okay. Were your findings consistent

with, or inconsistent with any type of

hypoxic or ischemic brain damage?

A. I thought that Emanuel's findings were

not consistent with either hypoxic or

ischemic brain damage. (Duchowny Deposition

pgs. 7-8).

and,

* * *

Q. In reaching your opinion, do you feel

that this was a close call, or are you very

clear in your opinion that you're

expressing, that his injuries were not

sustained at all during the course of labor,

delivery or the immediate post-delivery

period?

A. Yeah. I think it's a clear case. I

mean, my heart goes out to Emanuel and his

mother, who is here today. And I'm sorry,

because I know he's very neurologically

impaired. But putting together his

evaluation and the medical records, it's

clear that his injuries were not sustained

during labor or delivery, and were not the

result of oxygen depravation [sic] or

mechanical injury. I think it is very

clear, not a borderline call. (Duchowny

Deposition, pgs. 10-11).

14. Note, Vero Beach Care Center v. Ricks , 476 So. 2d 262,

264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient

to support a finding of causation where the medical condition

involved is not readily observable."); Ackley v. General Parcel

Service , 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The

determination of the cause of a non-observable medical

condition, such as a psychiatric illness, is essentially a

medical question."). Wausau Insurance Company v. Tillman , 765

So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical

conditions which the claimant alleged had resulted from the

workplace incident were not readily observable, he was obligated

to present expert medical evidence establishing that causal

connection.").

15. No party filed any timely response in opposition to

NICA's Renewed Motion for Summary Final Order, as provided for

in Florida Administrative Code Rules 28-106.103 and 28-106.204,

so on June 2, 2010, an Order to Show Cause was entered,

providing:

On May 17, 2010, Respondent served a Renewed

Motion for Summary Final Order. To date,

Petitioners and Intervenors have not

responded to the motion. Fla. Admin. Code

R. 28-106.103 and 28-106.204(4).

Nevertheless, and notwithstanding that they

have been accorded the opportunity to do so,

it is

ORDERED that by June 14, 2010, Petitioners

and Intervenors shall show good cause, in

writing, if any they can, why the relief

requested by Respondent should not be

granted.

16. Intervenors filed no timely response to the Renewed

Motion for Summary Final Order or the June 2, 2010, Order to

Show Cause.

17. On June 11, 2010, Petitioner Milagros Alpizar (mother)

filed a letter wherein she provided a new address and two

telephone numbers for Petitioners. Her letter also related how

difficult it is, and how much more difficult it is becoming, to

care for the child, Emanuel. However, her letter contained no

argument in opposition, or evidence to refute, the pending

Renewed Motion for Summary Final Order and its supporting

materials.

18. Nonetheless, Petitioners' June 11, 2010, letter,

together with the mother's telephone call to the undersigned's

secretary, representing that due to the change of address,

Petitioners had received no papers, pleadings, or orders since

May 1, 2010, resulted in the entry, on June 18, 2010, of an

Order Regarding Service and Order to Show Cause, which read:

This cause came on for consideration upon

Petitioners' notification of a change of

address and telephone number. Albeit

Petitioners have the affirmative obligation

to keep the Division and all parties advised

of any change of their address, it is now

apparent this was not done.

Accordingly, it is ORDERED:

1. Petitioners shall henceforth be served

at the address provided by their

correspondence filed June 11, 2010. ( See

"copies list" below.)

2. By copies attached to this Order,

Petitioners are herewith provided a copy of

Respondent's Renewed Motion for Summary

Final Order filed May 21, 2010, the Order to

Show Cause entered herein on June 2, 2010,

and all other items filed since May 1, 2010.

3. In an abundance of caution, Petitioners

are granted to and until July 5, 2010, in

which to file a response showing cause, in

writing, filed with the Division of

Administrative Hearings, and served upon the

other parties, why Respondent's Renewed

Motion for Summary Final Order should not be

granted.

19. July 5, 2010, was a legal holiday. However, to date

of instant Order, Petitioners have filed no response to the

June 18, 2010, Order Regarding Service and Order to Show Cause.

20. Consequently, neither Petitioners nor Intervenors have

offered evidence, by affidavit or otherwise, to generate a

genuine issue of material fact.

21. Given the record, it is undisputed that Emanuel's

problems most likely were not acquired in the course of labor

and delivery nor are they due to oxygen deprivation or

mechanical injury. Consequently, for reasons appearing more

fully in the Conclusions of Law, NICA's Motion for Summary Final

Order is well-founded. 6

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

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

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

23. 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.

24. 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.

25. 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 766.031, Fla. Stat.

26. 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.

27. 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.

28. Here, indisputably, Emanuel's neurologic problems were

not ". . . caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery, or resuscitation."

Consequently, given the provisions of Section 766.302(2),

Florida Statutes, Emanuel 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).

29. 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 Renewed Motion for Summary Final

Order is granted, and the petition for compensation filed by

Emanuel Olivares, by and through his parents and natural

guardians Milagros Olivares [Alpizar] and Daniel Alpizar, and

Milagros Olivares [Alpizar] and Daniel Alpizar, individually, is

dismissed with prejudice.

DONE AND ORDERED this 20th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 20th day of July, 2010.

ENDNOTES

1/ The Public Health Trust was named in an abated Circuit Court

proceeding, and the Petition herein alleges that the Public

Health Trust owns and operates Jackson Memorial Hospital where

Emanuel was born.

2/ Section 120.57(1), Florida Statutes (2009), 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. A summary final order shall

consist of findings of fact, if any,

conclusions of law, a disposition or

penalty, if applicable, and any other

information required by law to be contained

in the final order.

3/ In fact, Milagros Alpizar (the mother, a/k/a "Milagros

Olivares") attended Dr. Duchowny's deposition.

4/ This report was adopted as Exhibit 2 of Dr. Willis'

deposition ( See Finding of Fact 11).

5/ This November 4, 2009, report was not attached to the copy

of Dr. Duchowny's deposition filed with DOAH but it is adopted

and referred-to in that deposition as "Exhibit 2." A copy of

Dr. Duchowny's November 4, 2009, report was identified and

incorporated as part of his affidavit, filed with NICA's Motion

for Summary Final Order. The report (without affidavit) is

attached to NICA's Renewed Motion for Summary Final Order.

6/ 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." 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. 7010 0290 0001 2352 0277)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7010 0290 0001 2352 0284)

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Espirito Santo Plaza, 14th Floor

1395 Brickell Avenue

Miami, Florida 33131-3302

(Certified Mail No. 7010 0290 0001 2352 0291)

Robert F. Bouchard, Esquire

Fowler, White, Burnett

One Financial Plaza

100 Southeast 3rd Avenue, 11th Floor

Fort Lauderdale, Florida 33394

(Certified Mail No. 7010 0290 0001 2352 0307)

Laura M. Llorente, Esquire

R.A. Cuevas, Jr.

Miami Dade County Attorney

1611 Northwest 12th Avenue

West Wing, Suite 109

Miami, Florida 33136

(Certified Mail No. 7010 0290 0001 2352 0314)

Milagros Olivares Alpizar

Daniel Alpizar

13581 Northwest 4th Street, Apartment 104

Pembroke Pines, Florida 33028

(Certified Mail No. 7010 0290 0001 2352 0321)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7010 0290 0001 2352 0338)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 0290 0001 2352 0345)

Dr. Jeffers

University of Miami

d/b/a University of Miami

School of Medicine

1600 Northwest 10th Avenue

Miami, Florida 33136

(Certified Mail No. 7010 0290 0001 2352 0352)

Dr. Thomas

University of Miami

d/b/a University of Miami

School of Medicine

1600 Northwest 10th Avenue

Miami, Florida 33136

(Certified Mail No. 7010 0290 0001 2352 0269)

Dr. Molina

University of Miami

d/b/a University of Miami

School of Medicine

1600 Northwest 10th Avenue

Miami, Florida 33136

(Certified Mail No. 7010 0290 0001 2352 0376)

Dr. Jelena C. De Carvalho

University of Miami

d/b/a University of Miami

School of Medicine

1600 Northwest 10th Avenue

Miami, Florida 33136

(Certified Mail No. 7010 0290 0001 2352 0383)

Dr. George Latchaw

University of Miami

d/b/a University of Miami

School of Medicine

1600 Northwest 10th Avenue

Miami, Florida 33136

(Certified Mail No. 7010 0290 0001 2352 0390)

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.