09-006867N Melissa Gutierrez And Francisco Santiago, On Behalf Of And As Parents And Natural Guardians Of Isaiah Santiago, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, September 10, 2010.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA GUTIERREZ AND FRANCISCO ) )

SANTIAGO, on behalf of and as )

parents and natural guardians )

of ISAIAH SANTIAGO, a minor, )

Petitioners, )

)

vs. ) Case No. 09-6867N

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

Respondent, )

)

and )

)

ADVENTIST HEALTHCARE )

SYSTEMS/SUNBELT, INC., d/b/a )

FLORIDA HOSPITAL CELEBRATION, )

Intervenor. )

)

)

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Plaintiffs Motion

for Summary Final Judgment Regarding NICA Compensability [sic],

filed May 31, 2010, and Respondent's Motion for Summary Final

Order, served and filed June 1, 2010.

STATEMENT OF THE CASE

1. On December 17, 2009, Melissa Gutierrez and

Francisco Santiago, as parents and natural guardians of

Isaiah Santiago, 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), for injuries allegedly associated with Isaiah's

birth on July 15, 2007.

2. DOAH served the Florida Birth-Related Neurological

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

on December 22, 2009, and served Florida Hospital Celebration

and David Marcantel, M.D., each on December 21, 2009. These are

the only hospital and/or medical personnel named in the Petition

as present at, or associated with, Isaiah's birth. Because of

ambiguities in the return of service from Dr. Marcantel, he was

served once again as of February 24, 2010. Only Adventist

Healthcare Systems/Sunbelt, Inc., d/b/a Florida Hospital

Celebration moved to intervene, and its intervention was

authorized by an Order entered May 24, 2010.

3. On March 17, 2010, following several extensions of time

in which to do so, Respondent NICA served its Response to the

Petition and gave notice that it was of the view that Isaiah did

not suffer a "birth-related neurological injury" as defined in

Section 766.302(2), Florida Statutes, which renders an infant

"permanently and substantially impaired," per Section

766.302(3), Florida Statutes. NICA's Response requested that a

hearing be scheduled to resolve the issue of compensability.

Such a hearing was scheduled for August 11, 2010, but has since

been cancelled.

4. On May 28, 2010, Petitioners served their Motion for

Summary Judgment Regarding NICA Compensability, 1 and on June 1,

2010, Respondent served its Motion for Summary Final Order, 2

attaching as support, the affidavit and medical report of

Donald C. Willis, M.D., and reciting that Petitioners did not

oppose the motion.

5. Within the time period provided by Florida

Administrative Code Rules 28-106.103 and 28-106.204, Intervenor

served, on June 7, 2010, a Motion for Extension of Time Within

Which to Respond to the Petitioners' Motion for Summary Judgment

Regarding NICA Compensability. A case management conference was

held on August 5, 2010, and an Order, entered August 6, 2010,

established a schedule for further discovery and trial

preparation, and granted additional time for consideration of

the pending motions.

6. On August 12, 2010, Respondent NICA filed the report of

Michael R. Duchowny, M.D., dated July 21, 2010. On September 1,

2010, Respondent filed an affidavit by Dr. Duchowny adopting

Dr. Duchowny's July 21, 2010 report. 3

7. On August 24, 2010, Intervenor filed a Notice

Concerning the Expert Report of Dr. Duchowny and Summary Order

Disposition, whereby Intervenor stated, in pertinent part,

"Florida Hospital hereby provides notice that . . . although it

does not voluntarily concede the result, [it] will not object to

the Court proceeding with summary final disposition of this

matter as the Court deems proper."

8. Dr. Duchowny is a Florida-licensed medical physician,

Director of the EEG Laboratories and Seizure Unit at the

University of Miami School of Medicine, and a clinical professor

of neurology in pediatric neurology. He is also board-certified

in pediatrics, psychology and neurology with a special

competence in child neurology, electroencephalography and

clinical neurosurgery.

9. Dr. Duchowny's Affidavit supports the pending motions

for summary final order as follows:

It is my opinion within a reasonable degree

of medical probability that:

Isaiah's NEUROLOGICAL EXAMINATION reveals

him to be alert, cooperative with fluent

speech. He does have prominent labial

dysarthria with a hypernasal speech pattern.

He is somewhat overactive and inattentive.

He does answer questions directly and can

identify some colors and pictures of

animals. He identified body parts quite

well. The 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. A brief funduscopic examination

demonstrates well-demarcated optic disc

margins without retinopathy. The

extraocular movements are full and

conjugate. There are no facial asymmetries.

The tongue is midline and moves in all

planes. The uvula is midline. The

pharyngeal folds are symmetric. Motor

examination reveals evidence of an asymmetry

of the upper extremity. The rights [sic]

shoulder appears higher than the left and

there is prominent scapular winging. There

is hollowing of the mesial scapular border.

There is no atrophy of the biceps or

brachial radialis musculature. Isaiah is

able to extend both arms but cannot fully

extend the right elbow to 180 degrees.

Similarly, he can raise both arms above his

head but does not have full elbow extension.

Supination is clearly diminished on the

right side, although he does have individual

finger movement and his grip strength is

fairly symmetric. There is full ROM at the

wrist and finger joints. There is no

demonstrable sensory abnormality. There are

no fasciculations or focal atrophy. Deep

tendon reflexes are 1 in the left upper

extremity but 0 at the biceps and brachial

radialis on the righticeps reflex is

trace on the right. Knee and ankle jerks

are 2 and both plantar responses are

downgoing. Isaiah walked in a coordinated

fashion and his arm swing was relatively

symmetric. He could build a tower of six

cubes and had individual finger dexterity

which was superior on the left compared to

the right. He also demonstrated a clear

left hand preference but would work with the

right hand when prompted. He transferred

well. Isaiah could stand from a sitting

position with good balance without holding

on. Neurovascular examination reveals no

cervical, cranial or ocular bruits and no

temperature or pulse asymmetries.

In SUMMARY, Isaiah's neurological

examination today is significant for

findings of a right Erb's palsy suggesting

compromise of the upper brachial plexus [4]

including C5 and C6 distributions. In

contrast, there is no evidence of central

nervous system damage of either the brain or

spinal cord; and for this reason, I do not

believe that Isaiah is eligible for

compensation within the NICA program.

10. Dr. Duchowny's affidavit adopts and incorporates his

four-page July 21, 2010 Independent Medical Examination Report.

11. Donald C. Willis, M.D., is a Florida-licensed medical

doctor who is board-certified in obstetrics and gynecology and

maternal-fetal medicine. His affidavit, attached to

Respondent's Motion for Summary Final Order, states that he

reviewed the medical records of Isaiah Santiago; that on

February 15, 2010, he prepared the one-page report attached to

the affidavit; and that the report accurately reflects his

opinions.

12. Dr. Willis' affidavit goes on to state that, within

reasonable medical probability,

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. The baby did suffer a right

brachial plexus injury at birth.

13. Dr. Willis' report, adopted by his affidavit, states,

in pertinent part:

. . . Overall there was no significant

fetal distress. Amniotic fluid is clear

with rupture of the membranes during labor.

. . . The newborn was not depressed. Apgar

scores were 7/8. A right brachial plexus

injury occurred at birth. . . . 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.

14. Given the record, Petitioners' and Respondent's

concurrence, and the absence of any opposition from the sole

Intervenor, it is undisputed that Santiago's problems do not

result from a loss of oxygen or mechanical trauma to the baby's

brain or spinal cord during labor, delivery or resuscitation in

the immediate post-delivery period in a hospital. Consequently,

for reasons appearing more fully in the Conclusions of Law,

NICA's Motion for Summary Final Order is well-founded. 5

15. In light of there being no dispute on the issue of

non-compensability, it is not necessary for this Summary Final

Order to address any issue of notice.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

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

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

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. Here, indisputably, Isaiah'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." Consequently,

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

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

Humana of Fla., 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 , Fla. Birth-Related Neurological Injury

Comp. Ass'n v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

23. Where, as here, the administrative law judge

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

neurological injury . . . she or he shall enter an order [to

such effect] and shall 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 Florida Birth-Related Neurological

Injury Compensation Association's Motion for Summary Final Order

is granted, and the Petition for Compensation filed by

Melissa Gutierrez and Francisco Santiago, on behalf of and as

parents of Isaiah Santiago, a minor, be and the same is

dismissed with prejudice.

DONE AND ORDERED this 10th day of September, 2010, in

Tallahassee, Leon County, Florida.

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 10th day of September, 2010.

ENDNOTES

1/ This pleading was later supplemented and has been treated as

a motion for summary final order. A medical report of Ronald G.

Davis, M.D., was filed June 22, 2010, in support thereof, but

without affidavit. Due to dismissal upon Respondent's Motion

for Summary Final Order, this pleading need not be addressed.

2/ Section 120.57(1)(h), Florida Statutes (2008), 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/ See , e.g. , Vero Beach Care Center v. Ricks , 476 So. 2d 262,

264 (Fla. 1st DCA 1985)("Lay testimony is legally insufficient

to support a finding of causation where the medical condition

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

Services , 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.").

4/ A brachial plexus injury is defined in the 28th Edition of

Dorland's Illustrated Medical Dictionary © 1994, as: plexus : a

network or tangle; a general term for a network of lymphatic

vessels, nerves or veins. Brachial plexus : a plexus

originating from the ventral branches of the last four cervical

spinal nerves and most of the ventral branch of the first

thoracic spinal nerves. Situated partly in the neck and partly

in the axilla . . . .

5/ 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

:

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 0857)

Maria D. Tejedor, Esquire

Diez-Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7010 0290 0001 2352 0864)

Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A.

Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7010 0290 0001 2352 0871)

Charles Thomas Shad, Esquire

Saalfield, Shad, Jay & Stokes

50 North Laura Street, Suite 2950

Jacksonville, Florida 32202

(Certified Mail No. 7010 0290 0001 2352 0888)

David A. Marcantel, M.D.

Celebration Obstetrics & Gynecology

410 Celebration Place, Suite 208

Celebration, Florida 34747

(Certified Mail No. 7010 0290 0001 2352 0895)

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 0901)

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 0918)

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.