10-008476N Alva Nazario-Bautista And Martin Ayala, On Behalf Of And As Parents And Natural Guardians Of Rafael Ayala, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, August 25, 2011.

Summary: Claims against NICA barred by statute of limitations; parties entitled to determination of compensability; if infant is not permanently and substantially mentally impaired, definition of compensable injury not met. Motion for Summary Final Order granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALVA NAZARIO - BAUTISTA AND )

MARTIN AYALA, on behalf of and )

as parents and natural )

guardians of RAFAEL AYALA, a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 10 - 8476N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSO CIATION , )

)

Respondent, )

)

and )

)

WINTER HAVEN HOSPITAL, INC., )

d/b/a WINTER HAVEN HOSPITAL, )

AND REGENCY MEDICAL CENTER; )

VINCENT GATTO, M.D.; EVA J. )

SALAMON, M.D.; MEGHAN GARLAND, )

CNM; SUSAN WESTMAN, CNM; BOND )

CLINIC, P.A.; MARIA KONG, )

M.D.; AND PEDIATRIX ME DICAL )

GROUP OF FLORIDA, INC., )

)

Intervenors . )

______________________________ )

SUMMARY FINAL ORDER OF DISMISSAL WITH PREJUDICE

This cause came on for considerati on of Respondent's Motion

for Summary Final Order served April 1, 2011 .

A plethora of motions have been filed and addressed by

timely orders , but e ffort has been made herein to discuss only

motions and orders related to the Motion for Summary Final

Order.

STATEMENT OF THE CASE

1. On August 27 , 2010, Alva Nazario - Bautista (mother) on

behalf of and as parent and natural guardian of Rafael Ayala, 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 Rafael's birth on

June 27, 2003. The Plan is represented by the Florida Birth -

Related Neurological Injury Compensation Association (NICA).

2 . The seminal statute requires both that a claim/petition

against the Plan be filed with DOAH within five years of the

child's birth ( see s ection 766.313 , Florida Statutes ), and that

no civil action may be brought until the determinations under

s ection 766.309 have been made by DOAH's independent

Administrative Law Judge (ALJ). See § 766.304 , Fla. Stat. 1/

3 . DOAH served NICA with a copy of the claim on

September 1, 2010; served Winter Haven Hospital, Inc., d/b/a

Regency Medical Center on September 2, 2010; and served Vincent

Gatto, M.D., on September 15, 2010. These are the only hospital

and/or medical personnel named by the petition as present at, or

associated with, Rafael's birth.

4 . Upon their respective motion s, an Order permitting

intervention by Wint er Haven Hospital, Inc., d/b/a Winter Haven

Hospital and Regency Medical Center (hereafter "Winter Have n

Hospital, Inc.") , was entered on October 7, 2010; an Order

permitting intervention by Vincent Gatto, M.D.; Eva J. Salamon,

M.D.; Meghan Garland, CNM; S usan Westman , CNM ; and Bond Clinic,

P.A., was entered on June 1, 2011; and an Order permitting

intervention by Maria Kong, M.D., and Pediatrix Medical Group of

Florida, Inc. (PMGF), was entered on June 15, 2011 . Dr. Gatto

et al . , and Dr. Kong and PMGF did not move to intervene until

well after the filing of the Motion for Summary Final Order.

Dr. Kong and P MGF were not named in the original or amended

petitions and accordingly DOAH was not required by section

766.305 to serve them with a copy of the petit ion/claim and did

not serve them. ( See p aragraphs 3 , and 13 - 14 of this Order ) .

5 . NICA's Motion for Summary Final Order , 2/ served April 1,

2011 , and filed April 6, 2011, asserts that the petition/claim

is barred by the section 766.313, five years ' statut e of

limitations , and that Rafael's injuries do not meet the

definition of a "birth - related neurological injury" as defined

in s ection 766.302(2) and (7).

6 . On March 28, 2011, Petitioner filed a M otion for L eave

to A mend P etition for the purpose of reque sting attorney's fees

and costs. The amendment would not affect the Motion for

Summary Final Order.

7 . On April 12, 2011, an Order on Pending Motions was

entered. It provided , in pertinent part:

This cause came on for consideration of all

pending mot ions by telephonic conference

call on April 11, 2011. All parties were

heard, and upon consideration, it is

ORDERED:

* * *

3. Petitioner's Motion for Leave to Amend

Petition [to include a prayer for attorney's

fees and costs] was unopposed and is

g ranted. This cause shall proceed upon the

Amended Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq.,

filed simultaneously with the aforesaid

motion. This Amended Petition, as well as

the original, is barred as against NICA by

the statute of limitations (section 766.313)

which ruling will be incorporated in the

final order herein.

4. Respondent NICA acknowledged it now

deems the Petition (and necessary

accompanying documentation of medical

records) to be complete, and all parties

stipulated that NICA's Motion for Summary

Final Order may be considered as NICA's

mandatory Response, provided - for by section

766.305(4), Florida Statutes.

5. Respondent's Motion for Summary Final

Order, served April 1, 2011, is taken under

advisement, pending the filing of responses

by Petitioner and Intervenor . [3/] (Petitioner

presented oral argument opposing [entry of

an order of] dismissal solely upon the terms

of section 766.313, Florida Statutes .)

6. Petitioner's Renewed Motion to Set Final

Hea ring has been considered, with input as

to all parties' trial schedules,

consideration of the pending Motion for

Summary Final Order, and the remaining need

for discovery, and is granted in part and

denied in part as follows: Final hearing

will be schedul ed for July 11, 2011, by

separate notice and order of prehearing

instructions . ( e mphasis added ).

8 . A fter the telephon ic hearing on April 11, 2011 ,

Intervenor Winter Haven Hospital , Inc., filed a Motion for

Extension of Time to Respond to NICA's Motion for Summary Final

Order , seeking an extension to June 10, 2011, in which to

respond to the Motion for Summary Final Order , and on April 14,

2011, an Order was entered granting Petitioner and Intervenor

(then only Winter Haven Hospital, Inc.) to and until J une 10,

2011, in which to file a response to NICA's Motion for Summary

Final Order.

9 . Also o n April 14, 2011, Petitioner filed a pleading

entitled , "Petitioner's Joinder with NICA's Motion for Summary

Final Order as to the Issue of Compensability Only." By t his

pleading , Petitioner asserted that her failure to file her NICA

petition/claim within the five years' statute of limitation s was

"moot" and that the claim was not compensable.

10 . Thereafter, a final hearing on the merits was

repeatedly schedule d , only to be cancelled so that Intervenor(s)

might have sufficient time to respond to the Motion for Summary

Final Order.

1 1 . On May 10, 2011, Petitioner served, and on May 11,

2011, Petitioner filed, another Motion for Leave to Amend

Petition. This tim e, Petitioner(s) sought to amend the

petition/claim to allege that Martin Ayala is the father of the

child, Rafael Ayala, and to remove from the petition/claim all

previous allegations of brain damage to Rafael Ayala. Removal

from the claim of th e initial allegations of brain damage

substantively aligned Petitioners (now Rafael's mother and

Mr. Ayala) with NICA's position that the claim is not

compensable as asserted in NICA's Motion for Summary F inal

Order.

12. No timely response in opposition was filed, and on

May 27, 2011, a C orrected O rder on Second Amended Petition was

entered, which provided:

CORRECTED ORDER ON SECOND AMENDED PETITION 1

This cause came on for consideration upon

Petitioners' Motion for Leave to Amend

Petition served May 10, 2011. The motion

does not state the other parties'

positions(s) on the motion as required by

Florida Administrative Code Rule 28 -

106.204(3), but no timely response in

opposition thereto has been filed by any

party.

Upon consideration, it is ORDERED:

1. The M ot ion for Leave to Amend Petition

served May 10, 2011, is granted.

2. This cause shall proceed upon the Second

Amended Petition served May 10, 2011, and

filed May 11, 2011. The Second Amended

Petition, like all previous versions, is

barred as against NIC A by the statute of

limitation (section 766.313) which ruling

will be incorporated in the final order

herein.

ENDNOTE

1/ This Order clarifies the Order on Second

Amended Petition entered May 25, 2011, to

show this case is barred against NICA by the

st atute of limitations. (emphasis added).

13. On May 20, 2011, a Petition for Leave to Intervene was

filed by Vincent Gatto, M.D., Eva J. Salamon , M.D. ,

Meghan Garland , CNM , Susan Westman , CNM , and Bond Clinic , P.A.

No timely response in opposition was f iled, and on June 1, 2011,

an Order was entered granting I ntervenor status.

1 4 . On June 6 , 2011, Maria Kong, M.D., and P MGF , filed a

Petition for Leave to Intervene. There being no timely response

in opposition thereto, an Order Granting Petition to Inte rvene

was entered on June 15, 2011.

1 5 . On June 6, 2011, Intervenor Winter Haven Hospital,

Inc. , had filed a Motion for Extension of Time to Respond to

Motion for Final Summary Order [sic] and Conti nuance of Final

Hearing Date. On June 22, 2011, an Order Extending Date for

Responses to Motion for Summary Final Order and Cancelling Video

Teleconference Hearing was entered. That order provided, in

pertinent part:

This cause came on for consideration of

Intervenors Winter Haven Hospital, Inc.,

d/b/a Winter Haven Hospital and Regency

Medical Center's (hereinafter, "Winter Haven

Hospital, Inc.'s") Motion for Extension of

Time to Respond to Motion for Final Summary

Order [sic] and Continuance of Final Hearing

Date, served by U.S. Mail and filed on

June 6, 2011 . There has been no timely

response in opposition filed by any other

party.

Entry of a summary final order at this

point in the proceedings would be premature

and contrary to well - settled Florida law . 1

The present case, as against Respondent

NICA, is barred by the statute of

limitations, so it is clear that an early

setting of final hearing serves no viable

purpose in this forum.

Moreover, even Petitioners, by their

response to the May 25, 2011, Order to Show

Cause, filed June 3, 2011, has [sic]

req uested additional time before final

hearing for discovery on the issue of notice

or lack thereof . 2

ORDERED:

1. Intervenor Winter Haven Hospital,

Inc.'s Motion for Extension of Time to

Respond to Motion for Final Summary Order

[sic] and Continuance of Final Hearing is

granted, upon the following terms:

(a) The video teleconference final

hearing on the merits now scheduled for

July 11, 2011, is hereby cancelled.

(b) Respondent NICA's Motion for

Summary Final Order and Petitioners' Joinder

therei n are deemed to "carry over" as

against the Second Amended Petition, served

May 10, 2011, and filed May 11, 2011.

(c) The date for any party to file a

response in opposition or support of

Respondent NICA's Motion for Summary Final

Order and Petitioners ' Joinder therein, is

extended to July 8, 2011 . 3

(d) Oral argument on the pending

Motion for Summary Final Order (and Joinder)

will be by telephonic conference call on

July 11, 2011, at 9:30 a.m. . . .

* * *

(e) All parties shall have legal

couns el present at the July 11, 2011,

telephonic conference call and all counsel

shall be prepared to select a date for final

hearing on the merits, if a hearing on the

merits becomes necessary.

2. In the interest of administrative

economy and efficiency, th is cause will not

be rescheduled for final hearing until after

the pending Motion for Summary Final Order

is ruled upon. (Emphasis added) .

ENDNOTES

1/ See Story v. Am. Optical Corp. , 958 So.

2d 474, 475 (Fla. 4th DCA 2007); Sanchez v.

Sears, Roebuck & C o. , 807 So. 2d 196, 197

(Fla. 3d DCA 2002); Smith v. Smith , 734 So.

2d 1142, 1144 (Fla. 5th DCA 1999).

2/ Petitioners have raised the issue of

lack of notice from the inception of this

case. ( See paragraph 7 of the initial

petition (claim) filed August 27, 2010).

However, through inadvertence, the Notice of

Hearing mailed April 12, 2011, did not

specify that the scope of final hearing

would include both the issue of

"compensability" and the issue of "notice."

If raised, "notice" and "compensability"

is sues should be heard in a single hearing.

See § 766.309(4), Fla. Stat. Due to the flaw

in the April 12, 2011, Notice of Hearing, an

Order to Show Cause [why both issues should

not be heard on the date scheduled for final

hearing on compensability] was ente red on

May 25, 2011.

3/ Motions for summary final order and

responses thereto are to be grounded in

factual matters, substantiated by

affidavits, depositions, etc.

16. Thereafter, m any motions , most of them related to

discovery sought by Intervenors i n aid of their potential

responses to the pending Motion for Summary Final Order , were

filed . On July 11, 2011, a telephonic hearing was held on all

pending motions, and on July 12, 2011, an O rder was entered,

which provided:

On July 11, 2011, a telephon ic hearing

was held to address Respondent NICA's

pending Motion for Summary Final Order (and

Petitioners' Joinder therein). This hearing

had been scheduled since June 22, 2011.

On June 23, 2011, Intervenors Vincent

Gatto, M.D., Eva J. Salamon, M.D., Megh an

Garland, CNM, Susan Westman, CNM, and the

Bond Clinic, P.A., served a "Joinder" with

Intervenors Winter Haven Hospital, Inc.,

d/b/a Winter Haven Hospital and Regency

Medical Center's Motion for Extension of

Time to Respond to Motion for Final Summary

Or der and Continuance of Final Hearing Date . 1

Dr. Gatto et al.'s "Joinder" did not recite

all parties' position(s) on it, as required

by Florida Administrative Code Rule 28 -

106.204.

On July 5, 2011, Intervenors Vincent

Gatto, M.D., Eva J. Salamon, M.D., M eghan

Garland, CNM, Susan Westman, CNM, and the

Bond Clinic, P.A., served their own Motion

for Continuance of Oral Argument on the

Pending Motion for Summary Final Order (and

Joinder). On July 7, 2011, Maria Kong,

M.D., and Pediatrix Medical Group of

Flor ida, Inc., served their Motion for

Extension of Time to Respond to Motion for

Final Summary Order and Continuance of Final

Hearing Date. Neither motion recited all

the other parties' positions on the relief

sought. On July 8, 2011, Petitioners served

the ir response in opposition to the

foregoing motions, titled "Petitioners

Objection to Intervenors' Motions for

Continuance of Oral Argument on the Pending

Motion for Summary Final Order."

Accordingly, all issues having been

addressed in Petitioners' respon se, all

pending motions were heard at the previously

scheduled telephonic conference on July 11,

2011 . 2

Upon consideration of all pending

motions and oral argument by all parties, it

is ORDERED:

1. Respondent NICA's Motion for

Summary Final Order rema ins under

advisement.

2. Any party may show good cause, in

writing, filed with the Division of

Administrative Hearings, on or before

August 12, 2011, why the Motion for Summary

Final Order should not be granted. Failure

to timely show good cause will re sult in a

summary final order of dismissal.

3. The parties have stipulated that,

in the event the Motion for Summary Final

Order is denied on or about August 13, 2011,

they can be ready and available for a final

hearing on compensability and notice on

S eptember 21, 2011. That date is hereby

reserved for final hearing.

ENDNOTES

1/ However, Winter Haven's motion had

previously been granted by the June 22,

2011, Order Extending Date for Responses to

the Motion for Summary Final Order and

Cancelling Vid eo Teleconference Hearing.

2/ It is noted that oral argument on

motions is in the discretion of the ALJ and

compliance with Florida Administrative Code

Rules 28 - 106.204 and 28 - 106.103 usually

results in disposition of a motion within 7

to 12 days withou t the necessity of oral

argument. (emphasis added) .

17. F urther discovery ensued, and on July 26, 2011, Winter

Haven Hospital, Inc., served a notice for the July 29, 2011,

deposition of M. Nur Qureshi, M.D. Dr. Qureshi is apparently

the child's treati ng physician. O n July 2 7 , 2011 , Petitioners

filed " Plaintiff's [sic] Objection to Intervenors Bond Clinic,

Gatto, Salamon, Westman, and Garland Notice of Taking Deposition

for Friday, July 29, 2011. " 4 / Petitioners' "objection" did not

s eek to quash Inter venor's subpoena for Dr. Qureshi 's deposition

or seek a protective order, but did allege that the deposition

should be cancelled and rescheduled because Petitioners' lead

counsel was ill and unable to attend the deposition as scheduled

for July 29, 2011. Intervenor Winter Haven Hospital , Inc.'s

Response to Objection was filed later on July 27, 2011 , and

explain ed that W inter Haven Hospital, Inc. , had subpoenaed

Dr. Qureshi for deposition on July 29, 2011, because, despite

repeated requests, Dr. Qureshi wou ld not voluntarily make

herself available for deposition and because Petitioners' lead

counsel had not agreed to a ny date for taking the ir physician's

deposition prior to the date that Intervenors' responses in

opposition to the Motion for Summary Final Or der were required

to be filed.

18. On July 28, 2011, an Order was entered which provided

as follows:

This cause came on for consideration

upon Petitioners' Objection to Intervenors'

Notice of Taking Deposition for Friday,

July 29, 2011, filed July 27, 20 11, and

Intervenors' Response thereto filed the same

date.

Upon consideration thereof, it is

ORDERED:

1. In the event Petitioners are unable

to have any attorney from Diez - Arguelles &

Tejedor, P.A., attend the deposition of

Dr. Qureshi, scheduled fo r 4:15 p.m.,

July 29, 2011, they shall notify

Intervenors' counsel by 12:00 p.m., on

July 29, 2011.

2. Simultaneous with any notification

provided by Petitioners pursuant to

paragraph 1., above, Petitioners' counsel

shall provide available dates prior t o

August 8, 2011 , and shall produce their

treating physician, Dr. Qureshi, for

deposition prior to August 8, 2011.

3. Absent Petitioners producing

Dr. Qureshi for deposition in the time

period specified, the time for responses to

the Motion for Summary Final Order

(August 12, 2011), will be extended and the

trial date selected by the parties

(September 21, 2011), will be cancelled

until such time as Intervenors have had

adequate time for discovery so as to respond

to the Motion for Summary Final Order.

(emphasis added).

19 . The same day, July 28, 2011, Intervenor Winter Haven

Hospital, Inc., filed a Notice of Cancellation of Deposition of

Dr. M. Nur Qureshi and on August 1, 2011, filed an Amended

Notice of Taking Deposition for August 3, 2011 .

20. No party has notified the undersigned that

Dr. Qureshi's deposition did not go forward as rescheduled for

August 3, 2011.

21 . As of the A ugust 12, 2011, due date for filing any

responses in opposition to NICA's pending Motion for Summary

Final Order, no re sponse s in opposition to the m otion ha d been

filed , and there have been no further motions for extension of

time in which to file responses in opposition to the M otion for

Summary Final Order , which has been pending since April 6, 2011.

THE MOTION FOR SUMM ARY FINAL ORDER

22 . NICA's Motion for Summary Final Order is based on two

premises. First, NICA asserts that Petit i oners' claim is barred

as against NICA because the first petition , filed August 27 ,

2010, was filed more than five years after the date of

Rafael Ayala's birth on June 27, 2003. Second, NICA asserts

that Rafael did not suffer a birth - related neurological injury

as d efined in s ection 766.302(2) because neither his brain nor

his spinal cord were injured during labor, delivery, or

resuscitation in the immediate postdelivery period in a

hospital , and that , in fact, Rafael suffered an injury due to

shoulder dystocia which resulted in a brachial plexus injury and

a brachial plexus injury does not affect the brain or spinal

cord.

23 . Petitioners' " Joinder with NICA's Motion for Summary

Final Order as to the Issue of Compensability Only " agrees that

their claim is not compensable because Rafael suffered a non -

compensable brachial plexus injury . Also, at no time, through

sev eral amendments to the pe tition , have Petitioners ever

suggested that a NICA claim/petition had been filed within five

years of Rafael's birth .

24. Petitioners' legal assertion that the statute of

limitations is "moot," is nonsensical . A statute of limitations

is always a thre shold issue in any case , and here, there is no

factual dispute among the parties that the original petition was

filed more than five years after Rafael's birth.

2 5 . As to the issue of compensability or lack thereof,

Respondent NICA had Rafael's birth re cords evaluated by

Donald Willis, M.D., an obstetrician with special competence in

maternal - fetal medicine . Dr. Willis submitted an affidavit

expressing views within reasonable medical probability as

follows:

* * *

3. The Florida Birth - Related Neurolog ical

Injury Compensation Association retained me

as its expert in maternal - fetal medicine to

review the medical records from both RAFAEL

AYALA and his mother, ALVA NAZARIO - BAUTISTA.

The purpose of my review of the medical

records of RAFAEL AYALA and his mo ther, ALVA

NAZARIO - BAUTISTA was to determine whether an

injury occurred in the course of labor,

delivery or resuscitation in the immediate

post - delivery period in the Hospital due to

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate post -

delivery period in the Hospital.

4. A true and accurate copy of my Report is

attached hereto as Exhibit 1. All of the

statements and opinions expressed therein

are true and correct based upon my review o f

the medical records.

5. In summary, delivery was complicated by

shoulder dystocia that resulted in a

brachial plexus injury and a fractured

clavicle. The one minute Apgar score was

low, most likely related to the shoulder

dystocia. The baby responded to

resuscitation and had a normal Apgar of 8 at

five minutes. These findings suggest the

baby did not have oxygen deprivation or

mechanical trauma that resulted in brain

injury during labor or delivery.

6. The injury sustained by the child was a

brachi al plexus injury and a fractured

clavicle. These are not injuries to the

brain or spinal cord itself.

7. As such, it is my opinion that there was

no oxygen deprivation or mechanical injury

occurring in the course of labor, delivery

or resuscitation in t he immediate post -

delivery in the Hospital that resulted in

loss of oxygen or mechanical trauma to the

baby's brain or spinal cord. Accordingly,

there was no causal event which would have

rendered RAFAEL AYALA permanently and

substantially mentally and ph ysically

impaired as a result of same.

2 6 . Moreover, Dr. Willis attached to, and incorporated in ,

his affidavit his medical report which reads , in pertinent part,

as follows:

I have reviewed the medical records for the

above individual . The mother, Naza rio Alba

[sic] [ 5 / ] was a 41 year old G4 P3 with

Gestational Diabetes. She was admitted at

term in labor. The fetal heart rate (FHR)

monitor on admission shows a normal baseline

FHR of 135 bpm and a reactive pattern. Some

FHR decelerations, primarily var iable

decelerations, began about four hours before

delivery. The decelerations were

intermittent and not severe.

Vaginal delivery was complicated with a

shoulder dystocia. Birth weight was 3,751

grams or 8 l bs 5 ozs. The time from

delivery of the head until delivery was

completed was estimated to be only one

minute. Apgar scores were 3/8. The newborn

suffered a left Erb's Palsy and a fractured

clavicle related to the shoulder dystocia.

The baby was depressed at birth, but

improved quickly with resusci tation.

Resuscitation included bag and mask

ventilation, intravenous fluids for volume

expansion and Na Bicarbonate. Bag and mask

ventilation was required for about one

minute. The baby responded favorable [sic]

to resuscitation and was taken to the

nurs ery.

Respiratory distress required the baby to be

taken to the NICU for management. An

arterial blood gas was done with a pH of

7.26. Respiratory distress was managed with

nasal cannula oxygen and intubation was

never required. Platelet count was

decre ased at 87,000, but returned to normal

without platelet transfusions. Sepsis was

considered due to respiratory distress and

thrombocytopenia, but all cultures were no

growth. There was a question that the

respiratory distress may have been related

to nar cotics used during labor.

Head ultrasound on DOL 3 was normal. The

baby was discharged home at 6 days of life.

I do not have any medical records after

newborn hospital discharge.

In summary, delivery was complicated by

shoulder dystocia that resulted in a

brachial plexus injury and a fractured

clavicle. The one minute Apgar score was

low, most likely related to the shoulder

dystocia. The baby responded to

resuscitation and had a normal Apgar of 8 at

five minutes. These findings suggest the

baby did no t have oxygen deprivation or

mechanical trauma that resulted in brain

injury during labor or delivery.

2 7 . Preferably, t he Motion for Summary Final Order might

have provided the affirmative evidence of a neurologist who had

personally examined Rafael and diagnosed him as having only a

brachial plexus injury. However, here, a qualified obstetrician

has opined, without re f utation, that the medical records , which

Petitioners were required to furnish as part of their

claim/petition ( see s ection 766.305(3) ) a nd upon which

Petitioners ' claim relies , provide no evidence of oxygen

deprivation o r of mechanical injury , and upon that basis , NICA's

M otion for S ummary F inal O rder may be granted. Moreover, NICA's

affiant obstetrician has opined, without refutation, th at "the

injury sustained by the child was a brachial plexus injury and a

fractured clavicle. These are not injuries to the brain or

spinal cord itself."

2 8 . Finally, standard medical texts describe a brachial

plexus injury as not occurring within the bra in or spinal cord.

For instance, 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, nerve,

or veins. Brachial plex us : 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. . . .

2 9 . Gi ven the record, there is n o genuine issue as to any

material fact concerning either the running of the statute of

limitations prior to the filing of the initial petition/claim

herein or as to the claim's non - compensability. Specifically,

there is no dispute that the petition herei n was filed beyond

the statute of limitations for NICA claims or that Rafael Ayala

did not sustain a statutorily - defined compensable injury.

Accordingly, NICA's Motion for Summary Final Order is, for

reasons appearing more fully in the Conclusions of Law , well -

founded .

30 . 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 Co., Inc. v. Lake Shore

Growers Coop. Ass'n , 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).

CONCLUSIONS OF LAW

3 1 . The Division of Administrative Hearings has

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

the se proceedings. § § 766.301 - 766.316 , Fla. Stat.

3 2 . A s a threshold jurisdictional issue, this cause, as

against NICA, is barred by section 766.313 , which provides that:

"[a] ny claim for compensation under ss. 766.301 - 766.31 6 t hat is

filed more than 5 years after the birth of an infant alleged to

have a birth - related neurological injury shall be barred. "

3 3 . It is an undisputed fact that Rafael was born on

June 27, 2003, and that the claim/petition was filed at DOAH on

Augu st 27 , 2010. Therefore, factually, the claim was not filed

until more than t wo years after the statute had run, and the

claim is barred . Respondent NICA is entitled to a final order

which resolves that , notwithstanding that the claim may be

compensable, Petitioners may not pursue or recover an award of

benefits under the Plan.

3 4 . However, since Plan immunity may be a viable defense

to a civil suit and the ALJ has exclusive jurisdiction to

resolve whether a claim is compensable, it is necessary in the

po sture of this case , to resolve whether the claim is

compensable. See §§ 766.301(1)(d), 766.303(2), and 766.304,

Fla. Stat., and O'Leary v. Fla. Birth - Related Neurological

Injury Comp. Ass'n , 757 So. 2d 624 (Fla. 5th DCA 2000).

3 5 . In Green v. Fla. Birth - Related Neurological Injury

Comp. Ass'n and Henricks et al. , Case No. 02 - 2213N (Fla. DOAH

Apr. 24, 2003), per curiam aff'd , Green v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , 871 So. 2d 223 (Fla. 2d DCA

2004), the ALJ ruled that he was obligated to determine Plan

compensability even though the statute of limitations barred

Petitioner's NICA claim so that Petitioner could not pursue or

recover an award of benefits from NICA. To the same effect are

Expositio v. Fla. Birth - Related neurological Injur y Comp.

Ass'n . , Case No. 10 - 10320 (F la. DOAH May 20, 2011), currently on

appeal to the Third District Court of Appeal; Bautista v. Fla.

Birth - Related Neurological Injury Comp. Ass'n , Case No. 10 - 3208N

(Fla. DOAH Dec. 17, 2010); Romero v. Fla. Birth - Related

Neurological Injury Comp. Ass'n , Case No. 05 - 1901N (Fla. DOAH

Aug. 31, 2005); and Foott v. Fla. Birth - Related Neurological

Injury Comp. Ass'n , Case No. 02 - 4344N (Fla. DOAH Aug. 11, 2003).

3 6 . The ruling in Green was based, in part, upon the

participati on in that NICA case of intervenors who were seeking

to determine the "notice" issue. Petitioners, herein, ha ve

raised the notice issue, but the notice issue need not be

decided if the claim is found non - compensable. See Bautista v.

Fla. Birth - Related Ne urological Injury Comp. Ass'n , Case No.

10 - 3208N (Fla. DOAH Dec. 17, 2010), supra .

3 7 . Moreover, where, as here, it is concluded, as a matter

of law, that the child's injury is not compensable under the

Plan because it is not a "birth - related neurol ogical injury,"

the notice issue is rendered moot. See Orlando Reg'l Healthcare

Sys. v . Gwyn , 53 So. 3d 385 (Fla. 5th DCA 2011), holding " . . .

NICA cannot be found to afford the [parents] their exclusive

remedy for the simple reason that, as a matter of law, the

[parents] do not have a compensable claim under NICA."

3 8 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature " for the

purpose of providing compensation, irrespective of fault, for

birth - rel ated neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

3 9 . The injured " infant, her or his personal

representative, parents, dependents, and next of kin, " may seek

compensation under the Plan by fil ing a claim for compensation

with DOAH . §§ 766.302(3), 766.303(2), 766.305(1), and 766.313,

Fla. Stat. NICA, 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 su bmit relevant written

information relating to the issue of whether the injury is a

birth - related neurological injury. " § 766.305(4), Fla. Stat.

40 . 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 ALJ 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

res olved by the assigned ALJ in accordance with the provisions

of c hapter 120, F lorida Statutes. §§ 766.304, 766.309, and

766.31, Fla. Stat.

4 1 . In discharging this responsibility, the ALJ must make

the following determination based upon the available evide nce:

(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) W hether 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 participa ting 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

ALJ concludes that the " infant has sustained a birth - related

neurologi cal injury and that obstetrical services were delivered

by a participating physician at birth. " § 766.31(1), Fla. Stat.

4 2 . Pertinent to this case, " birth - related neurological

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

injury to the brain or spin al 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 dea th caused by genetic or

congenital abnormality. (emphasis added).

4 3 . Here, indisputably, Rafael Ayala did not sustain an

injury by oxygen deprivation or mechanical injury to the brain

or spinal cord during the statutory period. Consequently, given

the pro visions of section 766.302(2), he does not qualify for

coverage under the Plan. See also Humana of Fl a. , 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

liabilitie s, 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).

4 4 . Where, as here, the ALJ 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. Sta t. Such

an order constitutes final agency action subject to appellate

court review. § 766.311(1), Fla. Stat.

4 5 . So long as both compensability and notice (or lack

thereof) remain at issue, they should be heard together by the

ALJ. See § 766.309(4), Fla. Stat. However, once non -

compensability has been determined, notice is irrelevant. The

claim herein has been determined to be non - compensable under the

Plan, and accordingly all issues of notice are irrelevant . 6/

Therefore, and for the reasons afore said, it is not necessary

for this Summary Final Order to address any issue of notice . 7/

It is ORDERED:

1. This claim/petition against NICA is barred by the

statute of limitations.

2. This claim is not compensable under the Florida Birth -

Related Neurol ogical Injury Compensation Plan.

3. The final hearing scheduled for September 21, 2011, is

hereby cancelled.

4. This claim is dismissed with prejudice.

DONE AND ORDERED this 25th day of August , 2011 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the C lerk of the

Division of Administrative Hearings

this 25th day of August , 2011 .

ENDNOTES

1 / Nonetheless, it has become customary in some circuits for

malpractice action s to be filed in circuit court and abated

until the NICA case is resolved at DOAH. H ere, Petitioner(s)

apparently filed a notice of intent to initiate malpractice

action against all or some of the ultimate Intervenors.

2 / The ALJ has authority to enter a summary final order. See

Section 120.57(1)(h) , Fla. Stat. and Fla. Admin. Code R. 28 -

106.204 (4).

3/ Per Fl orida Administrative Code Rules 28 - 106.103 and 28 -

106.204 , t he last date for responses to NICA's Motion for

Summary Final Order would normally have been April 13, 2011. At

oral argument, counsel for Winter Haven Hospital, Inc., stated

the hospital would be filing a motion for extension to April 26,

2011 , which it did . ( See Paragraph 8 of this Order ) .

4 / Petitioners' counsel had apparently misapprehended which

Intervenor had noticed the deposition in question.

5 / This obviou sly inadvertent misspelling of the mother's name

is not fatal to the Motion for Summary Final Order, because the

name is correctly spelled in the accompanying affidavit, made

under oath , and the report itself bears the correct name and

birth date for this child, "Rafael Ayala DOB 06/27/03."

6/ See § 766.304, providing that "If the administrative law

judge determines that the claimant is entitled to compensation

from the association, . . . no civil action may be brought or

continued in violation of the exc lusiveness of remedy provisions

of s 766.304. If it is determined that a claim filed under this

act is not compensable, neither the doctrine of collateral

estoppel nor res judicata shall prohibit the claimant from

pursuing any and all civil remedies avail able under common law

and statutory law. . . ."

7/ All issues of compensability and notice are the exc lusive

jurisdiction of the ALJ. O'Leary v. Fl a. Birth - Related

Neurological Injury Comp . Ass 'n , 757 So. 2d 624 (Fla. 5th DCA

2000). A ll issues of immun ity from suit in circuit court are

within the jurisdiction of the circuit judge (and not the ALJ) .

Depart v. Macri , 902 So. 2d 271 (Fla. 1st DCA 2005); Gugelmin v.

Division of Admin . Hearings , 815 So. 2d 764 (Fla. 4th DCA 2002).

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 3090 0000 0717 1178)

Brian L. Smith, Esquire

Hill , Adams, Hall & Schieffelin, P.A.

Post Office Box 1090

Winter Park, Florida 32790 - 1090

(Certified Mail No. 7010 3090 0000 0717 1185)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail N o. 7010 3090 0000 0717 1192)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7010 3090 0000 0717 1208)

Henry W. Jewett, II, Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahu e & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 1215)

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 3090 0000 0717 1222)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 1239)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder is

entitled to judicial review pursuant to s ections 120.68 and

766.311, Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedur e. 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 § 766.311, F la.

Stat. , and Fl a. Birth - Related Neurological Injury Comp . Ass 'n 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.