10-010251N Marlane Ruiz And Ricardo Rodriguez, On Behalf Of And As Parents And Natural Guardians Of Nathan Ruiz-Rodriguez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, March 2, 2011.

Summary: Child's birth weight was less than minimum required for coverage of a single gestation (2,500 grams) under the Florida Birth-Related Neurological Injury Compensation Association Plan. The motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARLANE RUIZ AND RICARDO )

RODRIGUEZ, on behalf of and as )

parents and natural guardians )

of NATHAN RUIZ - RODRIGUEZ, a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 10 - 10251N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

OSCEOLA REGIONAL HOSPITAL, )

INC., d/b/a OSCEOLA REGIONAL )

MEDICAL CENTER, )

)

Intervenor . )

)

SUMMARY FINAL ORDER

This cause came on for consideration upon Respondent's

Motion for Summary Final Order served January 20, 2011.

STATEMENT OF THE CASE

1. On November 17, 2010, Petitioners Marl a ne Ruiz and

Ricardo Rodriguez, on behalf of and as parents and natural

guardia ns of Nathan Ruiz - Rodriguez (the child) 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

Natha n's birth on February 16, 2008, at Osceola Regional Medical

Center. The Petition named Dr. Jose Ismael Gierbolini as the

physician providing obstetric services who was present at the

birth.

2. DOAH served the Florida Birth - Related Neurological

Injury Co mpensation Association (NICA) with a copy of the claim

on November 19, 2010. Dr. Gierbolini and Osceola Regional

Medical Center were each served on November 23, 2010. Only

Orlando Regional Hospital, Inc., d/b/a Orlando Regional Medical

Center , has moved to intervene, and its motion filed January 12,

2011, was granted by the Order entered herein on January 25,

2011.

3. On January 20, 2011, NICA served a Motion for Summary

Final Order, the predicate for which was the proposition that

Nathan was the result of a single gestation and at birth weighed

only 1,960 grams, which is less than the 2,500 grams required by

statute as the threshold for NICA claim/eligibility.

4. The supporting documentation for NICA's position and

Motion for Summary Final Order, which was attached to the

Motion, is a certificate of authenticity, signed by a

representative (Diana David) of the appointed designee

(HealthPort Technology, Inc.) responsible for release of medical

records of Osceola Regional Medical Center , attesting to the

t ruth and accuracy of a patient record , titled "Delivery Summary

for Marianne Ruiz , " showing : "Baby A" delivered at 8:09 EST on

2/16/08, male, live born, birth weight: 1,960 grams; no. of

babies in womb: 1.

5. The Motion for Summary Final Order was not served on

Intervenor Osceola Regional Hospital, Inc., d/b/a Osceola

Regional Medical Center, probably because at the time of service

and filing ( January 20, 2011 ) , intervention had not yet been

granted. Also, the certificate of service on the Motion for

S ummary Final Order was ambiguous, so on January 25, 2011, the

same date as the intervention order, the undersigned caused the

Motion for Summary Final Order to be sent by U.S. Mail to

Petitioners and to Intervenor. No timely response in opposition

to the Motion for Summary Final Order was filed by either

Petitioner s or Intervenor as provide d - for in Florida

Administrative Code Rules 28 - 106.103 and 28 - 106.204, so on

February 8, 2011, an Order to Show Cause was entered, which

provided :

On January 20, 201 1, Respondent served

a Motion for Summary Final Order. The

certificate of service thereon was

ambiguous, so on January 25, 2011, the

undersigned sent the Motion for Summary

Final Order by U.S. Mail to Petitioners and

Intervenor.

To date, neither Pe titioners nor

Intervenor has 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 February 21, 2011,

Petitioners and Intervenor shall show good

cause in writing, if any they can, why the

relief requested by Respondent should not be

granted.

6. No timely response to the February 8, 2011, Order to

Show Cause has been filed.

7. Given the record, there is no dispute of ma terial fact.

Specifically, there is no dispute regarding Nathan's live birth

on February 16, 2008, that he was the result of a single

gestation, and that he weighed only 1,960 grams at birth.

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has

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

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

9 . The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensa tion, irrespective of fault, for

birth - related neurological injury claims" relating to births

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

1 0 . The injured "infant, her or his personal

representative, parents, dependents, and next of ki n," 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 Associatio n,

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

neurologica l injury." § 766.305( 4 ), Fla. Stat.

1 1 . 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 jud ge to whom the claim has

been assigned. § 766.305( 7 ), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned A dministrative L aw

J udge in accordance with the provisions of c ha pter 120, F lorida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

1 2 . In discharging this responsibility, the A dministrative

L aw J udge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

b irth - 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.

766.302(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, delive ry, or

resuscitation in the immediate post - delivery

period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

A dministrative L aw J udge concludes that the "infant has

sustained a birth - related neurological injury and that

obst etrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

1 3 . Pertinent to this case, "birth - related neurological

injury" is defined by s ection 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 resuscitati on 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. (Emphasis added).

1 4 . Here, indisputably, Nathan's birth weight was 1,960

grams. Consequently, given the provisions of s ection

766.302(2), Nathan does not qualify for coverage under the Plan.

See also Humana of Fl a. , Inc. v. McK aughan , 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 , Fl a. Bi rth - Related

Neurological Injury Comp . Ass 'n v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996).

15 . Where, as here, the Administrative Law Judge

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

neurological injury . . . she . . . 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.

S tat.

CONCLUSION

Based on the foregoing Statement of the Case and

Conclusions of Law, it is

ORDERED that the claim for compensation filed by Marl a ne

Ruiz and Ricardo Rodriguez, on behalf of and as parents and

natural guardians of Nathan Ruiz - Rodriguez, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 2nd day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of March , 2011 .

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 0718 3751)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7010 1670 0000 3097 0973)

Richard B. Schwamm, Esquire

Haliczer Pettis & Schwamm

225 East Robinson Street, Suite 475

Orlando, Florida 32801

(Certified Mail No. 7010 1670 000 0 3097 0980)

Jose Ismael Gierbolini, M.D.

700 West Oak Street

Kissimmee, Florida 34741

(Certified Mail No. 7010 1670 0000 3097 1017)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Talla hassee, Florida 32399 - 3275

(Certified Mail No. 7010 1670 0000 3097 0997 )

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 1 670 0000 3097 1000 )

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 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 Co urt 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 b e reviewed.