11-003002N Jomarie Perez And Jose G. Colon, On Behalf Of And As Parents And Natural Guardians Of Josianny M. Colon, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 24, 2012.

Summary: Motion for Summary Final Order is granted where the definition of compensable injury is not met; the infant is not permanently substantially mentally impaired nor permanently and substantially impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOMARIE PEREZ AND JOSE G. )

COLON, on behalf of and as )

parents and natural guardians )

of JOSIANNY M. COLON, a minor , )

)

Petitioners , )

)

vs. ) Case No. 11 - 3002N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

ORLANDO HEALTH, INC., d/b/a )

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES, RICARDO JAVIER )

LOPEZ, M.D., AND PHYSICIAN )

ASSOCIATES, )

)

Intervenor s . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the Stipulation

for Entry of Final Summary Order [sic] filed January 13, 2012.

By their stipulation, the parties, through their respective

counsel, have agreed that Josianny M. Colon's situation does not

meet the definition of a "birth - related neurological injury," as

defined a t secti on 766.302(2), Florida Statutes.

In support of their stipulation, the parties have

incorporated the July 28, 2011, letter of Donald C. Willis,

M.D., and the September 20, 2011, and November 14, 2011, letters

of Raymond J. Fernandez, M.D., which were attach ed to Respondent

NICA's Response to Petition, filed November 15, 2011, pursuant

to section 766.305(4). Even though none of the letters are

under oath or accompanied by an affidavit, and none are couched

in terms of "reasonable medical probability," the pa rties

mutually submit that the undersigned may rely upon the letters

a s if admitted in evidence by stipulation .

It being the opinion of an obstetrician (Dr. Willis) , who

has reviewed the medical records , and of a pediatric neurologist

(Dr. Fernandez) , wh o has reviewed the medical records and who

also has personally examined Josianny, that Josianny 's problems

and situation do not meet the definition of a "birth - related

neurological injury" as set out at section 766.302(2), in that

she has not suffered loss of oxygen or mechanical trauma to her

brain or spinal cord during the statutory period and does not

suffer substantial motor (physical) impairment, it is

ORDERED that this cause is dismissed with prejudice because

it is unrefuted that the injury, if any, to Josianny M. Colon

does not constitute a "birth - related neurological injury" as

defined by section 766.302(2).

DONE AND ORDERED this 24th day of January , 2012 , 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 Clerk of the

Division of Administrative Hearings

this 24th day of January , 2012 .

COPIES FURNISHED :

(Via Certified Mail)

Grant A. Kuvin, Esquire

Morgan & Morgan, P.A.

20 North Orange Avenue, Suite 1600

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 1512)

Bradle y Paul Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 8139)

Karissa L. Owens, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, P.A .

201 East Pine Street, Suite 1500

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 3103 8146)

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7010 1670 0000 3103 8153)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 701 0 1670 0000 3103 8160)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7010 1670 0000 3103 8177)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3103 8184)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

b y appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the agency clerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be

reviewed, and a copy, accompanied by filing fees prescribed by

law, with the clerk of the appropriate District Court of Appeal.

See § 766.311(1) , Fla. Stat., and Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).