11-006263N Gabriela Lora And Mike Lora, On Behalf Of And As Parents And Natural Guardians Of Alexandra Lora, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 5, 2012.

Summary: Child did not suffer an injury to the brain or spinal cord during labor, delivery, or in immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GABRIELA LORA AND MIKE LORA, on )

behalf of and as parents and )

natural guardians of ALEXANDRA )

LORA, a minor , )

)

Petitioners , )

)

vs. ) Case No. 11 - 6263N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA) on May 1,

2012.

STATEMENT OF THE CASE

On December 12, 2011, Petitioners, Gabriela Lora and

Mike Lora, on behalf of and as parents and natural guardians of

Alexandra Lora (Alexandra), a minor, file d a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with the Division of Administrative Hearings (DOAH)

for compensation under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named

Joseph Gauta (Dr. Gauta) and North Collier Hospital.

DOAH served NICA with a copy of the Petition on

December 15, 2011. DOAH served Dr. Gauta and North Collier

Hospital with a copy of the Petition on December 16, 2011.

On May 1, 2012, NICA filed a Motion for Summary Final

Order, asserting that Alexandra did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. No response was filed to the

motion.

On May 16, 2012, an Order to Show Cause was ent ered

requiring Petitioners to show cause in writing on or before

May 25, 2012, why the motion should not be granted and a summary

final order be entered finding that Petitioners' claim is not

compensable. To date no response has been filed to the Order to

Show Cause.

FINDINGS OF FACT

1. Alexandra Lora was born on June 20, 2007, at North

Collier Hospital in Naples, Florida. She weighed 2,950 grams at

birth.

2. Donald Willis, M.D. (Dr. Willis) , was requested by NICA

to review the medical records of Alexan dra and her mother

Gabriela Lora. In an affidavit dated April 26, 2012, Dr. Willis

opined as follows:

I have reviewed the records for the above

individuals [Alexandra and Gabriela Lora].

The mother Gabriela Lora was a 23 year old

G3 P2002 with Gestationa l Diabetes. She was

admitted to the hospital at 36 to 37 weeks

gestational age in early labor.

The fetal heart rate (FHR) tracing during

labor is reactive and does not suggest fetal

distress. Delivery was by repeat Cesarean

section. Birth weight was 2, 950 grams or

6 lbs. 8 oz. Amniotic fluid was clear at

time of delivery.

The newborn was not depressed. Apgar scores

were 8/9. No resuscitation was required.

Slight nasal flaring was noted at birth as

well as some facial bruising. The newborn

ad mission history and physical exam

describes a normal baby girl. Routine care

was recommended. Some jaundice was present,

but otherwise the newborn hospital course

was uncomplicated. By two years of age, the

child was diagnosed with Cerebral Palsy and

de velopmental delay.

In summary, the FHR monitor during labor did

not suggest fetal distress. Delivery was by

repeat Cesarean section with normal Apgar

scores. The baby did not require

resuscitation and had an essentially normal

newborn hospital course.

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.

3. On February 22, 2012, Michael S. Duchowny

(Dr. Duchowny) evaluated Alexandra at Miami Children's hospital.

His examination revealed the following:

Physical Examination reveals an alert, well -

developed and cooperative appropriately

proportioned 4 - year - old girl. Alexandr a is

a left - hander. The skin is warm and moist

and there a re no neurocutaneous stigmata or

dysmorphic features. No craniofacial

anomalies are noted. Head circumference

measures 50.4 cm which is within standard

percentiles for her age. The anterior and

posterior fontanelles are closed. There are

no digital ske letal or palmar abnormalities.

The spine is straight and there is no

dysmorphism. The neck is supple without

masses thyromegaly or adenopathy. The heart

sounds are strong and the chest is clear.

There is no palpable abdominal organomegaly.

Peripheral pulses are 2 and symmetric.

Alexandra wears bilateral AFOs and a right

rubber support wrist splint.

Neurological examination reveals a child who

is fully intact and appropriate. She is

socially engaging and easily examined. She

displays an age - appropr iate level of

curiosity and her attention span and

concentration are age - appropriate as well.

Her speech is fluent and well articulated

and there are no labial lin g ual or guttural

dysarthric sounds. She could name body

parts and colors without difficulty and

followed comp lex commands accurately.

Cranial nerve examination reveals full

visual fields to direct confrontation

testing. There is blink to threat from all

directions. Pupils are 3 mm and react

briskly to direct and consensually presented

light. Funduscopic examination reveals

sharply demarcated optic disc margins

without pallor and no abnormal retinal

findings. Extraocular movements are full an

[sic] conjugate without nystagmus. There is

a slight right facial asymmetry

characterized by decreas ed movement of the

lower facial muscles on voluntary

expression. Pharyngeal folds are symmetric

and the uvula is midline the tongue

movements are full and conjugate.

Motor examination reveals evidence of a mild

right hemiparesis involving arm and leg.

T here is full range of motion and no

contractures. There is virtually no

spasticity but a very slight degree of

dystonia is noted. Alexandra tends to

posture the right hand particularly while

walking and there is a slight decrease in

right arm swing. Rem arkably to she [sic]

has preserved individual finger dexterity of

both hands indicating preserved fine motor

coordination. Alexandra grasped with either

hand although she tends to transfer to the

left. There are no fasci c ulations and no

focal weakness or atrophy.

4. Dr. Duchowny opined that:

Alexandra's general physical and

neurological examinations reveal evidence of

a mild right hemiparesis without prominent

spasticity and with well - preserved cognitive

abilities including expressive and receptive

la nguage skills. These finding indicate

that Alexandra has neither a substantial

motor n or mental impairment. In all

likelihood, she will continue to improve in

the future. A review of her medical records

sent on February 6th further indicates that

there were no complications of labor or

delivery to suggest that Alexandra's deficit

was acquired intrapartum.

Based on the foregoing, I believe that

Alexandra should not be considered for

compensation within the NICA statute.

5. A review of the file in this case reveals that there

have been no expert opinions filed that are contrary to the

opinions of either Dr. Willis or Dr. Duchowny. The opinions of

Dr. Willis and Dr. Duchowny that Alexandra did not suffer a

neurological injury due to oxygen deprivation or mechanical

injury during labor, delivery, or immediate post - delivery period

are credited. Additionally, Dr. Duchowny's opinion that

Alexandra has neither a substantial mental or motor impairment

is also credited.

CONCLUSIONS OF LAW

6. The Division of Ad ministrative Hearings has

jurisdiction over the parties to and the subject matter of these

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

7. The 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.

8. The injured infant, her or his personal representative,

parents, dependents, and next of kin may seek compensation under

the P lan by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), 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 submit relevant written information relating

to the issue of whether the injury is a birth - related

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

9. 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(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 administrative law

judge in accordance with the provisions of chapter 120, Florida

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

10. 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 birth -

related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant ha s 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 b irth - 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 postdelivery

period in a hospital; or by a cer tified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital.

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

adm inistrative 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 .

11. The term "birth - related neurological inju ry" is

defined in section 766.302(2) as follows:

"Birth - related neurological injury" means

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 weig hing

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 men tally and physically

impaired.

12. The evidence, which is not refuted, established that

Alexandra did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury occurring in

the course of labor, delivery, or resu scitation in the immediate

postdelivery period in a hospital, which renders her

substantially and permanently physically and mentally impaired.

Therefore, Alexandra is not eligible for benefits under the

Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the petition for benefits filed by

Gabriela Lora and Mike Lora, on behalf of and as parents and

natural guardians of Alexandra Lora, is dismissed with

prejudice.

DONE AND ORDERED this 5th day of June , 201 2 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 5th day of June , 2012 .

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. 7011 1570 0001 1540 6229)

Gabriela Lora

Mike Lora

3730 14th Avenue Southeast

Naples, Florida 34117

(Certified Mail No. 7011 1570 0001 1540 6236)

M artin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

(Certified Mail No. 7011 1570 0001 1540 6243)

North Collier Hospital

11190 Healthpark Boulevard

Naples, Fl orida 33941 - 3010

(Certified Mail No. 7011 1570 0001 1540 6250 )

Joseph Gauta, M.D.

1890 Southwest Health Parkway, Suite 205

Naples, Florida 34109 - 0473

(Certified Mail No. 7011 1570 0001 1540 6267 )

Amie Rice, Investigation Manager

Consumer Services U nit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 6274 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 6281 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

by appeal to the District Court of Appeal pursuant to section

766.311(1), Flor ida 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 da ys 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. Carr eras , 598 So. 2d 299

(Fla. 1st DCA 1992).