12-001050N Agustina Sanchez, Individually And On Behalf Of Kayley Jazzmine Jimenez-Sanchez, Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, July 13, 2012.

Summary: Infant did not sustain a birth-related neurological injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGUSTINA SANCHEZ, individually )

and on behalf of KAYLEY )

JAZZMINE JIMENEZ - SANCHEZ, )

minor, )

)

Petitioner, )

)

vs. ) Case No. 12 - 1050N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

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

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES AND LORI - ANN )

SPREITZER, M.D., )

)

Intervenors. )

)

SUMMARY FINAL ORDER

This cause came on for consideration upon an unopposed

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA) on July 12, 2012.

STATEMENT OF THE CASE

On March 16, 2012, Petitioner, Agustina Sanchez,

individually and on behalf of Kayley Jazzmine Jimenez - Sanchez

(Kayley), a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. (Petition) with the

Division of Administrative Hearings (DOAH) for compensa tion

under the Florida Birth - Related Neurological Injury Compensation

Plan (Plan). The Petition named Dr. Lori - Ann Spreitzer and

Winnie Palmer Hospital.

DOAH served NICA with a copy of the Petition on March 21,

2012. DOAH served Winner Palmer Hospital w ith a copy of the

Petition on March 22, 2012. DOAH sent a copy of the Petition by

certified mail to Dr. Spreitzer on March 20, 2012. DOAH did not

receive a return receipt from the United States Postal Service

showing delivery to Dr. Spreitzer.

On March 2 7, 2012, Orlando Health, Inc. , d/b/a Winnie

Palmer Hospital for Women & Babies and Dr. Spreitzer filed a

Petition for Leave to Intervene. On April 11, 2012, an Order

Granting Petition to Intervene was entered.

On July 12, 2012, NICA filed a Motion for Sum mary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. NICA represents in its motion

that neither Petitioner nor Intervenors object to the entry of a

S ummary Final Order determining that Petitioner's claim is not

compensable under the Plan as a matter of law.

FINDINGS OF FACT

1. Kayley was born January 26, 2009, a t Winnie Palmer

Hospital in Orlando, Florida. She weighed 2,9 28 grams at birth.

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

to review the medical records of Kayley. In an affidavit dated

July 9, 2012, Dr. Willis opined as follows:

Based upon my education and experience, it

is my professional opinion, within a

reasonable degre e of medical probability

that Kayley Jazzmine Jimenez - Sanchez did not

suffer a "Birth - related Neurological Injury"

as defined by Florida Statutes Section

766.302(2) as there was no oxygen

deprivation or mechanical injury during

labor, delivery, or resuscit ation in the

immediate post delivery period which

resulted in injury to Kayley's brain or

spinal cord.

3. Attached to Dr. Willis' affidavit was a report

detailing his findings based on the medical records of Kayley as

follows:

Fetal heart rate (FHR) moni toring on

admission shows a normal baseline heart rate

of 145 bpm. The pattern is reactive. The

FHR monitor strip does not show any fetal

distress prior to delivery.

Cesarean section delivery was done without

difficulty. Birth weight was 2,928 grams

(6 lbs 7 oz's). Apgar scores were 4 / 8.

Umbilical cord blood gas was normal with a

pH of 7.28 and base excess of - 1.9. The

baby was taken to the nursery. Difficulty

with feeding occurred with emesis after

attempting to feed. X - Ray showed a dilated

loop of bowel. Gastorgrafin enema was done

for evaluation and identified Small Left

Colon syndrome.

Neurology evaluation at 2 days of age was

done for jitteriness. Exam shows abnormal

muscle tone. EEG on D O L 2 was normal. Head

ultrasound also had normal f indings. Skull

X - Ray showed asymmetry of the skull bones.

MRI on DOL 3 identified dilation of the left

lateral ventricle. There were no findings

suggestive of hypoxic ischemic

encephalopathy. Genetic evaluation was done

for the above findings and was n egative.

Chromosome analysis was normal. Genomic

hybridization array was negative.

In summary, there was no fetal distress

during labor. Delivery was by Cesarean

section due to breech presentation. The

newborn was not depressed. Umbilical cord

blood gas was normal with a pH of 7.28. The

baby was identified to have congenital

malformations, including Small Left Colon

syndrome and dilation of the left ventricle

in the brain. MRI did not suggest hypoxic

ischemic brain injury.

There was no apparent ob stetrical event that

resulted in loss of oxygen or mechanical

trauma to the baby's brain during labor,

delivery or the immediate post delivery

period.

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

have been no expert opinions filed that are contrary to the

opinion of Dr. Willis. The opinion of Dr. Willis that Kayley

did not suffer a neurological injury due to oxygen deprivation

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

delivery period is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

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

6. 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.

7. 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 DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. NICA,

which administe rs 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.

8. 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 cla im 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.

9. 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 neurolo gical 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 per manently

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 phys ician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

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 i n the immediate postdelivery

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 de livered by a participating physician

at birth." § 766.31(1) , Fla . Stat.

10. The term "birth - related neurological injury" 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 weighing

at least 2,000 grams at birth caused by

oxyge n 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.

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

Kayley 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 resuscitation in the immediate

postdelivery period in a h ospital, which renders her

substantially and permanently physically and mentally impaired.

Therefore, Kayley 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

Agustina Sanchez, individually and on behalf of Kayley, is

dismissed with prejudice.

DONE AND ORDERED this 13th day of July, 2012, 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 Admini strative Hearings

this 13th day of July, 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

(Ce rtified Mail No. 7011 1570 0003 4464 6038)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7011 1570 0003 4464 6045)

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

B igman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7011 1570 0003 4464 6052)

Bradley Paul Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0003 4464 6069)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0003 4464 6076)

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 0003 4464 6083 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Re view 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), Florida Statutes. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are co mmenced 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 cler k 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).