12-001851N Dafne Quiroga And Alvaro Iriarte, Individually And As Parents And Natural Guardians Of Alvaro Tadeo Iriarte Quiroga, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 4, 2013.

Summary: Child did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring during the course of labor or delivery which resulted in substantial and permanent mental and physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAFNE QUIROGA and ALVARO )

IRIARTE, individually and as )

parents and natural guardians )

of ALVARO TADEO IRIARTE )

QUIROGA, a minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 1851N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENS ATION ASSOCIATION , )

)

Respondent, )

)

and )

)

GENE BURKETT, M.D., AND PUBLIC )

HEALTH TRUST OF MIAMI - DADE )

COUNTY, d/b/a JACKSON HEALTH )

SYSTEM, )

)

Intervenors . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on March 4,

2013.

STATEMENT OF TH E CASE

On April 26, 2012, Petitioners, Dafne Quiroga and

Alvaro Iriarte, individually and as parents and natural

guardians of Alvaro Tadeo Iria r te Quiroga (Alvaro), a minor,

filed a Petition Pursuant to Fla. Stat. §766.301 et seq.

(Petition) with the Divi sion of Administrative Hearings (DOAH)

for a determination of compensability under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan).

The Petition named Gene Burkett, M.D.; Lesley de la Torre,

M.D.; Sarah Jeffers, M.D.; Dr. Lewis, Dr. Del Valle; Dr. Gilles ;

Dr. Toyama ; Dr. Frohoch, and Dr. Missair, as the physicians

providing obstetric services at the onset of labor through the

birth of Alvaro at Jackson Memorial Hospital in Miami, Florida.

The Petition alleges that the named physicia ns were employed by

the University of Miami , d/b/a University of Miami School of

Medicine or The Public Health Trust of Miami - Dade County.

DOAH served NICA with a copy of the Petition on May 23,

2012. DOAH served copies of the Petition on Jackson Memorial

Hospital and Drs. Frochock, Gilles, Toyam a , Lewis, Jeffers,

Missair, De La Torre, Burkett, and Del Valle on May 24, 2012.

Dr. Jeffers was also served a copy of the Petition by DOAH on

June 29, 2012.

On June 6, 2012, Dr. Burkett filed a Petition for Lea ve to

Intervene, which was granted by Order dated June 19, 2012. On

June 20, 2012, The Public Health Trust of Miami - Dade County ,

d/b/a Jackson Health System filed a Petition for Leave to

Intervene, which was granted by Order dated July 3, 2012. As of

the date of this Summary Final Order of Dismissal, none of the

other physicians have petitioned to intervene in this

proceeding.

On March 4, 2013, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. Petitioners have not filed a

response to the motion and ha d previously taken the position

that the injury to Alvaro is not compensable.

By Order dated March 8, 2013, Dr. Burkett was given an

extension of time in which to file a response to the Motion for

Summary Final Order. On March 29, 2013, Dr. Burkett, filed a

response to the Motion for Summary Final Order stating that he

had no objection to the granting of the Motion for Summar y Final

Order. On April 1, 2013, Public Health Trust of Miami - Dade

County filed a response joining Dr. Burkett's response and

stating that it had no objection to the granting of the Motion

for Summary Final Order.

FINDINGS OF FACT

1. Alvaro Tadeo Iriart e Quiroga was born on May 31, 2007,

at Jackson Memorial Hos pital in Miami, Florida. Alvaro weighed

2,865 grams at birth.

2. NICA retained Michael S. Duchowny, M.D., as its medical

expert in pediatric neurology. Dr. Duchowny examined Alvaro and

reviewed his medical records. Dr. Duchowny opined as follows:

In summary, Alvaro's neurological

examination reveals evidence of abnormal

cranial configuration, speech dysarthria,

short attention span, high activity level,

inconsistent social visual regard, and

limited social interaction. He manifests an

expressive language delay. He also

demonstrates fine motor incoordination.

These findings are consistent with a

diagnosis of pervasive developmental

disorder (PDD) which does not constitute

either a substantia l mental or motor

impairment.

A review of Alvaro's medical records

indicates that he was born at 37 weeks

gestation at Jackson Memorial Hospital with

a birth weight of 2,865 gm. Cord Blood

gases reveled [sic] significant acidosis and

he did not get ox ygen for a prolonged period

of time (23 minutes). He went on to

evidence renal failure and liver dysfunction

and had polcythemia and thrombocytopenia. A

brain CT scan revealed partial

craniosynostois of the anterior sagittal

suture. Of note, Alvaro's MR I scan of the

brain performed on June 7, 2007 showed no

significant abnormalities.

Despite his adverse perinatal

circumstances, I do not believe that

Alvaro's present neurological problems

resulted from either mechanical injury or

oxygen deprivation in the course of labor or

delivery. Furthermore, he has neither a

substantial mental nor motor impairment.

For these reasons, I am not recommending

Alvaro for compensation within the NICA

program.

3. A review of the file does not show any opinion contra ry

to Dr. Duchowny's opinions Alvaro did not suffer a neurological

injury due to oxygen deprivation or mechanical injury during

labor or delivery and that Alvaro does not have a substantial

and permanent mental and physical impairment due to lack of

oxygen or mechanical trauma are credited.

CONCLUSIONS OF LAW

4. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

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

5. The Plan was established by the Legis lature "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.

6. The injured infant, her or his personal represen tative,

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 administers the Plan, has "45 days from the date of

s ervice 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.

7. If NICA determines t hat 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. St at. 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.

8. 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 neurological injury. If the

claimant has demonstra ted, 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 phys ically

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 physician in

the course of labor, delivery, or

r esuscitation 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 in the immediate postdelivery

period in a hos pital.

§ 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 delivered by a participating physician

at birt h." § 766.31(1), Fla. Stat.

9. 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

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery peri od in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired.

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

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

caused by oxygen deprivation or mechanical injury occurring in

the course of labor or delivery which resulted in substantial

and permanent mental and physical impairments. Therefore,

Alvaro is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings o f Fact and Conclusions

of Law, it is ORDERED that the Petition filed by Dafne Quiroga

and Alvaro Iriarte, individually and as parents and natural

guardians of Alvaro Tadeo Iriarte Quiroga, is dismissed with

prejudice.

DONE AND ORDERED this 4th day of April , 2013 , 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 4th day of April , 2013 .

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. 7012 1010 0001 8357 0084)

Lincoln J. Connolly, Esquire

Rossman, Baumberger, Reboso

Spier and Connolly, P.A.

Courthouse Tower, 23rd Floor

44 West Flagler Street

Miami, Florida 33130 - 1808

(Certified Mail No. 7012 1010 0001 8357 0091)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7012 1010 0001 8357 0107)

Marc J . Schleier, Esquire

Fowler, White, Burnett, P.A.

Espirito Santo Plaza, 14th Floor

1395 Brickell Avenue

Miami, Florida 33131 - 3302

(Certified Mail No. 7012 1010 0001 8357 0114)

Maria Arista - Volsky, Esquire

Miami - Dade County Attorney ' s Office

Suite 2800

11 1 Northwest 1st Street

Miami, Florida 33128

(Certified Mail No. 7012 1010 0001 8357 0121)

Lesley De La Torre, M.D.

Suite 200A

7765 Southwest 87th Avenue

Miami, Florida 33176

(Certified Mail No. 7012 1010 0001 8357 0138 )

Sara Jeffers, M.D.

Atlanta Women's Specialists

Suite 430

5445 Meridian Marks Northeast Road

Atlanta, Georgia 30342

(Certified Mail No. 7012 1010 0001 8357 0145)

Takeko M. Toyama, M.D.

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 70 12 1010 0001 8357 0152)

Andres Missair, M.D.

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 70 12 1010 0001 8357 0169)

Gene Burkett, M.D.

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 70 12 1010 0001 8357 0176)

Jackso n Memorial Hospital

Public Health Trust of Miami - Dade

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 70 12 1010 0001 8357 0183)

Jeffrey Innes Frohock, Jr., M.D.

Suite 420

125 Doughty Street

Charleston, South Carolina 29403

( Certified Mail No. 70 12 1010 0001 8357 0190 )

Jerry Max Gilles, M.D.

Suite 323 West Wing

1600 South Andrews Avenue

Fort Lauderdale, Florida 33316

(Certified Mail No. 70 12 1010 0001 8357 0206 )

Kara Mae Del Valle, M.D.

215 Grand Avenue

Coral Gables , Florida 33133

(Certified Mail No. 70 12 1010 0001 8357 0213)

Katrina Lewis, M.D.

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 70 12 1010 0001 8357 0220 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of H ealth

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1010 0001 8357 0237 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Flor ida 32308

(Certified Mail No. 7012 1010 0001 8357 0244 )

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), Florida Statutes. Rev iew 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 2 99

(Fla. 1st DCA 1992).