12-001994N Melissa Calderon And Dennis Rodriguez, On Behalf Of And As Parents And Natural Guardians Of Mia Rodriguez, A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, December 7, 2012.

Summary: Child did not sustain oxygen deprivation or mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELISSA CALDERON AND DENNIS )

RODRIGUEZ, on behalf of and as )

parents and natural guardians )

of MIA RODRIGUEZ, a minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 1994N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASS OCIATION , )

)

Respondent, )

)

and )

)

LUIS CALDERA - NIEVES, M.D., )

)

Intervenor . )

)

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

August 30, 2012.

STATEMENT OF THE CASE

On June 4, 2012, Petitioners, Melissa Calderon and

Den n is Rodri g uez, on behalf of and as parents and natural

guardians of Mia Rodriguez (Mia), a minor, filed a Petition for

Determination of Compensability Pursuant to Florida Statute

Section 766.301 et se q . (Petition) with the Division of

Administrative Hearings (DOAH) for compensatio n under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan). The Petition named Luis Caldera - Nieves, M.D., and

Jackson South Community Hospital.

DOAH served NICA with a copy of the Petition on June 7,

2012. DOAH served a copy of the Pe tition on Jackson South

Community Hospital on June 6, 2012. Dr. Caldera - Nieves received

a copy of the Petition on June 14, 2012. As of the date of this

Summary Final Order of Dismissal, Jackson South Community

Hospital has not petitioned to intervene in this proceeding. On

August 9, 2012, Dr. Caldera - Nieves filed a Petition for Leave to

Intervene. By Order dated September 25, 2012, Dr. Calder a -

Nieves was granted leave to intervene.

On August 30, 2012, NICA filed a Motion for Summary Final

Order, asserti ng that Mia did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

On September 11, 2012, Dr. Calder a - Nieves filed Intervenor,

Luis Caldera - Nieves, M.D.'s Motion to Defer Ruling on Florida

B irth - Related Neurological Injury Compensation Association's

Motion for Summary Final Order, requesting additional time in

which to respond to the Motion for Summary Final Order. An

Order Granting Motion to Defer Ruling was entered on

September 25, 2012. After an additional extension of time in

which to respond to the motion, Dr. Calder a - Nieves filed a

response on November 13, 2012, stating that he had no objection

to the entry of a Summary Final Order as requested by

Respondent.

Petitioners did not file a response to Respondent's Motion

for Summary Final Order. On November 14, 2012, an Order to Show

Cause was entered requiring Petitioners to show cause in writing

on or before November 30, 2012, why the Motion for Summary Final

Order should not be granted. As of the date of this Summary

Final Order of Dismissal, Petitioners have not filed a response

to the Order to Show Cause.

FINDINGS OF FACT

1. Mia Rodriguez was born on September 29, 2008, at

Jackson South Community Hospital in Miami, Florida. Mia wei ghed

3,230 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), an obstetrician

specializing in maternal - fetal medicine , was requested by NICA

to review the medical records for Mia. In an affidavit dated

August 24, 2012, Dr. Willis described his findings as follows:

[L]abor was complicated by infection,

chorioamnionitis. Fetal heart rate

monitoring during labor did not suggest any

significant fetal distress. The baby was

not depressed at birth. Apgar scores were

9/9. Newborn hospital course was

uneven tful. Within one year of age the

child demonstrated neurologic abnormalities

and was diagnosed with cerebral palsy. MRI

showed a porencephalic cyst.

This child has clinical and MRI evidence

of brain injury. However, review of the

medical records does n ot suggest the brain

injury was the result of oxygen deprivation

or mechanical trauma during labor, delivery

of [sic] the immediate post - delivery period.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the b aby's brain during delivery

or the immediate post delivery period.

3. In his affidavit, Dr. Willis summarized his opinion as

follows:

[I]t is my opinion that there was no

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate post -

delivery in the Hospital. Further, in that

there was no oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery or resuscitation in the

immediately post - delivery period in the

Hospital, th en accordingly, there was no

causal event which would have rendered MIA

RODRIGUEZ permanently and substantially

mentally and physically impaired as a result

of same.

4. NICA retained Michael S. Duchowny, a pediatric

neurologist, to examine Mia and to rev iew the medical records of

Mia and her mother, Ms. Calderon, to determine whether Mia

suffers from an injury which rendered her permanently and

substantially mentally and physically impaired and whether such

injury is consistent with an injury caused by ox ygen deprivation

or mechanical injury occurring during the course of labor,

delivery, or the immediate post - delivery period in the hospital.

In an affidavit dated August 27, 2012, Dr. Duchowny stated:

I evaluated MIA RODRIGUEZ on July 25,

2012. . . . In S UMMARY, Mia's neurological

examination is significant for a mild to

moderate left spastic hemiparesis affecting

the arm greater than the leg. There is no

evidence of a visual field deficit and her

higher cognitive function is assessed at age

level.

The m edical records sent on June 19, 2012

revel that the mother was febrile in labor

and diagnose d with chorioamnionitis. She

was placed on triple intravenous antibiotics

at Jackson South Hospital. Apgar scores

were 9 and 9 at 1 and 5 minutes and there

was no evidence of postnatal complication.

Placental pathology reveals findings

consistent with a 3rd trimester placenta but

findings consistent with chorioamnionitis

were not reported.

I do not believe that Mia should be

considered for compensation within the NICA

statute. She has normal mental functions

for age and there are no findings from her

history to suggest that hemiparesis was a

consequence of either mechanical injury or

oxygen deprivation in the course of labor or

delivery. More likely, Mia's hemip aresis is

due to a right porencephalic cyst which was

likely acquired due to cerebrovascular

accident in utero prior to the onset of

labor.

As such, it is my opinion that MIA

RODRIGUEZ'S left hemiparesis is not due to

oxygen deprivation or mechanical inju ry

occurring during the course of labor,

delivery or the immediate post - delivery

period in the hospital during the birth of

MIA RODRIGUEZ.

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 Dr. Willis and Dr. Duchowny. The opinions of

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

neurological injury due to oxygen deprivation or mechanical

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

are credited.

CO NCLUSIONS OF LAW

6. The Division of Administrative 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 c ompensation, 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 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

service of a complete claim . . . in wh ich 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 dispu tes 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 r esponsibility, 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 demonstrated, to the

satisfaction of the admin istrative 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 presump tion 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

resuscitation in the immediate postdel ivery

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 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 delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

11. Th e 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 period in a hospital, which

renders the i nfant permanently and

substantially mentally and physically

impaired.

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

Mia did not sustain an injury to the brain or spinal cord caused

by oxygen deprivation or mechanical injury occurring in the

c ourse of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital. Therefore, Mia is not

eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that th e Petition filed by

Melissa Calderon and Dennis Rodriguez, on behalf of and as

parents and natural guardians of Mia Rodriguez, is dismissed

with prejudice.

DONE AND ORDERED this 7th day of December , 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 wit h the Clerk of the

Division of Administrative Hearings

this 7th day of December , 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 6809)

Melissa Calderon

Dennis Rodriguez

No. 29

13816 Southwest 142nd Avenue

Miami, Florida 33186

(Certified Mail No. 7011 1570 0001 1540 6793)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7012 1640 0000 7865 0872)

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 1640 0000 7865 0889)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1640 0000 7865 0896 )

Elizabeth Dude k, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7865 0902 )

Jackson South Community Hospital

9333 Southwest 152nd Street

Palmetto Bay , Florida 33157

(Certified No. 70 12 1640 0000 7865 0919)

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. 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. 2 d 299

(Fla. 1st DCA 1992).