12-003273N Valerie Gonzalez, On Behalf Of And As Parent And Natural Guardian Of Jordan Gonzalez, A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, March 20, 2013.

Summary: Infant did not sustain injury to 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 hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIE GONZALEZ, on behalf of )

and as parent and natural )

guardian of JORDAN GONZALEZ, a )

minor , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3273N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respon dent, )

)

and )

)

TENET HEALTHSYSTEM NORTH SHORE, )

INC., d/b/a NORTH SHORE MEDICAL )

CENTER, )

)

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 March 4,

2013.

STATEMENT OF THE CASE

On October 4, 2012, Petitioner, Valerie Gonzalez, on b ehalf

of and as parent and natural guardian of Jordan Gonzalez

(Jordan), a minor, filed a Petition Under Protest Pursuant to

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

Division of Administrative Hearings (DOAH) for a determination

of compe nsability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named

Ramon Hechavarri a , M.D., as the physician providing obstetric

services at the birth of Jordan at North Shore Medical Center in

Miami, Florida.

DOAH served NICA with a copy of the Petition on October 10,

2012. DOAH served copies of the Petition on North Shore Medical

Center and Dr. Hechavarri a on October 12, 2012.

On November 27, 2012, Tenet Healthsystem North Shore, Inc.,

d/b/a North Shore Medical Center filed a petition to intervene,

which was granted by Order dated December 14, 2013.

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

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. NICA represented in a Response to

Order of February 19, 2013, that the parties agreed that a

hearing was not necessary and the Petitioner and Intervenor

concurred the injury was not compensable.

FINDINGS OF FACT

1. Jordan Gonzalez was born on May 29, 2008, at North

Shore Medical Center in Miami, Florida. Jordan weighed 2,530

grams at birth.

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

to review the medical records for Jordan and his mother. In an

aff idavit dated February 19, 2013, Dr. Willis opined the

following within a reasonable degree of medical probability:

It is my opinion that in summary, fetal

abnormalities were identified by ultrasound

during pregnancy. The baby was delivered by

Cesarean sec tion due to the development of

fetal ascites. The mother was not in labor.

The baby had several congenital

abnormalities including hypoplastic lungs,

single umbilical artery, ascites, dilated

ventricles in the brain, agenesis of the

corpus callosum and a small phallus. MRI

did not identify findings suggestive of

hypoxic brain injury.

As such, it is my opinion that there was no

apparent obstetrical event that resulted in

loss of oxygen or mechanical trauma to the

baby's brain during delivery or during

re suscitation in the immediate post delivery

period in the hospital. The mother was not

in labor. The fetus had known abnormalities

identified by ultrasound during pregnancy.

It is most likely the baby's brain

abnormalities are congenital and not related

to oxygen deprivation at birth.

3. Jordan was examined and evaluated by Michael Duchowny,

M.D. (Dr. Duchowny), on January 30, 2013. In an affidavit dated

February 27, 2013, Dr. Duchowny found the following on his

examination of Jordan:

It is my opinion that the findings from the

examination are consistent with both a

substantial mental and motor impairment.

Jordan is functioning at approximately age

2 - 3 month level and in addition to his

global development delay manifests

microcephaly, dynamic hypotonia and dynamic

static hypotonia with hyperreflexia and

pathological reflexes. However his

examination reveals multiple congenital

anomalies which together with the

neuroimaging findings suggest that Jordan's

neurological deficits were most likely

acquired p rior to birth.

As such, it is my opinion that there is no

evidence from his postnatal course or from

his present physical fi n dings to indicate

that Jordan Gonzale z sustained an hypoxic or

ischemic insults in the course of labor,

delivery or the immediate neonatal period.

I therefore am not recommending Jordan for

inclusion into the NICA program.

4. A review of the file does not show any contrary

opinions to those of Dr. Willis and Dr. Duchowny. The opinions

of Dr. Willis and Dr. Duchowny that Jordan di d not suffer a

neurological injury due to oxygen deprivation or mechanical

trauma during labor, delivery, or resuscitation in the immediate

postdelivery period are 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 clai ms" 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 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 informat ion 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 t he 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.

9. In discharging this responsibility, the Administrative

Law Judge must make the following determinati on 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 has sustained a brain

or spinal cord injur y 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 birth - related

neurological injury as defi ned 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 certified

nurse midwife in a teaching hospi tal

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.

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 cause d 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 mentally and physically

impaired.

11. Th e evidence, which is not refuted, established that

Jordan 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 per iod in a hospital. Therefore, Jordan 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 filed by

Valerie Gonzalez on behalf of and as parent and natura l guardian

of Jordan Gonzalez, is dismissed with prejudice.

DONE AND ORDERED this 20th day of March , 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 20th day of March , 2013 .

COPIES FURN ISHED :

(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 0003 4463 8989)

Maria D. Tejedor , Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7011 1570 0003 4463 8996)

William F. Fink, Esquire

Wicker, Smith, O`Hara,

McCoy and Ford, P.A.

Suite 800

2800 Ponce de Leon Boulevard

Coral Gab les, Florida 33134

(Certified Mail No. 7011 1570 0003 4463 9009)

D avid W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7011 1570 0003 4463 9016)

Ramon Hechavarria, M.D.

241 East 49th Street

Hialeah, Florida 33013

(Certified Mail No. 7011 1570 0003 4463 9023)

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 4463 9030)

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 4463 9047 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Revi ew 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 comm enced 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).