12-003397N Petra Crespo And Alexander G. Soriano, On Behalf Of And As Parents And Natural Guardians Of Alexander Soriano, Jr., A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, April 29, 2013.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETRA CRESPO AND ALEXANDER G. )

SORIANO, on behalf of and as )

parents and natural guardians )

of ALEXANDER SORIANO, JR., a )

minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 3397N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENS ATION ASSOCIATION , )

)

Respondent, )

)

and )

)

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

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES, PENNY A. DANNA, )

M.D., AND PHYSICIAN ASSOCIATES, )

LLC, )

)

Intervenor s . )

)

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

A pril 22 , 2013.

STATEMENT OF THE CASE

On October 16, 2012, Petitioners, Petra Crespo and

Alexander G. Soriano, on behalf of and as parents and natural

guardians of Alexandra G. Soriano, Jr. (Alexander), a minor,

filed a Petition for Benefits Pursuant to Fl orida Statute

Section 766.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan).

The Petition named Norman L. Lamberty , M.D., as the

physician providing obstetric services at the birth of Alexander

at Winnie Palmer Hospital in Orlando, Florida.

DOAH served NICA with a copy of the Petition on October 18,

2012. DOAH served Dr. Lamberty with a copy of the Petition on

Octobe r 19, 2012.

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

Palmer Hospital for Women & Babies (Winnie Palmer Hospital)

filed Intervenor's Motion to Intervene, which was granted by

Order dated November 26, 2012. On November 16, 2012, Penny A.

Da nna, M.D., and Physician Associates LLC , filed a Petition for

Leave to Intervene by Penny A. Danner, M.D. , and Physician

Associates LLC, which was granted by Order dated November 29,

2012.

NICA filed a Motion for Summary Final Order, asserting that

Alex ander did not sustain a "birth - related neurological injury"

as that term is defined in section 766.302(2), Florida Statutes.

NICA represented in the motion that Petitioners and Intervenors

are accepting NICA's denial of benefits under the Plan and have

no objections to the granting of the Motion for Summary Final

Order.

FINDINGS OF FACT

1. Alexander Sor iano born on July 3, 2011, at Winnie

Palmer Hospital in Orlando, Florida. Alexander weighed 3,442

grams at birth.

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

to review the medical records for Alexander. In a medical

report dated March 28, 2013, Dr. Willis opined the following:

In summary, the mother presented at term

with decreased fetal movement and an

abnormal FHR pattern. There was no mention

of the mother being in labor. Her cervix

was not dilated and consistent with no

active labor. Cesarean section delivery was

required. The baby was severely depressed

and had no detectable cardiac activity at

birth. The hospital course was consi stent

with hypoxic ischemic brain injury with

multisystem dysfunction, EEG and MRI studies

should [sic] brain injury.

Available information suggests the patient

was not in labor. Oxygen deprivation and

brain injury most likely occurred at some

time prior to delivery. Although the

hypoxia and brain injury may have continued

during delivery and into the post - delivery

period, the initial brain injury and

substantial damage were most likely already

present prior to birth.

3. NICA retained Michael S. Ducho wny, M.D., a Florida

board - certified pediatric neurologist to review the instant

claim and to conduct an examination of Alexander, and render an

opinion whether a birth - related neurological injury occurred.

In a report dated January 23, 2013, Dr. Duchowny opined:

While Alexander's birth history documents

severe problems resulting from his meconium

aspiration syndrome, his present

neurological examination reveals neither a

permanent nor substantial mental or physical

impairment. Essentially Alexander has d one

remarkably well despite his neonatal course,

and I would anticipate continued improvement

in the future. I regard his developmental

abnormalities as unrelated to the perinatal

circumstances and therefore not recommend

Alexander for inclusion in the NI CA program.

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

opinions, and Petitioners and Intervenors have no objection to

the issuance of a summary final order finding that the injury is

not compensable under Plan. The opinion of Dr. Willis that

Ale xander did not suffer a neurological injury due to oxygen

deprivation or mechanical injury during labor, delivery, or the

immediate postdelivery period is credited. Dr. Duchowny's

opinion that Alexander does not have a permanent and substantial

mental and physical impairment 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 Legisla ture "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 representa tive,

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

ser vice 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 tha t 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, Fl a. 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 neurological injury. If the

claimant has demonstrat ed, 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 physi cally

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

re suscitation 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 hosp ital.

§ 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 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, which

renders the infant permanently and

substantially mentally and physically

impaired.

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

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

caused by oxygen depriva tion or mechanical injury occurring in

the course of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital which resulted in a permanent

and substantial mental and physical impairment. Therefore,

Alexander is not eligible fo r benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Petition filed by Petro Crespo

and Alexander G. Soriano, on behalf of and as parents and

natural guardians of Alexander Soriano, Jr., is dismissed with

prejudice.

DONE AND ORDERED this 2 9 th day of April , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bui lding

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 2 9 th day of April , 2013 .

COPIES FURNISHED :

(Via Certified Ma il)

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 8356 1440)

Brian C. Lamb, Esquire

Martinez Manglar di, P.A.

540 North Semoran Boulevard

Orlando, Florida 32807

(Certified Mail No. 7012 1010 0001 8356 1457)

Joseph P. Menello, Esquire

Wicker, Smith, O'Hara, McCoy and Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802 - 2753

(Certified Mail No. 7012 10 10 0001 8356 1464)

Karissa L. Owens, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, P.A.

Suite 1500

201 East Pine Street

Orlando, Florida 32801

(Certified Mail No. 7012 1010 0001 8356 1471)

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7012 1010 0001 8356 1488)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Wa y, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1010 0001 8356 1495 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1010 0001 8356 1501 )

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 governe d

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 299

(Fla. 1st DCA 1992).