12-003839N Sonia Rodriguez And Israel Rodriguez, On Behalf Of And As Parents And Natural Guardians Of Elvin Rodriguez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 8, 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 post-delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONIA RODRIGUEZ AND ISRAEL )

RODRIGUEZ, on behalf of and as )

parents and natural guardians )

of ELVIN RODRIGUEZ, a minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 3839N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASS OCIATION , )

)

Respondent . )

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Flor ida Birth - Related

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

2013.

STATEMENT OF THE CASE

On November 21, 2012, Petitioners, Sonia Rodriguez and

Israel Rodriguez, as parents and natural guardians of

Elvin Rodriguez (Elvin), a minor, f iled a Petition U nder Protest

Pursuant to Florida 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 (Pl an). The Petition

named John Davis, M.D.; Virginia Su, M.D.; and Kathleen Davis,

M.D., as the physicians providing obstetric services at the

birth of Elvin at Shands Hospital in Gainesville, Florida.

DOAH served NICA with a copy of the Petition on

Decembe r 19, 2012. Dr. John Davis was served a copy of the

Petition on December 20, 2012. Shands Hospital was served a

copy of the Petition on February 12, 2013. C opies of the

Petition were sent by certified United States mail to

Dr. Kathleen Davis and Dr. Vir ginia Su at the addresses provided

in the Petition, but the copies of the Petition w ere returned to

DOAH as undeliverable.

NICA filed a Motion for Summary Final Order, asserting that

Elvin 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 counsel for Petitioner s had

no objection to the granting of the motion. As of the date of

this Summary Final Order, Dr. John Davis, Dr. Kathleen Davis,

Dr. Su, and S hands Hospital have not petitioned to intervene in

this proceeding.

FINDINGS OF FACT

1. Elvin Rodriguez was born on July 25, 2008, at Shands

Hospital in Gainesville, Florida. Elvin weighed 4,685 grams at

birth.

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

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

February 27, 2013, Dr. Willis opined the following:

Based on my education and experience, it is

my professional opinion, within a reasonable

degree of medical probability, th at there

was an apparent obstetrical event that

resulted in injury to Elvin Rodriguez's

brachial plexus (Erb's palsy) but no oxygen

deprivation or mechanical injury to the

baby's brain or spinal cord occurred during

labor or delivery.

3. Dr. Willis attac hed a report of his findings to his

deposition. He further stated in his report:

In summary, there was no fetal distress

during labor. Delivery was complicated by

shoulder dystocia related to maternal

Diabetes and fetal macrosomia. The initial

Apgar sco re was low due to the difficult

delivery, but the baby responded to

resuscitation. The umbilical cord blood pH

was above 7.0. The baby suffered an Erb's

palsy from the shoulder dystocia, but there

was no apparent brain injury.

4. A review of the file d oes not show any contrary

opinion, and Petitioner s ha ve 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 Elvin did not suffer

a neurological injury due to oxygen de privation or mechanical

injury during labor and delivery 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. Th e 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 i nfant, 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 Pl an, 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), F la. 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 claim has

be en 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 neurological inj ury. 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 permanently

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 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 hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the imm ediate 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 b y 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 resuscitatio n 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

Elvin did not sustain an injury to the brain or spina l 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. Therefore, Elvin 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 Sonia Rodriguez

and Israel Rodriguez and as parents and natural guardians of

Elvin Rodriguez, is dismissed with prejudice.

DONE AND ORDERED this 8th day of Mar ch , 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 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March , 2013 .

COPIES FURNISHED :

(Via Certified Mail)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North M ills Avenue

Orlando, Florida 32803

(Certified Mail No. 7011 1570 0003 4463 9924)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certifie d Mail No. 7011 1570 0003 4463 9931)

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. 7011 1570 0003 4463 9948)

Am i e 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 9955 )

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 9962 )

Virginia Su, M.D.

Suite 110

1560 North 115th Street

Seattle, Washington 98133

(Certified Mail No. 70 11 1570 0003 4463 9979)

University of Florida Shands Hospital

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Mail No. 70 11 1570 0003 4463 9986)

Kathleen Davis, M.D.

UF College of Medicine

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certifie d Mail No. 70 11 1570 0003 4463 9993)

John Davis, M.D.

Shands at the University of Florida

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Mail No. 70 11 1570 0003 446 0005 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final or der 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 n otice of a dministrative

a ppeal with the a gency c lerk 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 appropria te 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).