12-003893N Jaime Ventura And Jahdai Rodriguez, On Behalf Of And As Parents And Natural Guardians Of Izael Jariel Ventura-Rodriguez, A Minor vs. Florida Birth- Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, March 27, 2013.

Summary: Child's birth weight was less than minimum required of a single gestation (2,500) under Florida Birth-Related Neurological Injury Compensation Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAIME VENTURA AND JAHDAI )

RODRIGUEZ, on behalf of and as )

parents and natural guardians )

of IZAEL JARIEL VENTURA - )

RODRIGUEZ, a minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 3893N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPEN SATION ASSOCIATION , )

)

Respondent, )

)

and )

)

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

WINNIE PALMER HOSPITAL FOR )

WOMEN & BABIES, )

)

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 20 ,

2013.

STATEMENT OF THE CASE

On November 20, 2012, P etitioners, Jaime Ventura and

Jahdai Rodriguez, on behalf of and as parents and natural

guardians of Izael Jariel Ventura - Rodriguez (Izael), a minor,

filed a Petition for Benefits Pursuant to Florida Statutes

Section 766.301 et seq. (Petition) with the Div ision of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named Timothy D.

O'Leary, M.D., as the physician who provided obstetric services

for t he birth of Izael. The Petition stated that Izael was born

at Winnie Palmer Hospital for Women and Babies, in Orlando,

Florida.

DOAH served NICA with a copy of the Petition on December 5,

2012. DOAH served a copy of the Petition on Dr. O'Leary on

Februar y 11, 2013. On December 13, 2012, Orlando Health, Inc.,

d/b/a Winnie Palmer Hospital for Women and Babies filed a

Petition for Leave to Intervene, which was granted by Order dated

January 3, 2013.

On March 20, 2013, NICA filed a Motion for Summary Final

O rder, requesting that a s ummary f inal o rder be entered finding

that the claim was not compensable because Izael did not meet the

requisite minimum statutory birth weight as required by section

766.302(2), Florida Statutes. On March 20, 2013, the parties

f iled a Joint Stipulation of Facts, in which the parties

stipulated, among other facts, that Izael's birth weight was

935.5 grams. The parties' Joint Stipulation of Facts have been

incorporated in this Summary Final Order of Dismissal.

FINDINGS OF FACT

1. Jamie Ventura and Jahdai Rodriguez are the parents and

natural guardians of Izael.

2. Izael was born on December 26, 2010, at Winnie Palmer

Hospital for Women and Babies in Orlando, Florida.

3. Timothy D. O'Leary provided obstetrical services during

the delivery of Izael. Dr. O'Leary is a participating physician

as defined in section 766.302(7).

4. Izael weighed 935.5 grams at birth.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject mat ter 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 claims" relating to births

occurring on or a fter 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 information relating to

the issue of whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat. In the instant case,

Petitioners have filed a Petition under protest, stating that

they are not seeking any benefits under the Plan.

8. NICA has determined that Izael does not have a cla im

that is compensable under the Plan and has filed a Motion for

Summary Final Order, requesting that an order be entered finding

that the claim is not compensable.

9. In ruling on the motion, the Administrative Law Judge

must make the following determina tion 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 inj ury

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 de fined in s. 766.303(2).

§ 766.309(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 imm ediate 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

Izael did not weigh at least 2,500 grams at birth. Thus, Izael

h as not sustained a birth - related neurological injury because

Izael did not meet the minimum statutory weight as set forth in

the definition of "birth - related neurological injury," in section

766.302(2).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Jaime Ventura and

Jahdai Rodriguez, on behalf of and as parents and natural

guardians of Izael Jariel Ventura - Rodriguez, is dismissed with

prejudice.

DONE AND ORDERED this 27th 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

F ax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of March , 2013 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

I njury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0003 4462 1387)

Carl Rufus Pennington, Esquire

Carl Rufus Pennington, III, P.A.

Suite 609

320 North 1st Street

Jacksonville Beach, Flo rida 32250

(Certified Mail No. 7011 1570 0003 4462 1394)

Bradley Paul Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0003 4462 1400)

Timothy D . O'Leary, M.D .

MPM Facility Practice

83 West Miller Street

Orlando, Florida 32806

(Certified Mail No. 7011 1570 0003 4462 1417)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Fl orida 32399 - 3275

(Certified Mail No. 7011 1570 0003 4462 1424)

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 4462 14 31 )

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 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 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).