12-003999N Lizbeth And Edgardo Caraballo, On Behalf Of And As Parents And Natural Guardians Of Luis Caraballo, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, February 21, 2013.

Summary: Child's birth weight was less than minimum required of a single gestation (2,500 grams) under the Florida Birth-Related Neurological Injury Compensation Plan. Motion for Summary Final Order of Dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIZBETH AND EDGARDO CARABALLO, )

on behalf of and as parents and )

natural guardians of LUIS )

CARABALLO, a minor , )

)

Petitioners , )

)

vs. ) Case No. 12 - 3999N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION , )

)

Respondent, )

)

and )

)

PETER PERRY, M.D., AND )

PHYSICIAN ASSOCIATES, LLC, AND )

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

ARNOLD PALMER HOSPITAL AND )

WINNIE PALMER HOSPITAL, )

)

Intervenors . )

)

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

February 5, 2013.

STATEMENT OF THE CASE

On December 13, 2012, Petitioners, Lizbeth Caraballo and

Edgardo Caraballo, on behalf of and as parents and natural

guardians of Luis Caraballo (Luis), a minor, filed a Petition

Under Protest Pursuant to Florida Statutes Sectio n 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 the following physicians who provided o bstetric

services for the birth of Luis: Peter Perry, M.D.; Javier Pena,

M.D.; Virgil Davila, M.D.; Hector Ramirez, M.D.; and

Stephen Carlan, M.D. The Petition stated that Luis was born at

Arnold Palmer Hospital, in Orlando, Florida.

DOAH served NICA and Dr. Ramirez with copies of the

Petition on December 21, 2012. DOAH served a copy of the

Petition on Dr. Davila on December 20, 2012. On December 28,

2012, DOAH received a receipt from the United States Postal

Service (USPS) showing that the Petition had been served on

Arnold Palmer Hospital. Dr. Carlan received a copy of the

Petition on December 24, 2012. On December 18, 2012, DOAH sent

a copy of the Petition to Dr. Pena by United States certified

mail. DOAH did not receive a receipt from the USPS sho wing that

a copy of the Petition had been received by Dr. Pena. On

February 7, 2012, another copy of the Petition was sent to

Dr. Pena by United States certified mail. On February 19, 2013,

DOAH received a receipt from the USPS that a copy of the

Petitio n had been received by Dr. Pena .

On December 27, 2012, Dr. Perry and Physician Associates,

LLC, filed a Petition for Leave to Intervene. By Order dated

January 9, 2013, Dr. Caldera - Nieves and Physician Associates,

LLC, were granted leave to intervene.

On December 31, 2012, Orlando Health, Inc. d/b/a Arnold

Palmer Hospital and Winnie Palmer Hospital filed a Motion to

Intervene. By Order dated January 17, 2013, the motion was

granted.

On February 5, 2013, NICA filed a Motion for Summary Final

Order, request ing that a Summary Final Order be entered finding

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

requisite minimum statutory birth weight as required by section

766.302(2), Florida Statutes.

As of the date of this Summary Final Order of D ismissal,

neither Petitioners nor Intervenors have filed a response to the

Motion for Summary Final Order.

FINDINGS OF FACT

1. Luis Caraballo was born on July 2, 2005, at Arnold

Palmer Hospital in Orlando, Florida. He was a single gestation.

2. Based o n his birth certificate , Luis weighed five

pounds at birth. Five pounds equates to 2,267.96 grams. There

is no dispute that Luis did not weigh at least 2,500 grams.

CONCLUSIONS OF LAW

3. The Division of Administrative Hearings has

jurisdiction over t he parties to and the subject matter of these

proceedings. §§ 766.301 - 766.316, Fla. Stat.

4. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" rel ating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

5. 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 D OAH.

§§ 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 rel ating

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.

6. NICA has d etermined that Luis does not have a claim

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.

7. In ruling on the motion, 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 administrative law

judge, that the infant h as 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).

§ 766.309(1), Fla. Stat.

8. 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 spi nal 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 infant permanently and

substantially mentally and physically

impaired.

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

Luis was a single gestation and did not weigh at least 2,500

grams at birth. Thus, Luis has not sustained a birth - related

neurological injury because he did not meet the minimum

statutory weight as set forth in the definition of "birth -

related neurological injury," in section 766.30 2(2).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Petition filed by

Lizbeth Caraballo and Edgardo Caraballo, on behalf of and as

parents and natural guardians of Luis Caraballo, is dismissed

with pre judice.

DONE AND ORDERED this 21st day of February , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 21st day of February , 2013 .

COPIES FURNISHED :

(Via Certified Mail)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7012 1640 0000 7864 0217)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 0224)

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 1640 000 0 7864 0231)

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 1640 0000 7864 0248)

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 1640 0000 7864 0255)

Alejandro Javier Pena, M.D.

The Women's Center

Suite 205

1118 South Orange Avenue

Orlando, Florida 32806

(Cert ified Mail No. 7012 1640 0000 7864 0262)

Virgil Davila, M.D.

7416 Red Bug Lake Road

Oviedo, Florida 32765

(Certified Mail No. 7012 1640 0000 7864 0279 )

Stephen Carlan, M.D.

83 West Miller Street

Orlando, Florida 32806

(Certified Mail No. 7012 1640 0000 7864 0286)

Hector Ramirez, M.D.

Suite 606

2225 Ponce Bypass Edificio Parra

Ponce, Puerto Rico 00717

(Certified Mail No. 7012 1640 0000 7864 0293)

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 7864 0309 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 0316 )

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 co py, 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).