13-000182N Vanessa Alvarez And Nelson Santiago, On Behalf Of And As Parents And Natural Guardians Of Brandon Santiago, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, August 23, 2013.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANESSA ALVAREZ AND NELSON

SANTIAGO, on behalf of and as

parents and natural guardians of

BRANDON SANTIAGO, a minor ,

Petitioners ,

vs. Case No. 13 - 0182N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIA TION ,

Respondent .

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury C ompensation Association (NICA), on July 10,

2013.

STATEMENT OF THE CASE

On January 11, 2013 , Petitioners, Vanessa Alvarez and

Nelson Santiago , on behalf of and as parents and natural

guardians of Brandon Santiago (Brandon ), a minor, filed a

Petition for Be nefits 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 (Plan).

The Petition name d Shereen Oloufa , M.D., and Carlos Dieguez,

M.D., as the physician s providing obstetric services at the birth

of Brandon at Health Central , located in Ocoee , Florida.

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

2013 . DOAH served a copy o f the Petition on Health Central on

January 22 , 2013. Dr. Dieguez and Dr. Oloufa w ere served cop ies

of the Petition on January 22 , 2013. As of the date of th is

Summary Final Order of Dismissal, Dr. Dieguez, Dr. Ol O ufa, and

Health Central have not p etitio ned to intervene in this

proceeding.

On July 10 , 2013, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. A response t o the motion was due

to be filed on July 22 , 2013. No response was filed. On

August 1, 2013, an Order was entered requiring Petitioners to

show cause on or before August 19, 2013, why the motion should

not be granted. As of the date of this Summary Fina l Order of

Dismissal, Petitioners have filed no response to the motion for

summary final order.

FINDINGS OF FACT

1. Brandon Santiago was born on January 28, 2008 , at Health

Central in Ocoee , Florida. Brandon weighed 2, 750 g rams at birth.

2. NICA retain ed Donald C. Willis, M.D., as its expert in

maternal fetal medicine. After having reviewed the medical

records of Brandon and his mother, Dr. Willis opined in an

affidavit dated June 26, 2013, as follows:

The fetal heart rate (FHR) monitor tracing

during labor was not available for review.

However, the operative report stated

Ðrepetitive variable decelerations to the

60Ós " were present. Cesarean section

delivery was done for the abnormal FHR

pattern and failure to progress in labor.

Amniotic fluid was c lear at delivery.

Birth weight was 2,750 grams. The newborn

was not depressed. Apgar scores were 7/9/9.

Cord blood gas did not suggest acidosis. The

pH was 7.26 with abase [sic] excess of only

- 3. Decreased fetal tone was present after

birth and att ributed to maternal MgS04

administration during labor.

The baby had an uneventful hospital course

and was discharged home two days after birth.

Subsequently, the baby was noted to have poor

muscle tone and developmental delay. Genetic

evaluation was don e but no obvious genetic

condition was identified.

In summary, Cesarean section was done for

abnormal FHR pattern. The baby was not

depressed at birth. Decreased muscle tone

was noted, but otherwise the newborn hospital

course was uneventful. The baby was

discharged home with the mother two days

after birth. These findings do not suggest

oxygen deprivation during the birthing

process. There was no apparent obstetrical

event that resulted in loss of oxygen or

mechanical trauma to Brandon SantiagoÓs bra in

during labor, delivery, or the immediate post

delivery period.

3 . NICA retained Michael S. Duchowny , M.D., as its medical

expert in pediatric neurology. Dr. Duchowny examined Brandon and

reviewed his medical records. In an affidavit dated July 9 ,

201 3, Dr. Duchowny opined as follows:

BrandonÓs neurological examination reveals

evidence of severe motor delay with virtually

no progress past the newborn level. This

disorder affects all limbs in a symmetric

fashion and has likely compromised his bulbar

mu sculature, as well. Cognitive testing is

difficult to assess due to the profound motor

impairment.

A review of the medical records confirms

his motherÓs impression of only transient

difficulties at birth and in fact, Brandon

was born only with a brief pe riod of absent

respirations which responded immediately in

the delivery room. His Apgar scores were 7,

9, 9 at 1, 5, and 10 minutes and BrandonÓs

hospital course stabilized rapidly allowing

him to be discharged on the second day of

life. These facts do n ot support the

acquisition of a neurological injury to the

brain or spinal cord due to oxygen

deprivation or mechanical injury during labor

or delivery. While Brandon does evidence a

substantial motor impairment, he is likely

suffering from an unknown neu romuscular

disorder. The history of seizures obviously

suggests that the underlying diagnosis also

involves the central nervous system and is

therefore more complex, but his caretakers

have so far been unable to ascertain a

definitive diagnosis.

* * *

It is my opinion that BRANDON SANTIAGO

does have a substantial motor impairment.

However, I do not regard BrandonÓs

neurological presentation as consistent with

a neurological injury to the brain or spinal

cord acquired due to oxygen deprivation o r

mechanical injury occurring during the course

of labor, delivery, or the immediate post -

delivery period in the hospital during the

birth of BRANDON SANTIAGO. I, therefore, do

not believe that BRANDON SANTIAGO is

compensable within the NICA program.

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

to the opinions of Dr. Duchowny and Dr. Willis that Brandon did

not suffer a neurological injury due to oxygen deprivation or

mechanical injury during labor , delivery , or resuscitation in the

immedi ate post - delivery 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 Le gislature "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 repre sentative,

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 servi ce

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 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 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 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 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 physical ly 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 resus citation

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 hospita l.

§ 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

sing le 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 i n a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

Brandon 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 during resuscitation in the

immediate post - delivery period, which resulted in substantial and

permanent mental and physical impairments. Therefore, Brandon is

not eligible for benefits unde r the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Vanessa Alvarez and

Nelson Santiago, on behalf of and as parents and natural

guardians of Brandon Santiago , is dismissed wi th prejudice.

DONE AND ORDERED this 23rd day of August , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee P arkway

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 23rd day of August , 2013 .

COPIES FURNISHED:

( V ia certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7013 1090 0002 4071 3718)

Vanessa Alvarez

c/o Nelson Santiago

1314 Fettler Way

Winter G arden, Florida 34787

(Certified Mail No. 7013 1090 0002 4071 3725)

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

(Certified Mail No. 7013 1090 0002 4071 37 49 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 1090 0600 0002 2576 5637)

Elizabeth Dudek, Secretary

Health Quality Assurance

Ag ency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 0600 0002 2576 5644)

Shereen Oloufa, M.D.

Suite 387

10000 West Colonial Drive

Ocoee, Florida 34761 - 3435

(Certified Mail No. 7013 06 00 0002 2576 5651)

Health Central Hospital

10000 West Colonial Drive

Ocoee, Florida 34761

(Certified Mail No. 7013 0600 0002 2576 0670 )

C arlos Dieguez, M.D.

Suite 387

10000 West Colonial Drive

Ocoee, Florida 34761 - 3435

( Certified Mail No. 7013 0600 0002 2576 0687)

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

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).