13-002000N Yusleidy Atorresgasti And Dannel Ortega, On Behalf Of And As Parents And Natural Guardians Of Dannel Ortega, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 19, 2014.

Summary: Child is not permanently and substantially physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YUSLEIDY ATORRESGASTI AND DANNEL

ORTEGA, on behalf of and as

parents and natural guardians of

DANNEL ORTEGA, a minor ,

Petitioners ,

vs. Case No. 13 - 2000N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCI ATION ,

Respondent,

and

ADVENTIST HEALTH SYSTEM/SUNBELT,

INC., d/b/a FLORIDA HOSPITAL

CELEBRATION HEALTH; FLORIDA

HOSPITAL MEDICAL GROUP, INC.;

AND JENNIFER SWOBODA, M.D.,

Intervenors .

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on October 30, 2013.

STATEMENT OF THE CAS E

On May 24, 2013, Petitioners, Yusleidy Atorresgasti and

Dannel Ortega, on behalf of and as parents and natural guardians

of Dannel Ortega (Dannel), a minor, filed a Petition Under

Protest Pursuant to Florida Statute Section 766.301 et s eq .

(Petition) wit h the Division of Administrative Hearings (DOAH)

for a determination of compensability under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan). The

Petition named Jennifer Swob o da, M.D., and David Marcantel, M.D.,

as the physicians pr oviding obstetric services at the birth of

Dannel at Florida Hospital Celebration in Celebration, Florida.

DOAH served NICA with a copy of the Petition on May 31,

2013. DOAH served a copy of the Petition on Florida Hospital

Celebration Health on July 31, 2013. DOAH served copies of the

Petition on Dr. Swob o da and Dr. Marcantel on June 3, 2013. On

June 26, 2013, Adventist Health System/Sunbelt, Inc., d/b/a

Florida Hospital Celebration Health, Florida Hospital Medical

Group, Inc. (Florida Hospital), and Dr . Swoboda filed a Motion to

Intervene, which was granted by Order dated July 9, 2013. As of

the date of th is Summary Final Order of Dismissal, Dr. Marcantel

has not petitioned to intervene in this proceeding.

On October 30, 2013, NICA filed a Motion for S ummary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

On November 4, 2013, Petitioners filed PetitionersÓ Response

to RespondentÓs Motion for Summa ry Final Order and Motion to

Abate, requesting that RespondentÓs Motion for Summary Final

Order be abated until completion of discovery. On November 6,

2013, Intervenors filed IntervenorsÓ Motion to Defer Ruling or

Hearing on NICAÓs Motion for Summary Fin al Order, and Motion for

Extension of Time to Respond to NICAÓs Motion in Order to Allow

Intervenors Time to Complete Discovery. PetitionersÓ and

IntervenorsÓ motions were heard by telephonic conference call on

November 13, 2013, and an Order was entered on November 15, 2013,

extending the time to respond to RespondentÓs Motion for Summary

Final Order to February 17, 2014.

On February 17, 2014, Intervenors filed IntervenorsÓ

Response to NICAÓs Motion for Summary Final Order, stating that

they Ðtake no posi tion regarding NICAÓs pending Motion for Final

Summary Order. " Petitioners filed no further response to the

Motion for Final Summary Order.

FINDINGS OF FACT

1. Dannel O r tega was born on August 9, 2009, at Florida

Hospital in Celebration, Florida. Danne l weighed eight pounds

and 11 ounces at birth.

2. Raymond J. Fernandez, M.D. (Dr. Fernandez), was

requested by NICA to do an independent medical examination of

Dannel. Dr. Fernandez examined Dannel on September 10, 2013.

Based on his examination, Dr. Fe rnandez opined the following:

There is evidence for substantial mental

impairment characterized mainly by delay in

acquisition of expressive speech and

receptive language skills that will probably

be permanent, although I anticipate some

improvement. This is more likely than not

due to oxygen deprivation during labor,

delivery, and the immediate postdelivery

period of resuscitation. There is MRI

evidence of focal atrophy and gliosis within

a portion of the left parietal lobe, probably

due to ischemia resu lting in oxygen

deprivation. Ischemia is probably explained

on the basis of hypotension that required

pharmacologic support. However, there is no

evidence for motor impairment at this time

and there is no reason to suspect motor

impairment will become a problem for Dannel

in the future.

3. A review of the file does not show any contrary opinion.

The opinion of Dr. Fernandez that Dannel does not have a

permanent and substantial motor impairment is credited.

CONCLUSIONS OF LAW

4. The Division of Admi nistrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

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

purpose of providing compensation, irrespective of fault, for

bi rth - related neurological injury claims" relating to births

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

6. The injured infant, her or his personal representative,

parents, dependents, and next of kin may seek compensation under

the Pla n 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.

7. If NICA determines that the injury alleged in a claim is

a compensable birth - related neurological in jury, 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 ca se, 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.

8. In discharging this responsibility, the a dministrative

l aw j udge 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

su stained 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 certif ied 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 hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

admini strative 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.

9. 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

period in a hospital, which renders the

infant permanently and substantially mentall y

and physically impaired.

1 0 . The evidence, which is not refuted, established that

Dannel does not have a permanent and substantial motor

impairment; thus, Dannel has not sustained a birth - related

neurological injury because he is not permanently and

s ubstantially physically impaired. Therefore, Dannel 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

Yusleidy Atorre s gasti and Dannel Ortega on behalf of and as

parents and natural guardians of Dannel Ortega, is dismissed with

prejudice.

DONE AND ORDERED this 19th day of February , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrat ive Law Judge

Division of Administrative Hearings

The DeSoto Building

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

thi s 19th day of February , 2014 .

COPIES FURNISHED:

(via 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 2630 0000 4176 5700)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7013 2630 0000 4176 5717)

Eric P. Gibbs, Esquire

Estes, Ingram, Foels and Gibbs, P.A.

Post Office Bo x 4974

Orlando, Florida 32802 - 4974

(Certified Mail No. 7013 2630 0000 4176 5724)

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

(Certif ied Mail No. 7013 2630 0000 4176 5731)

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 2630 0000 4176 5748)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 2630 0000 4176 5755)

David Ashley Marcantel, M.D.

Suite 208

410 Celebration Place

Celebration, Florida 3 4747

(Certified Mail No. 7013 2630 0000 4176 5762)

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 pr oceedings 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 o rder 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 (Fl a. 1st DCA

1992).