13-002842N Nathalie Jorge, On Behalf Of And As Parent And Natural Guardian Of Yancel Peraza, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, February 7, 2014.

Summary: Infant did not sustain injury to brain or spinal cord caused by oxygen deprivation or mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATHALIE JORGE, on behalf of and

as parent and natural guardian

of YANCEL PERAZA, a minor ,

Petitioner ,

vs. Case No. 13 - 2842N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent,

and

J ORGE LONDOÑO, M.D., AND ORLANDO

HEALTH, INC., d/b/a WINNIE

PALMER HOSPITAL,

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 February 3, 2014.

STATEMENT OF THE CASE

On July 15, 2013, Petitioner, Nathalie Jorge, on behalf of

and as parent and natural guardian of Yancel Peraza (Yancel), a

minor, filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 et se q . (Petition) with the Division of

Administrative Hearings (DOAH) for compensation under the Florida

Birth - Related Neurological Injury Compensa tion Plan (Plan). The

Petition named Jorge Londoño, M.D., as the physician providing

obstetric services at the birth of Yancel at Winnie Palmer

Hospital in Orlando, Florida.

DOAH served NICA with a copy of the Petition on July 30,

2013. DOAH served a cop y of the Petition on Winnie Palmer

Hospital on July 31, 2013. DOAH served a copy of the Petition on

Dr. Londoño on August 7, 2013.

On August 23, 2013, Dr. Londoño and Orlando Health, Inc. ,

d/b/a Winnie Palmer Hospital filed a petition for leave to

interve ne, which was granted by Order dated September 10, 2013.

On February 3, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida St atutes. NICA represented in the motion

that counsel for Petitioner and counsel for Intervenors were

contacted and had no objection to the granting of the motion.

FINDINGS OF FACT

1. Yancel Peraza was born on April 1, 2009, at Winnie

Palmer Hospital in O rlando, Florida. Yancel weighed 3,525 grams

at birth.

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

to review the medical records for Yancel. In a medical report

dated November 27, 2013, Dr. Willis opined the following:

The newborn was not depressed. Apgar scores

were 8/9. No cord blood gas was done. No

resuscitation was required after birth. The

baby had a weak right arm and some mild

respiratory distress with grunting and

flaring. The respiratory distress resolved

shortly after birth.

Neurology consultation was obtained at one

day of age for evaluation of a weak right

arm. ErbÓs palsy was suspected. New born

hospital course was otherwise uncomplicated.

The baby was discharged home two days after

birth with Neurology follow - up sched uled for

reevaluation of the weak right arm.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

during labor, delivery, or the immediate post

delivery period. The baby did have a

brachial plexus injury, but no damage to the

spinal cord.

3. NICA retained Michael S. Duchowny, M.D. , to perform an

independent medical examination of Yancel. Dr. Duchowny examined

Yancel on September 25, 2013. In a medical report dated

September 25, 2013, Dr. Duchowny reported his findings and gave

the following opinion:

In summary, YancelÓs neurologic examination

is significant for a right ErbÓs (upper

brachial plexus) palsy involving the C5 and

C6 dermatomes. He has a preserved individual

finger d exterity and fine motor coordination

but is mechanically limited by a fixed elbow

contracture on the right. In contrast, there

are no other significant findings on the

neurologic examination.

Despite the absence of supplementary medical

records, YancelÓs neurological examination

today that is consistent with an ErbÓs palsy

of the upper cervical nerve roots

anatomically places his deficit outside the

central nervous system (brain and spinal

cord). For this reason, I do not believe

that Yancel should be co nsidered for

compensation within the NICA program.

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

and Petitioner and Intervenors have 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 Yancel

did not suffer a neurological injury due to oxygen deprivation or

mechanical injury during labor, delivery, or resuscitation in the

immediate postdelivery period is credited. The opinion of Dr.

Duchowny that Yancel has ErbÓs palsy, which is outside the

central nervous system, meaning that the injury does not involve

the brain or spinal cord, is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subj ect matter 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 after 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 whet her 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 aw ard 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 j udge 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 evide nce:

(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 physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whe ther 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

participatin g 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

administrative law judge concludes that the "infant has sustained

a birth - r elated 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 neurolo gical 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 mecha nical 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.

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

Yancel 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 resuscitation in the immediate

postdelivery period in a hospital. Therefore, Y ancel 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 Nathalie Jorge, on

behalf of and as parent and natural guardian of Yancel Peraz, is

di smissed with prejudice.

DONE AND ORDERED this 7th day of February , 2014 , 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

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of February , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenn ey Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7013 1710 0000 1321 1001)

Nathalie Jorge

203 Bedford Drive

Kissimmee, Flori da 34758

(Certified Mail No. 7013 1710 0000 1618 6576)

Jeremy T. Palma, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, PA

201 East Pine Street, Suite 1400

Post Office Box 4940

Orlando, Florida 32801

(Certified Mail No. 7013 1710 0000 1618 6583)

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. 7013 1710 0000 1618 6590)

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 1710 0000 1618 6606)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, M ail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 1710 0000 1618 6613)

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

766.3 11(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

w ithin 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. As s'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).