13-003325N Laudelina Ocasio And Ian Ocasio, On Behalf Of And As Parents And Natural Guardians Of Ian Ocasio, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 7, 2014.

Summary: Infant did not suffer injury to brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAUDELINA OCASIO AND IAN OCASIO,

on behalf of and as parents and

natural guardians of IAN OCASIO,

a minor ,

Petitioner ,

vs. Case No. 13 - 3325N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Res pondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

& BABIES, PHYSICIAN ASSOCIATES,

LLC, AND DOROTHY JEAN ODOM,

M.D.,

Intervenor s .

/

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

December 5, 2013.

STATEMENT OF THE CASE

On August 30, 2013, Petitioners, Laudelin a Ocasio and

Ian Ocasio, on behalf of and as parents and natural guardians of

Ian Ocasio (Ian), a minor, filed a Petition Under Protest

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 named Dorothy Odom, M.D., as the physician

providing obstetric services at the birth of Ian at Winnie Palmer

Hospital for Women an d Children in Orlando, Florida.

DOAH served NICA with a copy of the Petition on September 4,

2013. DOAH served Dr. Odom with a copy of the Petition on

September 7, 2013. DOAH received a return receipt from the

United States Postal Service on September 23 , 2013, showing that

Winnie Palmer Hospital for Women and Children had been served

with a copy of the Petition.

On September 17, 2013, Orlando Health, Inc. , d/b/a Winnie

Palmer Hospital for Women and Babies, Physicians Associates, LLC ,

and Dr. Odom filed a Petition for Leave to Intervene, which was

granted by Order dated October 1, 2013.

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

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

neurological injury" as that term is defined in sect ion

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

that Petitioners had no objection to the granting of the motion.

As of the date of this Summary Final Order of Dismissal, the

Intervenors have not filed a response to the Motion for Summary

Final Order.

FINDINGS OF FACT

1. Ian Ocasio was born on April 20, 2010, at Winnie Palmer

Hospital for Women and Children in Orlando, Florida. Ian weighed

2,749 grams at birth.

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

to review the med ical records for Ian. In a medical report dated

September 20, 2013, Dr. Willis opined:

In summary, the baby was delivered by

Cesarean section due to preterm labor and a

recent genital herpes outbreak. Herpes

cultures from the baby were negative. There

w as no fetal distress during labor. The baby

was not depressed at birth and did not

require any resuscitation. Umbilical cord

blood gas was not done. Apgar scores were

normal. There was no apparent obstetrical

event that resulted in loss of oxygen or

me chanical trauma to the babyÓs brain during

labor, delivery or the immediate post

delivery period.

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

opinions, and Petitioners have no objection to the issuance of a

summary final order finding that the inj ury is not compensable

under the Plan. The opinion of Dr. Willis that Ian did not

suffer a neurological injury due to oxygen deprivation or

mechanical injury during labor, delivery, or the immediate post -

delivery period is credited.

CONCLUSIONS OF LAW

4. The Division of Administrative 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, irrespe ctive of fault, for

birth - 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 comp ensation 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 respon se 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 - r elated 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.

8. In discharging this responsibility, the ad ministrative

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

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

hos pital; 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 hospital.

§ 766.309(1), Fla. Stat. An award may be sustain ed 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.

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 mentally and

physically impaired.

10. The evidence, which is not refuted, established that Ian

did not sustain an injury to the brain or spinal cord caused by

oxygen deprivation or mechanical injury occurring in the course of

labor, delive ry, or resuscitation in the immediate post - delivery

period in a hospital. Therefore, Ian 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 Lau delina Ocasio and

Ian Ocasio on behalf of and as parents and natural guardians of

Ian Ocasio, is dismissed with prejudice.

DONE AND ORDERED this 7th day of January , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BEL YEU 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 Adm inistrative Hearings

this 7th day of January , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 3230 8

(Certified Mail No. 7013 1710 0000 1621 0639)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7013 1710 0000 1621 0646)

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 1621 0653)

Andrea L. Diederich, Esquire

Marshall Dennehey Warner

Coleman and Goggin

315 East Robinson St reet, Suite 550

Orlando, Florida 32801

(Certified Mail No. 7013 1710 0000 1621 0660)

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 1 710 0000 1621 0677)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 1710 0000 1621 0684)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Re view 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

co mmenced 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

cler k 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).