13-003879N Lurcrecia Alavez, Individually And On Behalf Of Bryan Alavez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, November 21, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LU R CRECIA ALAVEZ, individually

and on behalf of BRYAN ALAVEZ, a

minor,

Petitioner,

vs. Case No. 13 - 3879N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

___________________ ____________/

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

Novemb er 3, 2014.

STATEMENT OF THE CASE

On October 3, 201 3 , Petitioner, Lu r crecia Alavez,

individually and on behalf of Bryan Alavez (Bryan), a minor,

filed a Petition Under Protest Pursuant to Florida Statute

Section 766.301 et seq. (Petition) with the Divisio n of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named

Jerome Yan k owitz, M.D., and Kiran Rao, M.D., as the physicians

providing obstetrical services at the birth of Bryan on August 7,

2011, at Tampa General Hospital located in Tampa, Florida.

DOAH served NICA with a copy of the Petition on October 10,

2013. On October 15, 2013, DOAH received a return receipt from

the United States Postal Ser vice showing that Tampa General

Hospital had been served with a copy of the Petition. On

October 15, 2013, DOAH received return receipt s from the United

States Postal Service showing that Dr. Rao and Dr. Yankowitz had

been served with a copy of the Petiti on.

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

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. NICA represents in its Motion for

Summary F inal Order that Petitioner has no objection to the

granting of the motion. As of the date of this Summary Final

Order of Dismissal, no petitions to intervene have been filed by

Dr. Rao, Dr. Yankowitz, or Tampa General Hospital.

FINDINGS OF FACT

1. B ryan Alavez was born on August 7, 2011, at Tampa

General Hospital located in Tampa, Florida. Bryan weighed 4,590

grams at birth.

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

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

date d July 14, 2014, Dr. Willis opined as follows:

In summary, the mother had poorly controlled

Gestational Diabetes, which most likely

resulted in the large for gestational age

(macrosomic) newborn and resulting shoulder

dystocia. Umbilical cord blood gas wa s

within normal limits, suggesting the baby did

not have hypoxia during labor. However,

newborn depression occurred, most likely

related to shoulder dystocia. The Apgar was

0 at one minute. Chest compressions and bag

and mask ventilation were required a t birth.

The baby improved and was taken to the NICU

with respiratory depression requiring nasal

canula oxygen. A fractured humerus occurred

at time of shoulder dystocia delivery. The

baby did not have seizures. Encephalopathy

was not suspected. Imagin g studies of the

brain were not done.

The fetus did not suffer oxygen deprivation

or mechanical trauma to the brain during

labor. Some oxygen deprivation may have

occurred as a result of the shoulder

dystocia, as indicated by an Apgar score of 0

at one m inute. However, there is no

documentation that any significant brain

injury resulted from this possible oxygen

deprivation.

There was an apparent obstetrical event,

shoulder dystocia, but this does not appear

to have resulted in any significant loss of

o xygen or mechanical trauma to the babyÓs

brain during labor, delivery, or the

immediate post delivery period.

3. NICA retained Raymond J. Fernandez, M.D.

(Dr. Fernandez) , a pediatric neurologist, to examine Bryan and to

review his medical records. Dr. Fernandez examined Bryan on

September 15, 2014. In a medical report regarding his

independent medical examination of Bryan, Dr. Fernandez opined as

follows:

IMPRESSION:

Despite transient neurological depression

immediately after birth, there is no eviden ce

for substantial mental and motor impairment

due to oxygen deprivation or mechanical

injury of brain or spinal cord during labor,

delivery, or within the immediate

postdelivery period of resuscitation. This

opinion is based on record review and

clinical history and physical and

neurodevelopmental examination. There was no

suspicion o f perinatal encephalopathy while

in the NICU or after discharge. Imaging of

the brain and spinal cord has not been

necessary.

Bryan sustained a fracture of his left

hume rus as a complication of shoulder

dystocia and there was question of left

brachial plexus injury causing left arm

weakness. He appears to have subtle residual

left upper extremity proximal weakness. This

is due to mechanical injury of peripheral

nerves ( brachial plexus). It is not due to

oxygen deprivation or mechanical injury of

brain or spinal cord.

4. A review of the file in this case reveals that there

have been no expert opinions filed that are contrary to the

opinion of Dr. Willis that there was an apparent obstetrical

event, shoulder dystocia, but this event does not appear to have

resulted in any significant loss of oxygen or mechanical trauma

to the baby's brain during labor, delivery, or the immediate post

delivery period. Dr. WillisÓ opinion is credited. There are no

contrary expert opinions filed that are contrary to

Dr. FernandezÓs opinion that although Bryan appears to have

subtle residual left upper extremity proximal weakness, this is

due to mechanical injury to peripheral nerves, and i s not due to

oxygen deprivation or mechanical injury of the brain or spinal

cord. Dr. FernandezÓs opinion is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these pro ceedings.

§§ 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 766.3 05(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 bir th - 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 i njury 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 service s 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

participating physician in the cours e 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 - related neurological inju ry 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

inju ry 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 i n

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

Bryan did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury in the course

of labor, delivery, or resuscitation in the immediate post -

delivery period in a hospital. Therefore, Bryan 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 Lu r crecia Alavez,

on behalf of Bryan Al a vez, is dismissed with prejudice.

DONE AND ORDERED this 21st day of November , 20 14 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of November , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Inju ry Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9822)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(eSer ved)

(Certified Mail No. 7014 2120 0003 1048 9839)

Jeffrey P. Brock, Esquire

Smith Stout Bigman and Brock PA

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9846)

Amie Rice, Investigati on Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1048 9853)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1048 9860)

Jerome Yankowitz, M.D.

2 Tampa General Circle , Suite 4

Tampa, Florida 33606

(Certified Mail No. 701 4 2120 0003 1048 9877 )

Kiran Rao, M.D.

2 Tam pa General Circle

Tampa, Florida 33606

(Certified Mail No. 701 4 2120 0003 1048 9884 )

Tampa General Hospital

Attention: Risk Management

1 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 701 4 2120 0003 1048 9891)

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. Su ch 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

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 (Fla. 1st DCA

1992).