13-003880N Ofelia Santiago, Individually And On Behalf Of April Santiago, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, April 4, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OFELIA SANTIAGO, individually

and on behalf of APRIL SANTIAGO,

a minor,

Petitioner,

vs. Case No. 13 - 3880N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

__________________ _____________/

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 March 17, 2014.

STATEMENT OF THE CASE

On October 3, 2013, Petitioner, Ofelia Santiago,

individually and on behalf of April Santiago (April), a minor,

filed a Petition Under Protest Pursuant to Florida Statute

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

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named Dr. Sharon

Young Byun and Dr. Lindsey Malloch as the physicians providing

o bstetric services at the birth of April at Shands Teaching

Hospital in Gainesville, Florida.

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

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

October 14, 2013. On October 15, 2013, DOAH received a receipt

from the United States Postal Service showing that Dr. Byun had

been served with a copy of the Petition. On October 30, 2013,

DOAH received a receipt from the United States Postal Service

showing that Dr. Malloch had been served w ith a copy of the

Petition. As of the date of the Summary Final Order of

Dismissal, Shands Teaching Hospital, Dr. Byun, and Dr. Malloch

have not petitioned to intervene in this proceeding.

On March 17, 2014, NICA filed a Motion for Summary Final

Order, as serting that April did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. The motion was heard by telephonic

conference call on April 2, 2014, and counsel for Petitioner

advised that Petition er had no objection to the granting of the

motion.

FINDINGS OF FACT

1. April Santiago was born on November 23, 2011, at Shands

Teaching Hospital in Gainesville, Florida. April weighed in

excess of 2,500 grams at the time of her birth .

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

to review the medical records of April. Based on his review of

the medical records, Dr. Willis opined as follows:

In summary, the mother presented to the

hospital with an imminent delivery, which was

complicated b y a shoulder dystocia. The baby

was depressed at birth, but recovered

quickly. The umbilical cord blood pH of 7.19

was within normal limits and consistent with

no significant hypoxia during labor or

delivery. By DOL 2 the respiratory

depression had reso lved and the child was on

room air and taking oral feedings. The baby

was stable and would consider the post -

delivery resuscitation period to be over.

On DOL 5 the baby had a renal artery

thrombosis, which caused a hypertensive

crisis and resulted in cer ebral hemorrhage

and brain damage.

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 trauma at

t ime of delivery, which included a fractured

humerus and clavicle, but no trauma to the

spine or brain. The baby was stable and

would be considered out of the post - delivery

resuscitation period when a renal artery

thrombosis, hypertensive crisis and result ing

cerebral hemorrhage occurred.

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

to Dr. WillisÓ opinion that the claim is not compensable under

the Plan. The opinion of Dr. Willis that April did not sustain a

birth - related neurological injur y 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

p urpose 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.

6. 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 compl ete 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 al leged 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 o ther 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. I n 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 satis faction 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

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 hospital.

§ 766.3 09(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.

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.

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

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

caused by oxygen deprivation or mechanical inj ury during labor,

delivery, or resuscitation in the immediate post - delivery period;

thus, April has not sustained a birth - related neurological

injury. Therefore, April is not eligible for benefits under the

Plan.

CONCLUSION

Based upon the foregoing Findi ngs of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Ofelia Santiago,

individually, and on behalf of April Santiago, is dismissed with

prejudice.

DONE AND ORDERED this 4th day of April , 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 4th day of April , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christophe r Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7013 2630 0000 4176 6776 )

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certified Mail No. 7013 2630 0000 4176 6783)

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 2630 0000 4176 6790)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0000 1250 8426)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 3050 0000 1250 8433)

Lindsay Malloch, M.D.

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Mail No. 7012 3050 0000 1250 8440 )

Shands Hospital

Attention: Risk Management

1600 S outhwest Archer Road M301

Gainesville Florida 32610

(Certified Mail No. 7013 3050 0000 1250 8457 )

Sharon Young Byun, M.D.

1600 Southwest Archer Road

Gainesville, Florida 32610

(Certified Mail No. 7012 3050 0000 1250 8464 )

NOTICE OF RIGHT TO JUDI CIAL 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 pr oceedings 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 la w, 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).