13-004175N Mayumi Perez, Individually And On Behalf Of Christopher Perez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, May 23, 2014.

Summary: Claim against NICA barred by statute of limitations. Infant did not sustain injury to brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in immediate post-delivery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAYUMI PEREZ, individually and

on behalf of CHRISTOPHER PEREZ,

a minor,

Petitioner,

vs. Case No. 13 - 4175N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

TAMPA OBSTET RICS, P.A., URMILA

J. PATEL, M.D., ADAM S. LEVINE,

M.D., AND ST. JOSEPH'S WOMEN'S

HOSPITAL,

Intervenors.

_______________________________/

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 May 8,

2014.

STATEMENT OF THE CASE

On October 22, 2013, Petitioner, Mayum i Perez, individually

and on behalf of Christopher Perez ( Christopher), 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 Inju ry Compensation Plan

(Plan). The Petition named Adam Scott Levine, M.D., and

Urmila Patel, M.D. as the physicians providing obstetric services

at the birth of Christopher on May 16, 2007, at St. JosephÓs

Medical Center located in Tampa, Florida.

DOAH se rved NICA with a copy of the Petition on October 28,

2013. DOAH served copies of the Petition on Dr. Patel,

Dr. Levine, and St. JosephÓs Medical Center by certified mail and

received receipts from the United States Postal on October 30,

2013, showing that the Petition had been received by Dr. Patel

and St. JosephÓs Medical Center. On November 4 , 2013, DOAH

received a receipt from the United States Postal Service showing

that Dr. Levine had been served with a copy of the Petition.

On November 13, 2013, Dr. Levine filed a Petition to

Intervene, which was granted by Order dated On December 2, 2013.

On November 14, 2013, Tampa Obstetrics, P.A., and Dr. Patel filed

a Petition and Motion to Intervene, which was granted by Order

dated December 3, 2013. On Decem ber 2, 2013, St. JosephÓs

WomenÓs Hospital filed a Petition and Motion to Intervene, which

was granted by Order dated December 17, 2013.

On May 8, 2014, NICA filed a Motion for Summary Final Order,

asserting that Christopher did not sustain a "birth - relat ed

neurological injury" as that term is defined in section

766.302(2), Florida Statutes, and that any claim for compensation

under the Plan is barred by the statute of limitations.

As of the date of this Summary Final Order of Dismissal, no

response has been filed by the Petitioners or by Intervenors.

FINDINGS OF FACT

1. Christopher Perez was born on May 16, 2007, at St.

JosephÓs Medical Center in Tampa, Florida. Christopher weighed

3,470 grams at birth.

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

to review the medical records for Christopher to determine

whether an injury occurred in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the

hospital due to oxygen deprivation or mechanical injury occurr ing

in the course of labor, delivery, or resuscitation in the

immediate post - delivery period. In a report dated December 6,

2013, Dr. Willis described his findings as follows:

In summary, there was no fetal distress

during labor. Cesarean section deliver y was

uncomplicated. The baby was not distressed

at birth and was taken from the delivery room

in his motherÓs arms. The baby was

transferred to the NICU at about seven hour s

of life due to temperature instability and an

elevated white blood count. Bloo d cultures

were negative. Newborn hospital course was

otherwise uncomplicated.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the baby's brain during labor,

delivery, or in the immediate post delivery

peri od .

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

neurologist, to examine Christopher and to review the medical

records of Christopher. On January 30, 2014, Dr. Fernandez

examined Christopher. Dr. Fernandez made the following findings:

There was no evidence on examination for

substantial physical (motor) impairment.

There is evidence for substantial mental

(cognitive) impairment, characterized mainly

by learning difficulty and difficulty with

processing of speech and language. I suspect

tha t Christopher will prove to continue to

experience significant learning difficulty,

especially as learning becomes more complex.

There is no evidence in the record that would

indicate ChristopherÓs substantial mental

impairment to be due to neurological in jury

to the brain or spinal cord caused by oxygen

deprivation or mechanical injury during

labor, delivery, or the immediate post

delivery period.

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

have been no expert opinions filed that are contrary to the

opinions of Dr. Willis and Dr. Fernandez. The opinions of

Dr. Willis and Dr. Fernandez that Christopher did not suffer a

neurological injury due to oxygen deprivation or mechanical

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

peri od are credited. Dr. Fernandez 's opinion that Christopher

does not have a substantial motor impairment is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject 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 76 6.305(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.

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 t he 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 w ith 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 th e 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 a nd 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 serv ices 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 co urse 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 i njury 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

i njury 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 occurrin g 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

Ch ristopher 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

post - delivery period in a hospital and that Christopher does not

have a permanent and substantial physical impairment. Therefore,

Christopher is not eligible for benefits under the Plan.

12. Section 766.313 provides: ÐAny claim for compensation

under ss. 766.301 - 766.316 that is filed more than 5 years after

the birt h of an infant alleged to have a birth - related

neurological injury shall be barred.Ñ Christopher was born on

May 16, 2007, and the Petition was filed on October 22, 2013,

more than five years after ChristopherÓs birth. Thus, any claim

for compensability under the Plan is barred by the statute of

limitations.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Mayum i Perez,

individually and on behalf of Christopher Perez, is dismissed

with prejudice.

The final hearing scheduled for June 9, 2014, is cancelled.

DONE AND ORDERED this 23rd day of May , 2014 , in Tallahassee,

Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Adm inistrative 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 23rd day of May , 2014 .

CO PIES 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 4299 4369 )

Mari a D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

( Certified Mail No. 7013 2630 0000 4299 4376 )

Justine D. Adamski, Esquire

La Cava and Jacobson, P.A.

Suite 2500

101 East Kennedy Boulevard

Tampa, Florida 33602

( Certified Mail No. 7013 2630 0000 4299 4383 )

Adam Scott Levine, Esquire

Florida Legal Advocacy Group of Tampa Bay

Suite 303

1180 Gulf Boulevard

Clearwater, Florida 33767

( Certified Mail No. 7013 2630 0000 4299 4390 )

M. Mark Bajalia, Esquire

Baj alia, Sanders and Bajalia, P.A.

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

( Certified Mail No. 7013 2630 0000 4299 4406 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Talla hassee, Florida 32399 - 3275

(Certified Mail No. 7013 2630 0000 4299 4413)

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 000 0 4299 4420)

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. 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 order to be reviewed, and a

copy, acco mpanied 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).