13-004675N Hilda Lozano, Individually And On Behalf Of Aaron Lora, Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 11, 2014.

Summary: Infant 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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILDA LOZANO, individually and

on behalf of AARON LORA, minor ,

Petitioner ,

vs. Case No. 13 - 4675N

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 February 6, 2 014.

STATEMENT OF THE CASE

On December 4, 2013, Petitioner, Hilda Lozano, individually

and on behalf of Aaron Lora (Aaron ) , a minor, filed a Petition

Under Protest Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with the Division of Administ rative Hearings (DOAH)

for a determination of compensability under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan). The

Petition named Manuel Alvardo, M.D., and Shawn Lundbert, ARNP as

the physicians providing obstetric services at the birth of Aaron

at Leesburg Regional Medical Center in Leesburg, Florida.

DOAH served NICA with a copy of the Petition on December 6,

2013. DOAH served a copy of the Petition on Leesburg Regional

Medical Center on December 11, 2013. On December 11, 20 13, DOAH

received return receipts from the United States Postal Service

showing that Dr. Alvarado and Mr. Lundbert had been served with

copies of the Petition.

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

petitions to intervene ha ve been file d by Dr. Alvarado,

Mr. Lundbert, or Leesburg Regional Medical Center.

On February 6, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

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

that counsel for Petitioner was contacted and had no objection to

the granting of the motion.

FINDINGS OF FACT

1. Aaron Lora was born on January 16, 2012, at Leesburg

Regional Medical Center in Leesburg , Florida. Aaron weighed

3,850 grams at birth.

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

to review the medical records for Aaron. Dr. Willis reported the

following:

I have reviewed the medical records for the

above individual [Aaron]. The mother,

Hilda Lozano was a 37 year old G3 P1011 with

one prior Cesarean section delivery.

Pregnancy was complicated by a placenta

previa and Gestational Diabetes. Gestational

Diabetes was diagnosed during the third

trimester and managed with oral age nts.

Weekly NSTÓs were done for fetal evaluation

and showed no distress.

Vaginal bleeding occurred during pregnancy.

Placenta previa was diagnosed. Steroids were

given to enhance fetal lung maturity. The

mother was admitted at 39 weeks gestational

age for repeat Cesarean section delivery.

She was not in labor. A large amount of

amniotic fluid was described at time of

delivery.

Birth weight was 8 lbs 8ozÓs (3,850 grams).

The baby was not depressed. Apgar scores

were 8/9. No resuscitation was requi red.

The baby was described as ÐvigorousÑ after

delivery. Newborn hospital course was

uncomplicated.

The child was subsequently diagnosed with

Global development delay. MRI at about one

year of age was abnormal.

In summary: The mother was not in labo r

prior to delivery. Elective repeat Cesarean

section was done with delivery of a healthy

baby. No resuscitation was required. Apgar

scores were 8/9.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during delivery or

the immediate post delivery period.

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

and Petitioner has 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 AaronÓs mother was not in

labor and that Aaron did not suffer a neurological injury due to

oxygen deprivation or mechanical injury during delivery or

resuscitation in the immediate post - delivery period is credited.

CONCL USIONS 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 comp ensation, 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 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.

7. If NICA determines that the injury alleged in a claim is

a co mpensable 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.

8. In discharging this respo nsibility, the Administrative

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

administr ative 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 postdeliver y 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.

§ 766.309(1), Fla. Stat. An awa rd 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 ter m "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

mult iple 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

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

caused by oxygen deprivation or mechanical injury occurring in

the cour se of labor, delivery, or resuscitation in the immediate

post - delivery period in a hospital. Therefore, Aaron 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 Hilda Lozano,

individually and on behalf of Aaron Lora, a minor, is dismissed

with prejudice.

DONE AND ORDERED this 11th day of February , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRK LAND

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 Administrat ive Hearings

this 11th day of February , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Cer tified Mail No. 7013 1710 0000 1618 6644)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7013 1710 0000 1618 6651)

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigm an, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7013 1710 0000 1618 6668)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bi n C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1010 0001 8358 0472)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7 012 1010 0001 8358 0489)

Manuel Alvardo, M.D.

Advanced Obstetrics/Gynecology

1414 East Main Street , Suite 1

Leesburg, Florida 34748

(Certified Mail No. 7012 1010 0001 8358 0496 )

Leesburg Regional Medical Center

Attention: Risk Management

404 Ram bo Street

Leesburg, Florida 34748

(Certified Mail No. 7012 1010 0001 8358 0502

Shawn Lundberg, ARNP

Advanced Obstetrics/Gynecology

1414 East Main Street , Suite 1

Leesburg, Florida 34748

(Certified Mail No. 7012 1010 0001 8358 0519 )

NOTICE OF RIG HT 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 notice of administrative appeal

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 prescr ibed 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).