13-004911N Bethzaida Rodriguez, On Behalf Of And As Parent And Natural Guardian Of Arielle Rodriguez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 24, 2014.

Summary: Infant did not sustain an injury to the brain caused by oxygen deprivation occurring during labor, delivery, or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETHZAIDA RODRIGUEZ, on behalf

of and as parent and natural

guardian of ARIELLE RODRIGUEZ, a

minor,

Petitioner,

vs. Case No. 13 - 4911N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Re spondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

& BABIES AND DENNIS C. SZURKUS,

M.D.,

Intervenor s .

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for con sideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on

September 3 , 2014.

STATEMENT OF THE CASE

On December 9 , 201 3, Petitioner, Bethzaida Rodriguez , on

behalf of and as parent and natural guardian of Arielle Rodriguez

( Arielle ), a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. (Petition) with the

Division of Administrative Hearings (DOAH) for a determination of

compensabil ity under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan). The Petition named

ÐDr. McLaugfinÑ as the physician providing obstetrical services

at the birth of Arielle on September 28 , 201 0 , at Wi nnie Palmer

Hospital for Women and Bab ies (Winnie Palmer) in Orlando ,

Florida. On December 18, 2013, Petitioner filed a letter with

the ClerkÓs Office of DOAH referencing Samuel McLead, M.D. ;

James Lawrence, M.D. ; Sekeyta Paul, M.D. ; Virginia Pagani, M.D. ;

as well as Jacqueline McLaughlin, M. D., as physicians present at

ArielleÓs birth.

DOAH served NICA with a copy of the Petition on December 31 ,

201 3 . DOAH served a copy of the Petition on Winnie Palmer on

December 24, 2013. DOAH served a copy of the Petition on

Jacqueline McLaughlin, M.D. , on December 23 and again on

December 24, 2013. DOAH served a copy on James Lawrence, M.D.,

on December 23 and again on December 24, 2013. DOAH served a

copy of the Petition on Virginia Pagani, M.D. ; Samuel McLead,

M.D. ; and Sekeyta Paul, M.D., on Decem ber 24, 2013.

On January 21, 201 4 , Dennis C. Szurkus, M.D., and Orlando

Health, d/b/a Winnie Palmer Hospital for Women and Babies, filed

a Petition for Leave to Intervene naming Dr. Szurkus as having

been involved with the labor and delivery process of A rielle.

The Petition to Intervene w as granted by Order dated February 5 ,

2014.

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

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

neurological injury" as that term is defined in sect ion

766.302(2), Florida Statutes. The motion was served by United

States mail on September 3 , 2014.

An Order to Show Cause was entered on September 16, 2014,

advising Petitioner to show cause in writing why RespondentÓs

Motion for Summary Final Order sh ould not be granted. To date,

no response has been filed.

FINDINGS OF FACT

1. Arielle Rodriguez was born on September 28, 201 0 , at

Winnie Palmer Hospital for Women and Babies located in Orlando ,

Florida. Arielle weighed 3, 394 grams at birth.

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

to review the medical records for Arielle , 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 occurring

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

immediate post - delivery period. Dr. Willis described his

findings in pertinent part as follows in an affidavit dated

August 28, 2014 :

5. I have reviewed the medical records for

the above individual. The mother, Bethzaida

[sic] Calderon was a 19 year old G 1 with no

significant prenatal problems. She was

admitted to the hospital at 37 weeks with

spontaneous rupture of the membranes and

active labor.

6. T he fetus was noted to be in a breech

presentation. Cesarean section was done

without difficulty. Birth weight was 3,394

grams. Apgar scores were 4/9. The umbilical

cord blood gas was normal with pH of 7.24.

7. Newborn evaluation stated the baby was

Ð clinically well.Ñ The newborn hospital

course was uncomplicated. Hospital discharge

note on DOL 3 has a discharge diagnosis of

healthy female.

8. The baby was subsequently diagnose d with

developmental delay at 5 to 6 months of age.

MRI at about one ye ar of age was normal.

Laboratory evaluation, including genetic

studies (microarray) was negative. A note

from 2 years of age states the child had

spastic quadraparesis of unknown etiology.

9. In summary, the baby was delivered by

Cesarean section due t o breech presentation.

The baby had a normal cord blood gas (pH

7.24) and a normal and uncomplicated newborn

hospital course. There was nothing to

suggest a birth - related hypoxic injury.

Developmental delay was noted at 5 to 6

months of age. MRI at one y ear was normal.

10. 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.

3. NICA retained Michael S . Duchowny , M.D . (Dr. Duchowny) ,

a pediatric neurologist, to examine Arielle and to review h er

medical records. Dr. Duchowny examined Arielle on June 25 , 2014,

and opined in pertinent part as follows in his affidavit dated

August 28, 2014.

5. Arielle is 3 years old and has a

longstanding history of motor delay. Her

parents indicated that she has a combination

of both increased and decreased muscle tone

and that she is spastic. Arielle cannot walk

independently and did not sit until age 18

months. She has never stood on her own and

tends to move around by combat crawling. She

did not roll over until age 8 months. Both

arms and legs are affected equally and there

is no later ality to her muscular disability.

She is wheelchair - bound.

6. Arielle participates in physica l and

occupational therapy through her

prekindergarten program at Lake Silver

Elementary School in Orlando. She

participates in 2 sessions per week, each

lasting 30 minutes. She wears AFOs and wrist

splints and is under surveillance by

orthopedic surgery . She has never required

surgery and from an orthopedic standpoint,

has been stable.

7. In contrast, ArielleÓs motor disability

and cognitive development have proceeded

quite well. Her mother indicated that

" mentally, she is fineÑ. In fact, she tests

out above average and her language skills

have always been advanced. Her speech is

clear and she is very sociable. There have

been no behavioral problems, cognitive or

motor regression.

8. Arielle is on no intercurrent

medications. She has never had seizures.

She has never been examined by an

op h thalmogist. Her vision and hearing are

both good and her appetite is stable. She

sleeps through the night.

9. The physical examination revealed a well -

developed, well nourished, wheelchair bound,

socially appropriate 3 - year old girl.

ArielleÓs height and weight were not measured

due to her restriction of being in a

wheelchair. Her head circumference measured

50.3 centimeters which is within standard

percentiles. There are no neurocutaneous

stigmata. She does not have a darkly

pigmented nevus on the right lower leg.

There are no other neurocutaneous features.

The spine is straight without dysraphism.

The anterior and posterior fontanels are

closed. There are no cranial or facial

anomalies or asymmetrie s. The neck is supple

without masses, thyromegaly or adenopathy.

There are no signs of peripheral dysmorphism.

The lung fields are clear. The heart sounds

are strong with out murmurs or rubs. The

abdomen is soft and nontender without

palpable liver, spl een or kidneys.

Peripheral pulses are 2 and symmetric.

10. The neurologic examination revealed an

alert, pleasant and cooperative child who

initially was shy but ultimately warmed up

during the evaluation. Arielle is quite

engaging and she clearly und erstands

everything going on in her surround. She

interacts well with her parents and maintains

an age appropriate stream of thought and

attention. Her speech is fluent and well

articulated and she follows simple commands

without problems. She was not o verly

fearful.

11. The motor examination reveals a complex

pattern of abnormality. Arielle demonstrates

static hypotonia but demonstrates prominent

hypertonicity with spasticity. She

additionally evidences truncal ataxia and has

a dyskinetic syndrome wi th involuntary

movements and intermittent tongue thrusting.

Drooling is noted intermittently. She is

unable to stand and bear weight and

demonstrates a plantigrade attitude. There

is prominent scissoring of the lower

extremities. No specific focal weakn ess or

atrophy is noted and there are no

fasciculations. Her head control is good.

She is unable to maintain a sitting or

standing balance. Placing and stepping

responses are elicited.

12. In summary, ArielleÓs neurologic

examination reveals a prominen t motor

disability at a level of development

approximating 8 months. In contrast, her

mental development is fully on target without

evidence of a cognitive deficit. There are

no specific focal or lateralizing findings on

examination to suggest a lateraliz ed brain

lesion.

13. I am familiar with the Florida Birth -

Related Neurological Injury Compensation Plan

(the ÐPlanÑ) and the standards imposed by the

Plan for compensability of potential claims.

Based upon my review of the medical records

as described he rein and in my report, and

further based upon my evaluation of ARIELLE

RODRIGUEZ, I have formed an opinion as to

whether ARIELLE RODRIGUEZ qualifies for

compensation under the plan.

14. I had an opportunity to review medical

records which confirm the par entÓs history

and add little in the way of diagnostic

information. ArielleÓs healthcare providers

have not established a firm diagnosis of her

motor disability although further workup is

planned. There is no historical or physical

evidence of intrapartum hypoxia or mechanical

injury.

15. I therefore do not believe that Arielle

should be considered for compensation within

the NICA Program. Her mental development is

normal and there is no indication of an

intrapartum event causing her neurological

disabi lity.

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

have been no expert opinions filed t hat are contrary to the

opinion of Dr. Willis that there was no apparent obstetrical

event that resulted in loss of oxygen or mechanical trauma to the

babyÓ s brain or spinal cord during labor, delivery or the

immediate post - delivery period. Dr. WillisÓ opinion is credited.

There are no expert opinions filed that are contrary to

Dr. Duchowny Ós opinion that Arielle does not show a significant

mental impairmen t and th a t there is no indication of an

intrapartum event causing her neurological injury .

Dr. Duchowny Ós opinion is credited.

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of t hese 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 Jan uary 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), a nd 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.

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

accorda nce with the provisions of chapter 120, Florida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

9 . In discharging this responsibility, the a dministrative

l aw j udge must make the following determination based upon the

available evidence:

(a) Wheth er 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

inj ury 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 t he course 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 neurologi cal injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

1 0 . The term "birth - related neurological injury" is defined

in section 766.302(2) as follows:

"Birth - related neurological injury" me ans

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 occ urring 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 th at

Arielle did not sustain an injury to the brain caused by oxygen

deprivation occurring during labor, delivery, or the immediate

post - delivery period, nor that she has a permanent and

substantial mental impairment. Therefore, Arielle 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 Bethzaida

Rodriguez , on behalf of and as parent and natural guardian of

Arielle Rodriguez , is dismissed with pre judice.

DONE AND ORDERED this 24th day of October , 2014 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, 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 24th day of October , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executiv e Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

( Certified Mail No. 7014 1200 0002 3336 4341 )

Bethzaida Rodriguez

6737 Stardust Lane

Orlando, Florida 32818

(Certi fied Mail No. 7014 1200 0002 3336 4358)

Andrea L. Diederich, Esquire

Marshall, Dennehey, Warner,

Coleman, and Goggin

315 East Robinson Street, Suite 550

Orlando, Florida 32801

( Certified Mail No. 7014 1200 0002 3336 4365 )

Martin P. McDonnell, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

( Certified Mail No. 7014 1200 0002 3336 4372 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 1200 0002 3336 4389)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 120 0 0002 3336 4396)

Jacqueline Sheree McLaughlin, M.D.

9827 North Sheldon Road

Tampa, Florida 33635

(Certified Mail No. 70 14 1200 0002 3336 4402 )

James S. Lawrence, Jr., M.D.

2699 Lee Road , Suite 510

Winter Park, Florida 32789

(Certified Mail No. 70 14 1200 0002 3336 4419)

James Lawrence, M.D.

Winnie Palmer Hospital for Women and Babies

83 West Miller Street , 3rd Floor

Orlando, Florida 32806

(Certified Mail No. 70 14 1200 0002 3336 4426 )

Samuel McLead, M.D.

Winnie Palmer Hospital for Wo men and Babies

83 West Miller Street , 3rd Floor

Orlando, Florida 32806

(Certified Mail No. 70 14 1200 0002 3336 4433)

Jacqueline McLaughlin, M.D.

Winnie Palmer Hospital for Women and Babies

83 West Miller Street , 3rd Floor

Orlando, Florida 32806

(Certified Mail No. 70 14 1200 0002 3336 4440)

Virginia Pagani, M.D.

Winnie Palmer Hospital for Women and Babies

83 West Miller Street , 3rd Floor

Orlando, Florida 32806

(Certified Mail No. 70 14 1200 0002 3336 4471 )

Virginia Pagani, M.D.

High Risk O B/GYN Resident Practice

89 West Copeland Drive , Suite 3

Orlando, Florida 32806

(Certified Mail No. 70 14 1200 0002 3336 4457 )

Sekeyta Paul, M.D.

Winnie Palmer Hospital for Women and Babies

83 West Miller Street , 3rd Floor

Orlando, Florida 32806

(Cert ified Mail No. 7014 1200 0002 3336 4464)

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 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 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).