14-000014N Rashad Sukhu And Anjani Ramoutar, On Behalf Of And As Parents And Natural Guardians Of Alina Karina Sukhu, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 14, 2014.

Summary: Child did not sustain oxygen deprivation or mechanical injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RASHAD SUKHU AND ANJANI

RAMOUTAR, on behalf of and as

parents and natural guardians of

ALINA KARINA SUKHU, a minor,

Petitioners,

vs. Case No. 14 - 0014N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSO CIATION,

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 In jury Compensation Association (NICA), on

August 28 , 2014.

STATEMENT OF THE CASE

On January 6 , 201 4, Petitioner s , Rashad Sukhu and

Anjani Ramoutar , on behalf of and as parents and natural

guardians of Alina Karina Sukhu ( Alina ), a minor, filed a

Petition f or Benefits 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 Injury Compensation Plan (Plan). The

Petition named Juan Ravelo , M.D., as the physician providing

obstetrical services at the birth of Alina on June 23 , 201 1 , at

Florida Hospital located in Orlando , Florida.

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

201 4 . On January 1 3 , 2014, DOAH received a return receipt from

the United States Postal Service showing that Florida Hospital

had been served with a copy of the Petition. On January 1 3 ,

201 4 , DOAH received a return receipt from the United States

Postal Service showing that Dr. Ravelo ha d been served with a

copy of the Petition.

Neither Juan Ravelo, M.D., nor Florida Hospital has

petitioned to i ntervene in this proceeding.

On August 28 , 2014, NICA filed a Motion for Summary Final

Order, asserting that Alina did not sustain a "birth - rel ated

neurological injury" as that term is defined in section

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

States Mail on August 28 , 2014. An Order to Show Cause was

entered on September 11 , 2014, advising Petitioners to show cause

in wri ting why Respondent Ós Motion for Summary Final Order should

not be granted. On September 19, 2014, Petitioner

Anjani Ramoutar filed a letter in opposition to the motion.

FINDINGS OF FACT

1. Alina Karina Sukhu was born on June 23, 201 1 , at Florida

H ospital located in Orlando , Florida. Alina weighed 6 pounds 12

ounces at birth.

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

to review the medical records for Alina , 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. In an affidavit dated August 14,

2014 , Dr. Willis described his findings as follows:

In summary , labor and delivery were

apparently uncomplicated. Umbilical cord

blood gas was not done. The newborn had

decreased muscle tone and feeding difficulty.

MRI of the brain showed some abnormalities

that could represent hemorrhage or hypoxic

injury. However, the FHR tracing did not

suggest fetal distress during labor and

delivery was uncomplicated. These findings

suggest that the brain injury was most likely

not birth related.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor or

delivery.

3. NICA retained Michael S . Duchowny , M.D., a pediatric

neurologist, to examine Alina and to review h er medical records.

Dr. Duchowny examined Alina on May 28 , 2014 . In an affidavit

dated August 18, 2014, Dr. Duchowny opined as follows :

In summary, AlinaÓs neurological examination

reveals global developmental delay

characterized by a complex 4 - limb motor

disability with static hypotonia , truncal

ataxia, and dynamic hypertoncity. She has

ab sent language development, a cortical

visual impairment, and severe oro - motor

incoordination necessitating caloric intake

via an indwelling gastrostomy tube.

Although Alina has a substantial mental and

motor impairment, the medical records do not

provide evidence to suggest that her

neurological injury was acquired due to

oxygen deprivation or me chanical injury in

the course of labor and delivery. I therefore

am not recommending Alina to be considere d

for compensation within the NICA program.

4. Petitioner Anjani Ramoutar filed a letter in opposition

to NICA's Motion for Summary Final Order. In the letter,

Petitioner raises the issue of fault. However, as addressed in

the Conclusions of Law, the F lorida Birth - Related Neurological

Injury Compensation Plan was established for the purpose of

providing compensation, irrespective of fault, for birth - related

neurological injury that fits within specific statutory

definitions to be eligible to receive ben efits under the Plan.

§§ 766.302(2), 766.303(1), and 766.309(1), Fla. Stat.

5 . 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

e vent that resulted in loss of oxygen or mechanical trauma to the

baby's brain during labor or delivery . Dr. WillisÓ opinion is

credited. There are no contrary expert opinions filed that are

contrary to Dr. Duchowny Ós opinion that although Alina has a

sub stantial mental and motor impairment, the medical records do

not provide evidence to suggest that her neurological injury was

acquired due to oxygen deprivation or mechanical injury in the

course of labor and delivery. Dr. Duchowny Ós opinion is

credited.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

7 . 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.

8 . The injured infant, her or his personal representative,

parents, dependents, and nex t 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.

9 . 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

dis putes 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.

10 . In 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 satisfaction of the

adm inistrative 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 presu mption 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 postd elivery 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 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.

1 1 . 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 2 . While PetitionerÓs letter is in disagreement with

Drs. Willis and DuchownyÓs conclusions, t he evidence, which is

not refuted by any contrary expert opinions , established that

Al ina did not sustain an injury to the brain caused by oxygen

deprivation or mechanical injury in the course of labor and

delivery. Therefore, Alina is not eligible for benefits under

the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Con clusions of

Law, it is ORDERED that the Petition filed by Rashad Sukhu and

Anjani Ramoutar , on behalf of and as parents and natural

guardians of Alina Karina Sukhu , is dismissed with prejudice , and

the final hearing scheduled for November 14, 2014, is canc eled .

DONE AND ORDERED this 14th 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

Tall ahassee, 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 14th day of October , 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

( Certified Mail No. 7014 1200 0002 3336 4624 )

Rashad Sukhu

Anjani Ramoutar

468 Little Rock Street

Ocoee, Florida 34761

(Certified Mail No. 7014 1200 0002 3336 4631)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

( Certified Mail No. 7014 1200 0002 3336 4648 )

Amie Rice, Investigation Manager

Consumer Services Un it

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 1200 0002 3336 4655)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 1200 0002 3336 4662)

Juan Luis Ravelo, M.D.

Second Floor

1800 Mercy Drive

Orlando, Florida 32808

(Certified Mail No. 7014 1200 0002 3336 4679 )

Florida Hospital

Attention: Risk Management

601 E ast Rollins Street

Orlando, Florida 32803

(Certified Mail No. 7014 1200 0002 3336 4686)

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 Heari ngs

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 Com p. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).