14-002621N Michelle And Thomas Alvarez, Individually And As Natural Persons And Guardians Of Amy Nicole Alvarez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, December 3, 2014.

Summary: Child is not substantially and permanently mentally and physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELLE AND THOMAS ALVAREZ,

individually and as natural

persons and guardians of AMY

NICOLE ALVAREZ, a minor,

Petitioners,

vs. Case No. 14 - 2621N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATI ON,

Respondent,

and

UNIVERSITY OF MIAMI, d/b/a

MILLER SCHOOL OF MEDICINE AND

THE PUBLIC HEALTH TRUST OF

MIAMI - DADE COUNTY,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon the Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensa tion Association (NICA), on

Septem ber 26 , 201 4, and the Motion for Summary Final Order filed

by Petitioners, Michelle a nd Thomas Alvarez, individually and as

natural persons and guardians of Amy Nicole Alvarez, a minor,

filed on October 1, 2014 .

STATEMENT OF THE CASE

On May 27 , 201 4 , Petitioners, Michelle and Thomas Alvarez ,

individually and as natural persons and guardia ns of Amy Nicole

Alvarez ( Amy ), a minor, filed a Petition for NICA to Find that

Florida Statute Section 766.301 et s eq . Does Not Apply to Alvarez

v. The Public Health Trust of Miami - Dade County d/b/a Jackson

Health System d/b/a Jackson South Community Hosp ital; University

of Miami d/b/a Miller School of Medicine; and Jose Alvarez -

Fuent e s, M.D. (Petition) , with the Division of Administrative

Hearings (DOAH) for a determination of compensability under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan). By letter dated June 4, 2014, Petitioners identified

Ronald S a ncetta , M.D., as the physician providing obstetric

services at the birth of Amy at Jackson South Community Hospital

in Miami , Florida. 1/ DOAH served NICA with a copy of the Petit ion

on June 6 , 201 4. DOAH served a copy of the Petition on

Dr. S ancett a on June 7 , 201 4 . DOAH received a return receipt

from the United States Postal Service o n June 2 3 , 201 4, showing

that t he Public Health Trust of Miami - Dade County had been served

with a copy of the Petition. On June 19, 2014 , and June 20,

2014 , respectively, the University of Miami , d/b/a Miller School

of Medicine and the Public Health Trust of Miami - Dade County ,

filed Petitions for Leave to Intervene , which w ere granted by

Order date d June 27, 2014 . As of the date of th is Summary Final

Order of Dismissal, Dr. Sancetta has not petitioned to intervene

in this proceeding.

On Septemb er 26 , 201 4 , NICA filed a Motion for Summary Final

Order, asserting that Amy did not sustain a "birth - rela ted

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On October 1, 2014, Petitioners

also filed a Motion for Summary Final Order, stating that they

are in agreement with RespondentÓs position that the facts of

this cas e do not fit within the definitions of what is

compensable under the pertinent NICA statutes.

On Octob er 3 , 201 4 , Intervenor University of Miami filed its

M otion to Defer Ruling on Motion s for Summary Final Order, to

which Respondent and Petitioners fil ed responses . IntervenorÓs

Motion to Defer Ruling on Motions for Summary Final Order was

granted by Order dated October 3, 2014, extending the time to

respond until November 24, 2014.

On November 21 , 2014, Intervenor University of Miami filed

Intervenor Ó s Response in Opposition to PetitionersÓ and NICAÓs

Motion s. PetitionersÓ and Respondent's M otions for Summary Final

Order were heard by telephonic conference call on November 24 ,

201 4. On November 25, 2014, Intervenor the Public Health Trust

filed its R esponse in Opposition to PetitionersÓ and RespondentÓs

Motions for Summary Final Order.

FINDINGS OF FACT

1. Amy Nicole Alvarez was born on June 16 , 20 10 , at Jackson

South Community Hospital in Miami , Florida.

2. Michael S . Duchowny , M.D. (Dr. Duchown y ), was requested

by NICA to do an independent medical examination of Amy and to

review her medical records . Dr. Duchowny examined Amy on July 2,

2014 . In an affidavit dated September 22, 2014, Dr. Duchowny

reported his findings and gave the following op inion :

In summary, AmyÓs neurological examination

today reveals mild right spastic hemiparesis,

speech dysarthria and a complex visual

agnosia. She additionally evidences

microcephaly. Although I am concerned about

AmyÓs overall cognitive development due to

her microcephaly, she appears to be

progressing satisfactory and is making

progress with respect to verbal communication

both in the receptive and expressive domains.

Her visual impairment is likely to be

centrally - based.

I had an opportunity to revie w AmyÓs med i cal

records. It contained information that is

consistent with AmyÓs overall history but I

have not reviewed AmyÓs brain MRI scans.

However, in view of AmyÓs relatively good

mental development and only mild degree of

motor impairment, I would n ot recommend

inclusion within the NICA program.

As such, it is my opinion that AMY NICOLE

ALVAREZ is not permanently and substantially

mentally impaired nor is she permanently and

substantially physically impaired due to

oxygen deprivation or mechanical injury

occurring during the course of labor,

delivery or the immediate post - delivery

period in the hospital during the birth of

AMY NICOLE ALVAREZ. ( E mphasis in original . )

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

nor was any potential contrary expert disclosed during the

telephone hearing on the Motions for Summary Final Order . The

opinion of Dr. Duchowny that Amy does not have a permanent and

substantial mental o r physical impairment 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

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.

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

peti tion 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 compensable birth - related neurolo gical 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 in stant 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 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

administrative law judge, that the infan t 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.

§ 766.309(1), Fla. Stat. An award may be sustained only if th e

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

Amy does not have a permanent and substantial m ental or physical

impairment; thus, Amy has not sustained a birth - related

neurological injury because s he is not p ermanently and

substantially physically impaired. Therefore, Amy is not

eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

1. The Petition filed by Michelle and Thomas Alvare z,

individually and as natural persons and guardians of Amy Nicole

Alvarez , is dismissed with prejudice.

2. The final hearing scheduled for January 8, 2015, is

cancelled.

DONE AND ORDERED this 3rd day of December , 2014 , in

Tallahassee, Leon County, Florid a.

S

BARBARA J. STAROS

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 3rd day of December , 2014 .

ENDNOTE

1/ The letter supplied the name and address of the physician

providing obstetrical services who was present at the birth and

the name and address of the hospital at which the birth occurred

as required by section 766.305(1)(c), Florida Statutes.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Chri stopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9907)

Gary Michel Cohen, Esquire

Grossman Roth, P.A.

925 South Federal Highway , Suite 775

Boca Raton, Florida 33432

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9914)

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Espirito Santo Plaza, 14th Floor

1395 Brickell Avenue

Miami, Florida 33131 - 3302

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9921)

Eric K. Gressman, Esquire

Dade County Att orney ' s Office

111 Northwest 1st Street , Suite 2810

Miami, Florida 33128

(eServed)

(Certified Mail No. 7014 2120 0003 1048 9938)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certif ied Mail No. 7014 2120 0003 1048 9945)

Ronald Sancetta, M.D.

9275 Southwest 152nd Street , Suite 208

Miami, Florida 33157 - 1704

(Certified Mail No. 7014 2120 0003 1048 9952)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

405 2 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1048 9969)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1048 9976)

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 proceedi ngs 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 t o 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).