14-003124N Carlos Barrientos-Martinez And Asuncion Gutierrez-Arreola, On Behalf Of And As Parents And Natural Guardians Of Carla Barrientos-Gutierrez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, January 12, 2015.

Summary: Child did not suffer an injury to the brain caused by oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLOS BARRIENTOS - MARTINEZ AND

ASUNCION GUTIERREZ - ARREOLA, on

behalf of and as parents and

natural guardians of CARLA

BARRIENTOS - GUTIERREZ, a minor,

Petitioners,

vs. Case No. 14 - 3124N

FLORIDA BIRTH - RELATED

NEUR OLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Flo rida Birth - Related

Neurological Injury Compensation Association (NICA), on

December 29 , 2014.

STATEMENT OF THE CASE

On July 7, 2014, Petitioners, Carlos Barrientos - Martinez and

Asuncion Gutierrez - Arreola, on behalf of and as parents and

natural guardians of Carla Barrientos - Gutierrez (Carla), 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 compensability under the

Florida Birth - R elated Neurological Injury Compensation Plan

(Plan). The Petition named Wilfredo Rivera - Ortiz, M.D., as the

physician providing obstetrical services at the birth of Carla on

April 12, 2013, at Manatee Memorial Hospital located in Braden

River, Florida.

DO AH served NICA with a copy of the Petition on Ju ly 10,

2014. On July 22, 2014, DOAH received a return receipt from the

United States Postal Service showing that Dr. Rivera - Ortiz had

been served with a copy of the Petition. On October 15, 2014,

DOAH recei ved a return receipt from the United States Postal

Service showing that Manatee Memorial Hospital had been served

with a copy of the Petition.

Neither Wilfredo Rivera - Ortiz, M.D., nor Manatee Memorial

Hospital has petitioned to intervene in this proceedi ng.

On December 29, 2014, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

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

that Petitio ners had no objection to the granting of the motion.

FINDINGS OF FACT

1. Carla Barrientos - Gutierrez was born on April 12, 2013,

at Manatee Memorial Hospital located in Braden River, Florida.

Carla weighed 3,610 grams at birth.

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

to review the medical records for Carla. In an affidavit dated

December 17, 2014, Dr. Willis described his findings as follows:

In summary, vacuum assisted delivery resulted

in a scalp hemorrhage with significant bloo d

loss and resulting anemia, hypovolemia,

hypotension and coagulation defects.

Hypovolemia resulted in poor perfusion and

multisystem organ failure. E. coli sepsis

compounded the complications related to the

scalp hemorrhage. The baby suffered brain

inju ry due to these complications . However,

the brain injury did not occur during labor

delivery or the immediate post - delivery

period.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during lab or,

delivery or the immediate post delivery

period.

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

a pediatric neurologist, to examine Carla and to review her

medical records. Dr. Duchowny examined Carla on October 15,

2014. In an affidavi t dated December 17, 2014, Dr. Duchowny

opined as follows:

In summary, CarlaÓs neurological examination

reveals evidence of a mild to moderate motor

disability and language development which is

behind age level. There is no focal or

lateralizing findings and I was unable to

confirm the familyÓs impression of diminished

left - sided motor activity.

The medical record review indicates that

CarlaÓs neurological impairments are the

result of E - coli, sepsis and

meningoencephalitis. She likely had diffuse

CNS va sculitis as well. However, there is no

indication that CarlaÓs brain damage resulted

from either mechanical injury or oxygen

deprivation in the course of labor and

delivery. The timing of acquisition of her

infection is open [sic] a question as she

only became symptomatic at 24 hours of age.

Should this issue need further examination,

input from a pediatric infectious disease

consult would be useful. It would be

important to review her MRI scans of the

brain. However, pending any need for further

review , I am not recommending Carla for

inclusion in the NICA program.

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

have been no opinions filed that 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 baby's

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

period, and Petitioners have no objection to the issuance of a

summary final order finding that the injury is not compensable

under the plan. Dr. WillisÓ opinion is credited. There are no

contrary opinions filed that are contrary to Dr. DuchownyÓs

opinion that there is no indication that Carla's neu rological

injury resulted from either mechanical injury or oxygen

deprivation in the course of labor and delivery. Dr. DuchownyÓs

opinion 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 w as 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, h er 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 .

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

assig ned. § 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.

9. In discharging this responsibility, 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

administrative 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 subs tantially

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

cour se 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 p ostdelivery 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 part icipating 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

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.

11. The evidence, which is not refuted, established that

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

deprivation or mechanical injury in the course of labor,

delivery, or resuscitation in the immediate post - delivery period.

Therefore, Carla 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 Carlos Barrientos -

Martinez and Asuncion Gutierrez - Arreola, on behalf of and as

parents and natural guardians of Carla Barrientos - Gutierrez, is

dismissed with prejudice, and the final hearing scheduled for

Ja nuary 27, 2015, is canceled.

DONE AND ORDERED this 12th day of January , 2015 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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 12th day of January , 2015 .

COPIES FURNISHED:

(via certified mail)

Ke nney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No.7014 2120 0003 1053 1163)

Pamela A. Padilla, Esquire

Martinez Ma nglardi, P.A.

903 North Main Street

Kissimmee, Florida 34744

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1170)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1187)

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 2120 0003 1053 1194)

Elizabeth Dudek, Secretary

Health Quality As surance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1053 1200)

Manatee Memorial Hospital

Attention: Risk Management

206 2nd Street, East

Bradenton, Florida 34208

(Cer tified Mail No. 7014 2120 0003 1053 1217)

Wilfredo Rivera - Ortiz, M.D.

1312 East Manatee Avenue

Manatee, Florida 34208

(Certified Mail No. 7014 2120 0003 1053 1224)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law ju dge 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 dminist rative 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, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. S ee

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

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

1992).