14-003731N Ana M. Maya And Carlos F. Maya, Individually And On Behalf Of Sebastian Maya, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, November 19, 2014.

Summary: Infant's birth weight was less than minimum required of a single gestation (2,500 grams) under the Florida Birth-Related Neurological Injury Compensation Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANA M. MAYA AND CARLOS F. MAYA,

Individually and on behalf of

SEBASTIAN MAYA, a minor,

Petitioners,

vs. Case No. 14 - 3731N

FLORIDA BIRTH - RELATED

NEUROLOGICAL 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, Florida Birth - Related

Neurological Injury Compensation Association ( NICA), on

Octo ber 3 1, 201 4 .

STATEMENT OF THE CASE

On August 11 , 201 4 , Petitioners, Ana M. Maya and Carlos F.

Maya , on behalf of and as parents and natural guardians of

Sebastian Maya ( Sebastian ), a minor, filed a Petition Under

Protest Pursuant to Florida Statutes 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 Jane Matos - Fraebel , M.D. , as the physician who

provided obstetric services for the birth of Sebastian . The

Petition stated that Sebastian was born at Plantation General

Hospital in Plantation , Florida.

DOAH served NICA with a copy of the Petition on August 1 8 ,

201 4 . DOAH served Plantation General Hospital with a copy of the

Petition on Plantation General Hospital on August 18, 2014. DOAH

served copies of the Petition on Dr. Matos - Fraebel on August 28,

2014. As of the date of the Summary Final Order of Dismissal,

neither Dr. Ma tos - Fraebel nor Plantation General Hospital has

petitioned to intervene in this proceeding.

On Octo ber 3 1, 201 4 , NICA filed a Motion for Summary Final

Order, requesting that a s ummary f inal o rder be entered finding

that the claim was not compensable becaus e Sebastian did not meet

the requisite minimum statutory birth weight as required by

section 766.302(2), Florida Statutes , and that the five - year

statute of limitations had run under the Plan . As of the date of

this Summary Final Order of Dismissal, Petit ioners have not filed

a response to the Motion for Summary Final Order. It is noted

that the Petition Under Protest requests a determination that

SebastianÓs injuries be determined to be non - compensable under

the Plan.

FINDINGS OF FACT

1. Sebastian Maya was born on October 11 , 20 06 , at

Plantation General Hospital in Pla ntation , Florida. He was a

single gestation.

2. Based on the NICU discharge summary , Sebastian weighed

1,740 grams at birth. There is no dispute that Sebastian did not

weigh at lea st 2,500 grams at birth.

3. The Petition Under Protest was filed on August 11, 2014,

which is more than five years after SebastianÓs birth.

CONCLUSIONS OF LAW

4 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subjec t 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

petition and to submit relevant written information relating to

the issue of whethe r the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

7 . NICA has determined that Petitioners do not have a claim

that is compensable under the Plan and has filed a Motion for

Summary Final Order, requesting that an order be en tered finding

that the claim is not compensable.

8 . In ruling on the motion, 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 subst antially

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).

§ 766.309(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 2,00 0 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 physical ly impaired.

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

Sebastian was a single gestation and did not weigh at least 2,500

grams at birth. Thus, Sebastian did not sustain a birth - related

neurological injury because he did not meet the mini mum statutory

weight as set forth in the definition of "birth - related

neurological injury," in section 766.302(2).

11. Moreover, the Petition Under Protest was filed more

than five years after the birth of Sebastian. This is beyond the

five - year statute of limitations set forth in section 766.313,

and is, therefore, barred.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Ana M. Maya and

Carlos F. Maya , on behalf of and as parents and natural guardians

of Sebastian Maya , a minor, is dismissed with prejudice.

DONE AND ORDERED this 19th day of November , 2014 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Divisio n 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 19th day of Novembe r , 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

(eServed)

(Certified Mail No. 7014 2120 0 003 1049 3522)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0003 1049 3539)

Jeffrey P. Brock, Esquire

Smith Stout Bigman and Brock PA

Suite 900

444 Seabr eeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7014 2120 0003 1049 3546)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified M ail No. 7014 2120 0003 1049 3553)

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 1049 3560)

Plantation General Hospita l

Attention: Risk Management

401 Northwest 42nd Avenue

Plantation, Florida 33317

(Certified Mail No. 7014 2120 0003 1049 3577)

Jane Matos - Fraebel, M.D.

140 Southwest 84th Avenue, Suite D

Plantation, Florida 33324

(Certified Mail No. 7014 2120 0003 1049 3584)

Jane Matos - Fraebel, M.D.

Suite 118

4850 West Oakland Park Boulevard

Lauderdale Lakes, Florida 33313

(Certified Mail No. 7014 2120 0003 1049 3591)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall b e

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 dministrative a ppe al

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

§ 766.31 1(1), Fla. Stat., and Fla. Birth - Related Neurological

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

1992).