14-004180N Ninsi Galindo And Wilfredo Morales, Individually And On Behalf Of Elian O. Morales Galindo, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 17, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NINSI GALINDO AND WILFREDO

MORALES, Individually and on

behalf of ELIAN O. MORALES

GALINDO, a minor,

Petitioners,

vs. Case No. 14 - 4180N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

& BABIES; AMANPREET S. BHULLAR,

M.D.; YOCOIMA PLAZA, M.D.; AND

DIANA NARVAEZ, M.D.,

Intervenors.

_______________________________/

SUMMARY FINA L 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

January 15 , 201 5 , and a Supplemental Motion for Summary Fina l

Order filed February 23, 2015 .

STATEMENT OF THE CASE

On September 4 , 201 4, Petitioner s , Ninsi Galindo and

Wilfredo Morales , individually and on behalf of Elian O. Morales

Galindo (Elian) , a minor, filed a Petition Under Protest Pursuant

to Florida S tatute 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 Amanpreet

Bhullar, M.D., Y ocoima Plaza, M.D., and Diana Narvaez, M.D., as

the physician s providing obstetrical services at the birth of

Elian on October 27 , 20 12 , at Winnie Palmer Hospital for Women

and Babies located in Orlando , Florida.

DOAH served NICA with a copy of the Petitio n on

September 12 , 201 4 . On October 14 , 201 4 , DOAH received a return

receipt from the United States Postal Service showing that

Dr. Bhullar had been served with a copy of the Petition. On

October 24, 2014, DOAH received a return receipt from the United

S tates Postal Service showing that Winnie Palmer Hospital had

been served with the Petition. A copy of the Petition was mailed

to Diana Narvaez, M.D., and Yocima Plaza, M.D., on September 11,

2014.

On October 9, 2014, Orlando Health, Inc., d/b/a Wi nn ie

Pal mer Hospital for Women and Babies, Amanpreet S. Bhullar, M.D.,

Yocoima Plaza, M.D., and Diana Narvaez, M.D., filed a Petition

for Leave to Intervene which was granted by Order dated

October 22, 2014.

On October 30, 2014, Respondent filed a Motion to Dismi ss,

which was granted with leave to amend, by Order dated November 7,

2014. Petitioners filed an Amended Petition Under Protest on

November 24, 2014.

On January 15 , 201 5 , NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in section

766.302(2), Florida Statutes. On January 26, 2015, Intervenors

filed a Motion for Extension of Time in which to file a response

to NICAÓs Motion for Summary Final Order, which was gran ted by

Order dated January 27, 2015.

On February 23, 2015, Respondent filed a Supplemental Motion

for Summary Final Order. On March 12, 2015, Intervenors filed a

Response to Supplemental Motion for Summary Final Order, in which

Intervenors advised that they do not oppose the entry of a

summary final order finding that this claim is not compensable

under the Plan.

FINDINGS OF FACT

1. Elian O. Morales Galindo was born on October 27, 20 12 ,

at Wi nn ie Palmer Hospital for Women and Babies located in

Orland o , Florida. Elian weighed 3,849 grams at birth.

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

to review the medical records for Elian 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.

Dr. Willis described his findings as follows in an affidavit

dated January 14, 2015 :

5. It is my opinion, in summary, spontaneous

vaginal delivery was complicated by nu chal

cord x2 and avulsion of the cord during

reduction for delivery. Despite a normal

cord blood pH, the baby was depressed at

birth and required bag and mask ventilation

for six minutes. The baby recovered quickly

and was on room air within 24 - hours aft er

delivery. The initial blood gas after birth

had a base excess of - 12, which is consistent

with some degree of acidosis. Head

ultrasound was normal. EEG, CT scan and MRI

were not done during newborn hospital course.

Avulsion of the umbilical cord ca n occur when

a tight nuchal cord is being reduced to allow

delivery. The only risk related to cord

rupture is neonatal blood loss and resulting

hypotension. The babyÓs blood counts were

normal with a Hematocrit of 47% which would

suggest th e baby did not have a significant

blood loss at time [sic] or cord rupture.

This does not appear to be a factor in the

outcome.

There was an apparent obstetrical event that

resulted in some degree of oxygen loss during

delivery and continuing into the immediate

post - de livery period. This is based

primarily on the low Apgar scores and an

initial blood gas with a based excess of - 12.

I am unable to comment about oxygen

deprivation during labor without review [sic]

the FHR monitor tracing. No imaging studies

were done du ring the newborn hospital course

to determine if this oxygen deprivation

caused any brain injury.

6. Thereafter, I reviewed the additional

medical records, which include the motherÓs

hospital course during labor and delivery,

the fetal heart rate (FHR) tracing during

labor and an emergency room visit for the

mother at 7 weeks gestational age for nausea.

The FHR tracing during labor was reviewed.

The baseline FHR on admission was normal at

130 bpm with normal heart rate variability.

The FHR monitor trac ing does not suggest

fetal distress during labor.

7. Accordingly, it is my opinion that there

was no obstetrical event that resulted in

oxygen deprivation or brain injury to the

baby during labor.

3 . NICA retained Raymond J . Fernandez , M.D.

(Dr. Fernan dez) , a pediatric neurologist, to examine Elian and to

review h is medical records. Dr. Fernandez examined Elian on

February 11, 201 5. In the medical report attached to

RespondentÓs Supplemental Motion for Summary Final Order,

Dr. Fernandez opined as foll ows :

CONCLUSION: There is no evidence for

substantial motor or physical impairment.

Elian walked on time and gross and fine motor

skills are improving at a steady pace based

on history and this trend should continue.

Expressive speech and receptive langua ge

development is delayed, but improving and

this trend should continue. While speech and

language delay is a predictor of later

learning difficulty, he is improving and we

do not have convincing evidence, at this

time, for substantial mental impairment t hat

will be permanent.

There was transient physical depression

immediately after birth and there was

transient respiratory distress, but he

improved within a reasonable period of time.

There was no clear evidence for neonatal

encephalopathy or multi - organ involvement.

Therefore, there is no clear evidence in the

record for brain or spinal cord injury during

labor, delivery, or the immediate post

delivery period of resuscitation.

4. While Dr. Willis and Dr. Fernandez are of the same

opinion that an obstet rical event causing oxygen deprivation did

not occur during labor, Dr. WillisÓ opinion is somewhat at odds

with Dr. FernandezÓs opinion regarding whether an obstetrical

event occurred that resulted in some degree of oxygen loss during

delivery and continui ng into the immediate post - delivery period.

However, there are no opinions filed contrary to Dr. Fernandez's

opinion that there is no evidence of substantial motor or

physical impairment or convincing evidence at this time of

substantial mental impairment that will be permanent.

Dr. Fernandez Ós 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 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.

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), and 766.305(1), Fla. Stat. NICA,

which administers the Plan, ha s "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. St at.

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

ass igned. § 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.

§§ 7 66.304, 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) 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 su bstantially

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

co urse 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 the

administrative law judge concludes that the "infant has sustained

a birth - related neurological injury and that obstetrical services

were delivered by a pa rticipating 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" means

injury to the brain or spinal cord of a live

infant weighin g 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 th e 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

Elian does not have a substantial motor or physical impairme nt

and does not have a substantial mental impairment that will be

permanent. It is noted that Petitioners stated in their Petition

Under Protest that they are not claimants. And, Intervenors do

not oppose the entry of a summary final order finding that t he

injury is not compensable under the Plan. Therefore, Elian is

not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

1. T he Petition filed by Ninsi Galindo and Wilfredo

M o rales , individually and on behalf of Elian O. Morales Galindo ,

is dismissed with prejudice.

2. The final hearing scheduled for June 17, 2015, is

canceled.

DONE AND ORDERED this 17th day of March , 2015 , in

Tallahassee, Leon County, Florida.

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 th e Clerk of the

Division of Administrative Hearings

this 17th day of March , 2015 .

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 0003 1047 7317)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0003 1047 7324)

Bradl ey Paul Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

315 E ast Robinson Street, Suite 550

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7014 2120 0003 1047 7331)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 So uthwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7014 2120 0003 1047 7348)

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 1047 7355)

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 1047 7362)

NOTICE OF RIGHT TO JUDIC IAL 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 pro ceedings 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 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).