14-004742N Alessandra Keal Delvalle And Rene Delvalle, On Behalf Of And As Parents And Natural Guardians Of Isabella Delvalle, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 22, 2016.

Summary: Child's substantial mental and physical impairments were not caused by oxygen deprivation or mechanical injury to her brain.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALESSANDRA KEAL DELVALLE AND

RENE DELVALLE, on behalf of and

as parents and natural guardians

of ISABELLA DELVALLE, a minor,

Petitioners,

vs. Case No. 14 - 4742N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSA TION

ASSOCIATION,

Respondent,

and

RICHARD MCCAULEY, M.D., AND

NORTH FLORIDA OB/GYN ASSOCIATES,

INC.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for considerat ion upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Association (NICA), on February 11, 2016.

STATEMENT OF THE CASE

On September 19, 2014, Petitioners, Alessandra Keal Delvalle

and Rene Delvalle, on behalf of a nd as parents and natural

guardians of Isabella Delvalle (Isabella), a minor, filed a

Petition for Benefits Pursuant to Florida Statute Section 766.301

et seq. (Petition), with the Division of Administrative Hearings

(DOAH). The Petition alleged that Isab ella suffered brain damage

as a result of a birth - related neurological injury.

The Petition named Richard McCauley, M.D., as the physician

providing obstetric services at the birth of Isabella at Orange

Park Medical Center in Orange Park, Florida, on Janua ry 17, 2012.

DOAH served Richard McCauley, M.D., on October 17, 2014.

DOAH served NICA with a copy of the Petition on October 20, 2014.

DOAH served Orange Park Medical Center with a copy of the Petition

on October 21, 2014.

Richard McCauley, M.D. and No rth Florida OB/GYN filed a

Petition to Intervene on January 15, 2015, which was granted by

Order dated January 28, 2015. A s of this date, Orange P ark

Medical Center has not petitioned to intervene in this proceeding.

On June 17, 2015, NICA filed a respon se to the Petition,

giving notice that the injury does not "meet the definition of a

'birth - related neurological injury' as defined in section

766.302(2), Florida Statutes, which specifically requires an

injury to the brain or spinal cord caused by oxygen deprivation or

mechanical injury occurring in the course of labor, delivery or

resuscitation in the immediate post delivery period. " NICA

requested that a hearing be scheduled to resolve whether the claim

was compensable.

Intervenors filed an unopposed M otion for Extension of Time

to advise as to the need for a hearing on the issue of

compensability, which was granted by Order dated July 8, 2015.

On November 12, 2015, Respondent and Intervenors filed a

Joint Response to Order indicating that they do not need or

request a final hearing in this matter. The Joint Response also

stated that Petitioners had informed them that they had been

referred to an attorney, but no attorney has entered an appearance

on behalf of Petition er s since that date. On February 11, 2016,

NICA filed a Motion for Summary Final Order. The motion was

served by email on February 10, 2016. No response to the Motion

was filed by Petitioners.

On February 24, 2016, an Order to Show Cause was entered

which allowed Petitioners until Mar ch 16, 2016, to inform the

undersigned as to why a s ummary f inal o rder should not be entered

and a summary final order be entered finding that PetitionersÓ

claim is not compensable. To date, no response has been filed to

the Motion for Summary Final Order or to the Order to Show Cause.

FINDINGS OF FACT

1. Isabella Delvalle was born on January 17, 2012, at Orange

P ark Medical Center in Orange Park, Florida. Isabella weighed in

excess of 2,500 grams at birth.

2. NICA retained Donald C. Willis, M.D. (Dr . Willis), to

review IsabellaÓs medical records. In a medical report dated

May 30, 2015, Dr. Willis made the following findings and expressed

the following opinion:

Additional medical records from Baptist

Hospital were reviewed (pages 618 - 1546). As

disc ussed in the previous report, dated

04/07/2015, the baby was delivered by Cesarean

section following failed attempt at vacuum

delivery. Apgar scores were reported as 8/9.

Cord blood gas had a normal pH of 7.26. This

would suggest there was no oxygen depr ivation

during labor or delivery.

An ARNP was present at delivery to manage the

newborn. The baby was felt to be stable

enough that the nurse left the delivery room

at about two minutes after delivery to assist

with another delivery. When she returned

a fter about five minutes, the baby was having

some respiratory distress. The baby was

transferred to the NICU for observation.

Seizure activity developed within about 24

hours of life. EEG was abnormal and

consistent with seizure activity. MRI on DOL

3 was reported as normal. Two additional

MRIÓs over the next few months were also

reported as normal. However, MRI at four

months of age showed enlargement of the

lateral ventricles since the prior exam and

was consistent with brain volume loss.

Genetic e valuation was negative. Microarray

was negative.

There was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

trauma to the babyÓs brain during labor or

delivery. I do not have any opinion about

oxygen deprivation during the immediate post

delivery period.

3. Dr. WillisÓ opinion that there was no apparent

obstetrical event that resulted in oxygen deprivation or

mechanical trauma to the babyÓs brain during labor or delivery is

credited.

4. Respondent retained Raymond Ferna ndez, M.D.

(Dr. Fernandez), a pediatric neurologist, to evaluate Isabella.

Dr. Fernandez reviewed IsabellaÓs medical records and performed

an independent medical examination on her on February 2, 2015.

Dr. Fernandez made the following findings and summar ized his

evaluation as follows in a medical report dated February 10,

2015:

IMPRESSION: There is ample evidence for

substantial mental and motor impairment that

is likely to be permanent, but etiology is

unknown. Based on record review, history and

phy sical examination, etiology cannot be

d etermined at this time. There is no

evidence in the medical record made available

to me for brain or spinal cord injury due to

oxygen deprivation or mechanical injury

during labor, delivery, or the immediate post

del ivery period of resuscitation. However,

note that I have not yet reviewed the

WolfsonÓs ChildrenÓs Hospital NICU admission,

nor have I reviewed brain imaging studies

presumably performed while at WolfsonÓs.

Re c ords and imaging studies have be e n

requested and an addendum to this report will

be sent to NICA upon further review.

5. On April 12, 2015, Dr. Fernandez wrote an addendum to

the above medical report after reviewing additional records:

I recently received records from Wolfson

ChildrenÓs Hospital w here Isabella was

admitted on January 18, 2012 and discharged

on May 24, 2012 and two additional admissions

to the hospital were reviewed. Also reviewed

were brain imaging studies, including two

brain CTs and four brain MRIs.

* * *

In conclusion, as p reviously states [sic]

there is ample evidence for substantial

mental and physical impairment that likely

will be premanent. However, etiology is

unknown. There is no evidence in the record

for oxygen deprivation or mechanical injury

during labor, delive ry, or the immediate post

delivery period of resuscitation to be the

explanation for IsabellaÓs substantial mental

and motor impairment. There was a small

amount of subdural blood within the posterior

fossa, but this was not of clinical

significance. Thi s bleeding probably

occurred during labor and delivery and was

possibly due to the attempted vacuum

extraction that was unsuccessful. Again,

this is not felt to be clinically

significant. There is no evidence for

parenchymal brain hemorrhage, brain swell ing,

or brain injury due to oxygen deprivation or

mechanical injury.

6. Dr. FernandezÓs opinion that there is no evidence of

oxygen deprivation or mechanical injury during labor, delivery or

the immediate post - delivery period of resuscitation to be the

e xplanation of IsabellaÓs substantial mental and motor impairment

is credited.

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

have been no expert opinions filed that are contrary to the

opinions of Dr. Willis and Dr. Fernandez that there was no

ob stetrical event that resulted in oxygen deprivation or

mechanical injury to the babyÓs brain during labor, delivery or

the immediate post - delivery period.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (2014).

9. The Plan was established by the Legislature "to provide

compensation on a no - fault basis, for a limited class of

catastrophic injuries that result in unusually high cost s for

custodial care and rehabilitation." § 766.301, Fla. Stat. The

Plan applies only to a birth - related neurological injury, which 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, deliver y, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired . This definition shall

apply to live births only and shall not

include disability or death caus ed by genetic

or congenital abnormality.

10. 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), an d 766.305(1), Fla. Stat. The Florida

Birth - Related Neurological Injury Compensation Association, 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 submit relevant wr itten information relating to the issue of

whether the injury is a birth - related neurological injury."

§ 766.305(4), Fla. Stat.

11. If NICA determines that the injury alleged in a claim is

a compensable birth - related neurological injury, it may award

co mpensation 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 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.

12. In discharging this responsibility, the Administrative

Law Judge must make the follo wing determinations based upon all

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 substantially mentally and

physically impaired, a rebuttable presumption

shall arise that the injury is a birth - related

neurologi cal injury as defined in s.

766.302(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 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 3 . In the instant case, Petitioners filed a claim alleging

that Is abella did sustain a birth - related neurological injury that

is compensable under the NICA plan. As the proponent of the issue

of compensability, the burden of proof is upon Petitioners.

§ 766.309(1)(a), Fla. Stat. See also Balino v. Dep't of Health &

R ehab. Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he

burden of proof, apart from statute, is on the party asserting the

affirmative of an issue before an administrative tribunal.").

1 4 . Dr. Willis established that there was no apparent

obstetrical event which resulted in loss of oxygen or mechanical

injury to IsabellaÓs brain during labor or delivery. This opinion

is consistent with Dr. FernandezÓs opinion that IsabellaÓs

substantial mental and motor impairments were not caused by oxygen

deprivati on or mechanical injury during labor, delivery or

continuing into the immediate resuscitation period.

1 5 . The evidence, which is not refuted, established that

IsabellaÓs substantial mental and physical impairments were not

caused by oxygen deprivation or mechanical injury to her brain

during labor, delivery or the immediate post - delivery period.

Thus, Isabella is not entitled to benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Pe tition filed by Alessandra Keal

Delvalle and Rene Delvalle, on behalf of and as parents and

natural guardians of Isabella Delvalle, is dismissed with

prejudice.

DONE AND ORDERED this 22nd day of March , 2016 , 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 wit h the Clerk of the

Division of Administrative Hearings

this 22nd day of March , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, S uite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8772)

Shylie A. Bannon, Esquire

Wicker, Smith, O'Hara

McCoy and Ford, P.A.

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7014 1200 00 02 3330 8789)

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8796)

Alessandra Keal Devalle

Rene Delvalle

3032 Plantation Ridge Drive

Green Cove Springs, Florida 32043

(Certified Mail No. 7014 1200 0002 3330 8802)

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 1200 0002 3330 8819)

E lizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 1200 0002 3330 8826)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a fi nal 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 f iling 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 app ropriate 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).