14-005298N Betty D. Jernigan And Carlos Santiago, Individually And On Behalf Of Kelia Santiago, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Monday, January 26, 2015.

Summary: Child'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

BETTY D. JERNIGAN AND CARLOS

SANTIAGO, i ndividually and on

behalf of KELIA SANTIAGO, a

minor,

Petitioner s ,

vs. Case No. 14 - 5298N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent,

and

ERICH WYCKOFF, M.D.,

Intervenor.

_______________________________/

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

January 8 , 201 5 .

STATEMENT OF THE CASE

On November 10 , 201 4 , Petitioners, Betty D. Jernigan and

Carlos Santiago , i ndividually and on behalf of Kelia Santiago

( Kelia ), 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

Erich Wyckoff , M.D., as the physician who provided obstetric

services for the birth of Kelia . The Petition stated that Kelia

was born at Tampa General Hospital in Tampa , Florida.

DOAH served NICA with a copy of the Petition on Novemb er 1 4 ,

201 4 . DOAH received a return receipt from the United States

Postal Service on November 19, 2014, showing that Tampa General

Hospital had been served with a copy of the Petition. DOAH

served a cop y of the Petition on Dr. Wyckoff on November 20,

201 4.

On December 11, 2014, Dr. Erich Wyckoff filed a Motion to

Intervene, which was granted by Order dated December 19, 2014.

As of the date of the Summary Final Order of Dismissal , Tampa

General Hospital has not petitioned to intervene in this

proceeding .

On January 8 , 201 5 , 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 because Kelia did not meet the

requisite minimum statutory birth weight as required by section

76 6.302(2), Florida Statutes . As of the date of this Summary

Final Order of Dismissal, no response to the Motion for Summary

Final Order has been filed . On January 20, 2015, Respondent

filed a Response to Order of January 8, 2015, and represented

that Peti tioners and Intervenor agreed with NICA that there is no

need for a hearing in this matter. It is noted that the Petition

Under Protest requests a determination that KeliaÓs injuries be

determined to be non - compensable under the Plan.

FINDINGS OF FACT

1. Kelia Santiago was born on October 25 , 2 011 , at Tampa

General Hospital in Tampa , Florida. Sh e was a single gestation.

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

to review the medical records for Ke l i a. In a report dated

December 11 , 2014, Dr. Willis described his findings in pertinent

part as follows:

Birth weight was reported as 2210 grams and

2201 grams in different sites in the motherÓs

medical records. Apgar scores were not

given. Cord blood pH was normal at 7.29.

No records we re available from the NICU for

review.

* * *

In summary, there was no fetal distress

during labor. Delivery was by repeat

Cesarean section with normal blood gas.

Birth weight was <2,500 grams.="" nicu="">

were not available for review.

This baby w as born prematurely due to

premature rupture of the membranes. Birth

weight appears to be less than 2,500 grams.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor or

delivery. N ICU records were not available,

so I have no comment about oxygen deprivation

in the post delivery period. Birth weight

was <2,500>

3. In an affidavit dated January 7, 2015, Dr. Willis

reaffirmed his opinion that t here was no apparent obstetrical

event that resulted in loss of oxygen or mechanical trauma to the

babyÓs brain during labor or delivery , and his review of the

medical records revealed that the birth weight was less than

2,500 grams.

4. A review of the file reveals that no contrary evide nce

was presented to dispute Dr. WillisÓ finding that KeliaÓs birth

weight was less than 2,500 grams, or his opinion that there was

no apparent obstetrical event that resulted in loss of oxygen or

mechanical trauma to the brain during labor or delivery.

D r. WillisÓ 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 Legislatu re "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 representati ve,

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 servi ce

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 . NICA has determined tha t 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 entered finding

that the claim is not compensable.

9 . In ruling on the motion, the Administrative Law Judge

mu st 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

susta ined 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 - re lated neurological injury

as defined in s. 766.303(2).

§ 766.309(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, deliver y, 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

Kelia was a single gestation and di d not weigh at least 2,500

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

neurological injury because s he did not meet the minimum

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

neurological injury," in section 766.302(2).

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Betty D. Jernigan

and Carlos Santiago , individually and on behalf of

Kelia Santiago , a minor, is dismissed with prejudice.

DONE AND O RDERED this 26th day of January , 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 the Clerk of the

Division of Administrative Hearings

this 26th day of January , 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 9519)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Av enue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0003 1047 9526)

Iva M. Valtcheva, Esquire

La Cava and Jacobson, P.A.

101 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 2120 0003 1047 9533)

David W. B lack, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7014 2120 0003 1047 9540)

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 9557)

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 9564)

Tampa General Hospital

Attention: Risk Management

1 Tampa General Circle

Tampa, Florida 33606

(Certified Mail No. 7014 2120 0003 1047 9571)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative la w 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 filing the original n otice of a dmi nistrative 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).