14-005405N Jacqueline Delgado And Hugo Delgado, Individually And On Behalf Of Elissa Delgado, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Tuesday, February 10, 2015.

Summary: Child did not sustain injury to the brain caused by oxygen deprivation or mechanical injury in the course of labor or delivery.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE DELGADO AND HUGO

DELGADO, Individually and on

behalf of ELISSA DELGADO, a

minor,

Petitioner s ,

vs. Case No. 14 - 5405N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Responden t.

_______________________________/

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 Associa tion (NICA), on

January 8, 2015.

STATEMENT OF THE CASE

On November 13 , 2014, Petitioners, Jacqueline Delgado and

Hugo Delgado, individually and on behalf of Elissa Delgado

(Elissa), a minor, filed a Petition Under Protest Pursuant to

Florida Statute Secti on 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 Manal Saad

Antoun, M.D., as the physic ian providing obstetrical services at

the birth of Elissa on September 27, 2010, at Baptist Hospital

located in Miami, Florida.

DOAH served NICA with a copy of the Petition on November 19,

2014. DOAH served a copy of the Petition on Baptist Hospital on

No vember 20, 2014 . On December 1, 2014, DOAH received a return

receipt from the United States Postal Service showing that

Dr. Antoun had been served with a copy of the Petition.

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

neither Manal Saad Antoun , M.D., nor Baptist Hospital has

petitioned to intervene in this proceeding.

On January 8, 2015, NICA filed a Motion for Summary Final

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

neurological injury" as that term is defined in sec tion

766.302(2), Florida Statutes. It is noted that the Petition was

filed under protest and asserts that the parents are not

claimants. Referencing the Petition and the affidavit attached

to the Motion for Summary Final Order, NICA asserts that there

ar e no genuine issues of material fact regarding the

compensability of this claim.

No objection has been filed to the Motion. On January 20 ,

2015, NICA filed a Response to Order of January 8, 2015, advising

that Petitioners and Respondent agree that no hea ring is

necessary.

FINDINGS OF FACT

1. Elissa Delgado was born on September 27, 2010, at

Baptist Hospital located in Miami, Florida.

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

to review the medical records for Elissa. In a report dated

December 12, 2014, Dr. Willis described his findings as follows:

The mother was admitted to the hospital at 38

weeks with spontaneous rupture of the

membranes. Delivery was by spontaneous

vaginal birth. The birth weight of 2,550

grams (5 pounds 9 o zÓs) was consistent with

the prenatal ultrasound finding of fetal

growth delay. This weight is below the 10%

for gestational age.

The newborn was not depressed. Apgar scores

were 9/9. The baby was described as crying

and alert after birth.

There was n o apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor and

delivery, based on the motherÓs hospital

records.

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

confirmed his opinion as stated in his medical report and opined

as follows:

5. It is my opinion that the newborn was not

depressed. Apgar scores were 9/9. The baby

was described as crying and alert after

birth.

6. As such, it is my opinion that there was

no apparent obstetrical ev ent that resulted

in loss of oxygen or mechanical trauma to the

babyÓs brain during labor or delivery, based

on the motherÓs hospital records.

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

have been no opinions filed that are contrary to the opi nion 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 or delivery, and Petitioners have filed their

Petition under Protest, stating that they are not claimants.

Dr. 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 Leg islature "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 repres entative,

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

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.

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 demonst rated, 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 ph ysically 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

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 h ospital.

§ 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 bi rth."

§ 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

pe riod in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

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

deprivation or mechanica l injury in the course of labor or

delivery. Therefore, Elissa 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 Jacqueline Delgado

and Hugh Delgado, individually and on behalf of Elissa Delgado, a

minor, is dismissed with prejudice.

DONE AND ORDERED this 10th day of February , 2015 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law J udge

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 10th da y of February , 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 1048 2014)

Maria D. Tejedor, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0003 1048 2021)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Sout hwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7014 2120 0003 1048 2038)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Ma il No. 7014 2120 0003 1048 2045)

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 1048 2052)

Manal Saad Antoun, M.D.

Sui te 103

9595 North Kendall Drive

Miami, Florida 33176

(Certified Mail No. 7014 2120 0003 1048 2069)

Baptist Hospital

Attention: Risk Management

8900 North Kendall Drive

Miami, Florida 33176

(Certified Mail No. 7014 2120 0003 1048 2076)

NOTICE OF RIGHT TO JUDICIAL 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 proceedings 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 prescrib ed 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).