15-000420N Aiza P. Velazquez And Enemias Velazquez, Individually And On Behalf Of Bentley X. Velazquez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 23, 2015.

Summary: Claim against NICA barred by statute of limitations. Child's injury suffered at birth was not related to a hypoxic event or trauma during labor, delivery or the immediate post-delivery period, hence, not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AIZA P. VELAZQUEZ and ENEMIAS

VELAZQUEZ, individually and on

behalf of BENTLEY X. VELAZQUEZ,

a minor,

Petitioners,

vs. Case No. 15 - 0420N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

JOHN J. ORREGO FRANCO, M.D.,

Intervenor.

_______________________________/

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 April 3 ,

201 5 .

STATEMENT OF THE CASE

On January 20 , 201 5 , Petitioners, Aiza P. V e lazquez and

Enemias Velazquez , individually and on behalf of Bentley X.

Velazquez ( Bentley ), a m inor, filed a Petition Under Protest

Pursuant to Florida Statute 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 P lan (Plan). The Petition named

John J. Orrego Franco , M . D. , as the physician who provided

obstetric services for the birth of Bentley on September 19,

2009 , at Health Central in Ocoee , Florida.

DOAH served NICA, John J. Orrego Franco, M.D., and Health

Cen tral a copy of the Petition on January 26, 2015.

On March 12, 2015, John J. Orrego Franco, M.D., filed a

Motion to Intervene, which was granted by Order dated March 20,

2015. As of the date of the Summary Final Order of Dismissal ,

Health Central has not petitioned to intervene in this

proceeding.

On April 3 , 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 Bentley did not

sustain a Ðbirth - related neurolo gical injuryÑ as that term is

defined in section 766.302(2), Florida Statutes . NICA

represented in the Motion that Intervenor has no objection or

opposition to this motion or the relief sought by the motion. It

is noted that the Petition was filed ÐUnder ProtestÑ and that

Petitioner s are described therein as Ðnot claimant s .Ñ

FINDINGS OF FACT

1. Bentley X. Velazquez was born on September 19 , 2 009 , at

Health Central in Ocoee , Florida.

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

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

March 9 , 201 5 , Dr. Willis described his findings in pertinent

part as follows:

Fetal heart rate (FHR) monitor tracing during

labor was reviewed. The FHR pattern was

reactive and did not suggest f etal distress.

Delivery was by spontaneous vaginal birth.

Birth weight was 3,327 grams (7 lbs 5 ozÓs).

There was a loose nuchal cord. The newborn

was not depressed. Apgar scores were 9/10.

No resuscitation was required.

Newborn exam noted Ðear shape tilt down . Ñ

Otherwise, newborn exam was normal. The baby

was not in distress. Newborn hospital course

was benign. Discharge home was on DOL 2.

Right - sided weakness was noted at 6 months of

age. MRI showed an old cerebral infarct.

Coagulation evaluatio n was negative. The

child was subsequently diagnosed with spastic

hemiplegia and developmental delay. Follow

up MRIÓs showed remote insult of left middle

cerebral artery and resulting

encephalomalacia.

In summary, labor and delivery were

apparently with out complications. Delivery

was by spontaneous vaginal birth. The baby

was not depressed. Apgar scores were 9/10.

The newborn hospital course was benign with

discharge home on DOL 2.

The child was found to have a cerebral

infarct at 6 months of age. T he infarct does

not appear to be related to a hypoxic event

or trauma during labor, delivery or the

immediate post - delivery period.

3. A review of the file reveals that no contrary evidence

was presented to dispute Dr. WillisÓ finding that while Bentley

was found to have a cerebral infarct at 6 months of age,

BentleyÓs injuries were not related to a hypoxic event or trauma

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

Dr. WillisÓ opinion is credited.

4. The Petition was filed on January 20, 2015, which is

more than five years after BentleyÓs birth.

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 w as 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, h er 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 whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat .

8 . 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 entered finding

that the claim is not compensable.

9 . In ruling on the motion, the a dministrative l aw ju dge

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 j udge, 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 aris e that the

injury is a birth - related 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

inj ury 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

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

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

alth ough Bentley was found to have a cerebral infarct at six

months of age, the infarct was not related to a hypoxic event or

trauma during labor, delivery or the immediate post - delivery

period. Thus, Bentley is not eligible for benefits under the

Plan.

12. Moreover, the Petition for Benefits was filed more than

five years after the birth of Bentley. 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 Aiza P. Velazquez

and Enemias Velazquez , individually and on behalf of Bentley X.

Velazquez , a minor, is dismissed with prejudice.

DONE AND ORDERED this 23rd day of April , 2015 , in

Tal lahassee, 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 23rd day of April , 2015 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensati on Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 0456)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Ave.

Orlando, Florida 32803

(eServed)

(Certified Mail No . 7014 2120 0003 1053 0463)

Jeffrey P. Brock, Esquire

Smith Stout Bigman and Brock PA

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(eServed)

( Certified Mail No. 7014 2120 0003 1053 0470)

Michael R. D ' Lugo, Esquire

Wicker, Smith, O ' Har a, McCoy, Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802

(eServed)

( Certified Mail No. 7014 2120 0003 1053 0487)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 3 2399 - 3275

(Certified Mail No. 7014 2120 0003 1053 0494)

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 1053 0500)

Heal th Central

Attention: Risk Management

10000 West Colonial Drive

Ocoee, Florida 34761

(Cer tified Mail No. 7014 2120 0003 1053 0517)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the Dis trict 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 le rk 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).