15-000421N Whitney F. Liriano And Kevin Ramos, Individually And On Behalf Of Noah E. Ramos, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, June 22, 2016.

Summary: Child does not have a permanent and substantial physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WHITNEY F. LIRIANO and KEVIN

RAMOS, individually and on

behalf of NOAH E. RAMOS, a

minor,

Petitioners,

vs. Case No. 15 - 0421N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

& BABIES ; PHYSICIAN ASSOCIATES,

LLC ; AND PAMELA CATES - SMITH,

M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This ca use came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Association (NICA), on May 3, 2016.

STATEMENT OF THE CASE

On January 20, 2015, Petitioners, Whitney F. Liriano and

Kevin Ramos, indi vidually and on behalf of Noah E. Ramos (Noah), a

minor, filed a Petition Under Protest Pursuant to Florida Statute

Section 766.301 et seq. (Petition), with the Division of

Administrative Hearings (DOAH). The Petition was subsequently

amended twice, and t he Second Amended Petition Under Protest was

filed on December 18, 2015.

The Petition named Pamela Cherie Cates - Smith, M.D., as the

physician providing obstetric services at the birth of Noah at

Winnie Palmer Hospital in Orlando, Florida. The Second Ame nded

Petition alleged that a non - physician and non - NICA provider

midwife (unnamed) delivered Noah on October 9, 2014.

DOAH served NICA on January 26, 2015. On January 29, 2015,

DOAH received a return receipt from the United States Postal

Service showing t hat Winnie Palmer Hospital had been served with a

copy of the Petition. DOAH served Pamela Cherie Cates - Smith with

a copy of the Petition on February 3, 2015.

On February 2, 2015, Orlando Health, Inc., d/b/a Winnie

Palmer Hospital for Women and Babies ; P hysician Associates, LLC;

and Pamela Cates - Smith, M.D., filed a Petition for Leave to

Intervene, which was granted. On February 17, 2016, counsel for

Petitioners filed a Motion to Withdraw as Counsel of Record, which

was granted on March 1, 2016.

On March 1, 2016, NICA filed a response to the Second Amended

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

that the in jury render 'the infant permanently and substantially

mentally and physically impaired.'" NICA requested that a hearing

be scheduled to resolve whether the claim was compensable.

On March 28, 2016, NICA and Intervenors filed a Response to

Order indicatin g that neither NICA nor the Intervenors thought a

hearing was necessary. On May 3, 2016, NICA filed a Motion for

Summary Final Order, asserting that N oah did not sustain a birth -

related neurological injury as that term is defined in section

766.302(2), Fl orida Statutes. The m otion was served by United

States mail to Petitioners on May 3, 2016. No response to the

m otion was filed by Petitioner s .

On June 3 , 201 6 , an Order to Show Cause was entered which

allowed Petitioner s until June 1 7 , 201 6, to inform t he

undersigned as to why RespondentÓs Motion for Summary Final Order

should not be granted. 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. Noah E. Ramos was born on October 9 , 2014, at Winnie

Palmer Hospital in Orlando, Florida.

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

review NoahÓs medical records. In a medical report dated

February 3, 2016, Dr. Willis made the following findings and

expressed the followin g opinion:

In summary, spontaneous vaginal delivery

resulted in a depressed newborn. Cord blood

gas was within normal limits, suggesting there

was no significant oxygen deprivation during

labor. There was no detectable heart beat at

birth. The baby res ponded to resuscitation

after birth, but respiratory distress worsened

about 2 hours after birth. The baby became

acidotic (pH 6.92) and required intubation.

MRI showed a subarachnoid hemorrhage and

ischemia. The baby was diagnosed with HIE.

There was a n apparent obstetrical event that

resulted in oxygen deprivation and some degree

of brain injury at birth and in the post

delivery period. I am not able to comment

about the severity of the brain injury.

3. Dr. Willis reaffirmed his opinion in an affida vit dated

May 2, 2016.

4. Dr. WillisÓ opinion that there was an obstetrical event

that resulted in oxygen deprivation and some degree of brain

injury at birth is credited.

5. Respondent retained Laufey Y. Sigurdardottir, M.D.

(Dr. Sigurdardottir), a pedi atric neurologist, to evaluate Noah.

Dr. Sigurdardottir reviewed NoahÓs medical records , performed an

independent medical examination on him on November 11, 2015 , and

subsequently reviewed additional medical records , on February 22,

2016. Dr. Sigurdardot tir made the following findings and

summarized her evaluation as follows:

Summary: Here we have a youngster with

evidence of neonatal asphyxia mainly by his

Apgar score of 0 at 1 minute, although rapid

improvement is noted with 6 at 5 minutes, 8

at 10 m inutes. His mother does report a 1

month long NICU stay but records indicate

discharge on 10/22. Regardless of his early

medical history, he is now age appropriate in

both cognition, visual maturity and motor

skills.

Result of question 1: The patien t is found

to have no permanent substantial physical or

motor impairment.

Result of question 2: There is evidence of

complications during NoahÓs birth that could

have resulted in hypoxic neurologic injury.

There is, however, no clear evidence in the

his tory to suggest that his low Apgar scores

are secondary to any prenatal abnormality and

is, therefore, felt to be [the] result of

perinatal oxygen deprivation.

Result of question 3: We would expect full

life expectancy.

In light of the above - mentioned d etails and

the fact that Noah has no current signs of

neurologic sequelae, I do not recommend Noah

to be included into the Neurologic Injury

Compensation Association (NICA) program and

would be happy to answer additional

questions.

6. Dr. Sigurdardottir reaffirmed her opinions in an

affidavit dated April 29, 2016.

7. In order for a birth - related injury to be compensable

under the Plan, the injury must meet the definition of a birth -

related neurological injury and the injury must have caused both

permane nt and substantial mental and physical impairment.

8. Dr. SigurdardottirÓs opinion that Noah does not have a

substantial physical or motor impairment is credited.

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

have been no expert opinions filed that are contrary to the

opinion of Dr. Sigurdardottir that Noah does not have a

substantial physical or motor impairment.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of thi s proceeding.

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

11. 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 costs for

custodial care and reh abilitation." § 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 a t 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 i mmediate 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 caused by genetic

or congenital abnormality. (emphasis added).

12. 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. 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 written info rmation relating to the issue of

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

§ 766.305(4), Fla. Stat.

13. 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 resolve d 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.

14. In discharging this responsibility, the Administrative

Law Judge must make the following deter minations 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 co rd 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

neurological 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

teach ing 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.

15. In the instant case, Petitioners filed a claim alleging

that Noah did sus tain 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 Petitioner s .

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

Rehab. 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.").

16. While Dr. Willis established that there was an apparent

obstetrical event w hich resulted in oxygen deprivation and some

degree of brain injury, the remaining issue to be determined is

whether the injury resulted in a permanent and substantial mental

impairment and a permanent and substantial physical impairment,

inasmuch as both are required to establish compensability. Fla.

Birth - Related Neurological Injury Comp. Ass'n v. Div. of Admin.

Hearings , 686 So. 2d 1349 (Fla. 1997).

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

Noah does not have a permanent and substanti al physical

impairment. Thus, Noah is not entitled to benefits under the

Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED :

T hat the P etition filed by Whitney F. Liriano and

Kevin Ramos, individually and on be half of Noah E. Ramos, is

dismissed with prejudice.

DONE AND ORDERED this 22nd day of June , 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 with the Clerk of the

Division of Administrative Hearings

this 22nd day of June , 2016 .

COPIES FURNISHED:

(via cer tified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5049)

Andrea L. Diederich, Esquire

Marshall Dennehey Warner Coleman & Goggin

315 East Robinson Street , Suite 550

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5056)

M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue , Suite 301

Jacksonville, Flor ida 32256

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5063)

Whitney F. Liriano

Kevin Ramos

Apartment 1206

2227 South Conway Road

Orlando, Florida 32812

(Certified Mail No. 7015 0640 0003 7652 5070)

Amie Rice, Investigation Manager

Consumer Servi ces Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0003 7652 5087)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5094)

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 Hear ings

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 Co mp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).