15-002500N William F. Arbulu And Katherine C. Roman, Individually And On Behalf Of Kathaileen F. Arbulu, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Wednesday, August 24, 2016.

Summary: Child did not sustain oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM F. ARBULU and KATHERINE

C. ROMAN, individually and on

behalf of KATHAILEEN F. ARBULU,

a minor,

Petitioners,

vs. Case No. 15 - 2500N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/ a NICA,

Respondent,

and

OSCEOLA REGIONAL MEDICAL CENTER,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order fil ed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on July 22 ,

201 6 .

STATEMENT OF THE CASE

On April 29 , 201 5 , Petitioner s , William F. Arbulu and

Katherine C. Roman , individually and on behalf of Kathaileen F.

Arbul u ( Kathaileen ), a minor, 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 In jury Compensation Plan (Plan). The Petition named

Bhupendrakumar M. Patel , M . D. , as the physician who provided

obstetric services for the birth of Kathaileen on April 27, 2013,

at Osceola Regional Medical Center in Kissimmee, Florida .

DOAH served NICA w ith the Petition on May 6, 2015. DOAH

served Osceola Regional Medical Center a copy of the Petition on

May 8, 2015. DOAH mailed a copy of the Petition to

Bhupendrakumar M. Patel, M.D., on May 5, 2015. The envelope was

returned to DOAH on June 16, 201 5 , marked ÐReturn to Sender,

Unable to Forward.Ñ DOAH verified Dr. PatelÓs address on the

Department of HealthÓs website and again mailed a copy of the

Petition to Dr. Patel on June 24, 201 5 . As of the date of this

Summary Final Order of Dismissal, Dr. Pate l has not petitioned to

intervene into this proceeding.

On August 6, 2015, Osceola Regional Medical Center filed a

Petition to Intervene, which was granted by Order dated

August 17, 2015.

On July 22 , 201 6 , NICA filed a Motion for Summary Final

Order, req uesting that a s ummary f inal o rder be entered finding

that the claim was not compensable because Kathaileen did not

sustain a Ðbirth - related neurological injuryÑ as that term is

defined in section 766.302(2), Florida Statutes . The Motion

stated that Inter venor takes no position on the Motion.

Petitioners did not file a response to the Motion.

On August 4, 2016, an Order to Show Cause was entered which

allowed Petitioners until August 19, 2016, to inform the

undersigned in writing as to why the motion shou ld not be granted

and a summary final order be entered finding PetitionersÓ claim

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

Petitioners to the Motion.

FINDINGS OF FACT

1. Kathaileen F. Arbulu was born on April 27 , 2 013 , at

Osceola Regio nal Medical Center in Kissimmee , Florida.

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

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

March 9 , 201 6 , Dr. Willis described his findings in pertinent

part as follows:

The moth er was admitted to the hospital at 38

weeks for induction of labor due to

preeclampsia and a history of Gestational

Diabetes. Fetal heart rate (FHR) monitor

tracing during labor did not suggest fetal

distress. Seizure activity occurred during

the inducti on. Eclampsia was diagnosed and

intravenous MgSO4 started for management.

Cesarean section was done due to Eclampsia.

The delivery was stated to be uncomplicated.

Amniotic fluid was clear. There was a loose

nucal cord. Birth weight was 4,210 grams or

9 lbs 4 ozÓs.

The baby was not depressed. Apgar scores

were 8/8. The infant cried spontaneously at

delivery. No resuscitation was required.

The baby was given blow - by oxygen for two -

minutes and then transferred to the nursery.

There was no appare nt obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain 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 f inding that KathaileenÓs

injuries were not the result of oxygen deprivation or mechanical

injury during labor, delivery, or the immediate post - delivery

period. Dr. WillisÓ opinion is credited.

CONCLUSIONS OF LAW

4 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

5 . The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurolo gical injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

6 . 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. 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.

7 . NICA has determined that Petitioner s 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.

8 . 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 judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that t he 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. 766.303(2).

§ 766.309(1), Fla. Stat.

9 . The ter m "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

mult iple 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.

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

there was not an obstetrical event that resulted in loss of

oxygen or mechanical trauma to KathaileenÓs brain during labor,

deliver y or the immediate post - delivery period. Thus,

Kathaileen 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 William F. Arbulu

and Katherine C. Roman , individually and on behalf of Kathaileen

F. Arbulu , a minor, is dismissed with prejudice.

DONE AND ORDERED this 24th day of August , 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 24 th day of August , 2016 .

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 . 7015 0640 0001 2701 0732)

Brooke M. Gaffney , Esquire

Smith Stout Bigman and Brock , P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7015 0640 0001 2701 0749)

Richard B. Schwamm, Esquire

Haliczer Pettis & Schwamm , P.A.

Landmark Center Two, Suite 475

225 East Robinson Street

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7015 0640 0001 2701 0756)

William F. Arbulu

Katherine C. Roman

5119 Marina Drive

St. Cloud, Florida 34771

(Certified Mail No. 7 015 0640 0001 2701 0763)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0001 2701 0770)

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 0001 2701 0787)

Bhupendrakumar M. Patel, M.D.

Mid - Florida WomenÓs Center

Suite 2 and 3

207 Park Place Bouleva rd

Kissimmee, Florida 34741

(Certified Mail No. 7015 0640 0001 2701 0794)

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), Flor ida 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 da ys 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. Carr eras , 598 So. 2d 299 (Fla. 1st DCA

1992).