15-006715N Erika L. Guerrero And Vinicio Concepcion, Individually And On Behalf Of Xavier Concepcion, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A/ Nica Status: Closed DOAH Final Order on Thursday, June 23, 2016.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ERIKA L. GUERRERO and VINICIO

CONCEPCION, individually and on

behalf of XAVIER CONCEPCION, a

minor,

Petitioners,

vs. Case No. 15 - 6715N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a N ICA,

Respondent.

_______________________________/

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 Associa tion (NICA), on June 20, 2016.

STATEMENT OF THE CASE

On November 18, 2015, Petitioners, Erika L. Guerrero and

Vinicio Concepcion, individually and on behalf of

Xavier Concepcion (Xavier), 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 requested a determination that XavierÓs injuries are

not compensable under the NICA Plan.

The Petition named Stefan Novac, M.D., as the physician

providi ng obstetric services at the birth of Xavier at Memorial

Hospital West in Pembroke Pines, Florida , on September 16, 2014.

DOAH served NICA with a copy of the Petition on December 1,

2015. On December 7, 2015, DOAH received a return receipt from

the United States Post Office showing that Memorial Hospital West

had been served with a copy of the Petition. On January 14, 2016,

DOAH received a return receipt from the United States Post Office

showing that Stefan Novac, M.D., had been served with a copy of

the Petition. To date, neither Memorial Hospital West nor

Dr. Novac has petitioned to intervene in this proceeding.

On June 9, 2016, NICA filed a Notice of Non - compensability

and Request for Evidentiary Hearing on Compensability, giving

notice that the injur y 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 injury

render 'the infant permanently and substantially mentally and

physically impaired.'" N ICA requested that a hearing be scheduled

to resolve whether the claim was compensable.

On June 1 6, 2016, NICA and Petitioners filed a Response to

Order indicating that neither NICA nor the Petitioners thought a

hearing was necessary. On June 20, 2016, N ICA filed a Motion for

Summary Final Order, asserting that Xavier did not sustain a

birth - related neurological injury as that term is defined in

section 766.302(2), Florida Statutes. The Motion stated that

Petitioners agreed that a hearing was not necessa ry and that the

case could be disposed of pursuant to a Summary Final Order.

FINDINGS OF FACT

1. Xavier Concepcion was born on September 16, 2014, at

Memorial Hospital West in Pembroke Pines, Florida.

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

review XavierÓs medical records. In a medical report dated

January 20, 2016, Dr. Willis made the following findings and

expressed the following opinion:

In summary, labor was complicated by maternal

infection (chorioamnionitis) and a non -

reassuring FHR pattern prior to birth. The

baby was depressed at birth with a cord blood

pH of < 6.9.="" seizure="" activity="">

shortly after birth. MRI was consistent with

acute brain infarction.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs brain

during labor, delivery and continuing into the

immediate post delivery period. It is

possible the brain injury from oxygen

deprivation was worsened by infection. I am

unable to comment about the severity of the

brain injury.

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

that resulted in loss of oxygen to the babyÓs brain during labor,

delivery and continuing into the immediate post delivery period

is credited.

4. Respondent retained Michael Duchowny, M.D.

(Dr. Du chowny), a pediatric neurologist, to evaluate Xavier.

Dr. Duchowny reviewed XavierÓs medical records, and performed an

independent medical examination on him on May 25, 2016.

Dr. Duchowny made the following findings and summarized his

evaluation as follo ws:

Motor examination reveals symmetric muscle

strength, bulk and tone. There are no

adventitious movements and no focal weakness

or atrophy. Xavier does not evidence

dystonic postures or hypertonicity. He has

full range of motion at all joints.

Coord ination : Xavier walks in a stable

fashion and does not fall. He can arise from

the floor without difficulty. His balance is

good and he has well - developed axial and

peripheral balance. He grasps with both

hand[s] and moved objects between hands

without difficulty. He did not fall and his

head control is good.

* * *

In Summary, XavierÓs neurological examination

discloses no significant findings. He is

developmentally appropriate with no focal or

lateralizing features to suggest a structural

brain abn ormality.

Review of the medical records reveals that

Xavier was born at Memorial West Hospital at

term and transferred to Joe DiMaggio

ChildrenÓs Hospital. Maternal membranes were

ruptured 30 hours prior to delivery, and

maternal chorioamnionitis and fev er were

treated with penicillin. Xavier was born

vaginally and was pale, cyanotic, flaccid and

unresponsive. A tight nuchal cord was

removed. He weighed 7 pounds 7 ounces and

his Apgar scores were 1, 5 and 7 at one,

five, and ten minutes.

The records i ndicated that an initial

arterial pH was 6.95 but the base excess was

unknown. Xavier was intubated at 3 minutes

of age, established spontaneous respiration

at 25 minutes of age and was subsequently

extubated. His CBC revealed a bandemia of 22

on Septemb er 22 nd . Seizures were noted on

the first day of life and there was evidence

of a mild coagulopathy. The placenta was

positive for E.coli.

An MRI scan of the brain revealed multiple

acute infarcts in the left temporal,

occipital and superior parietal re gions and

right thalamus and putamen, and a small

subdural hematoma.

Despite XavierÓs difficulties at birth, he

has developed well and does not evidence

neurodevelopmental delay. I am therefore not

recommending Xavier for compensation within

the NICA pro gram.

5. 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

permanent and substantial mental and physical impairment.

6. Dr. DuchownyÓs opinion that Xavier has developed well

and does not evidence neurodevelopmental delay is credited.

7. 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. Duchowny that Xavier has developed well and does

not evidence neurodevelopmental delay. There is nothing in

Dr. DuchownyÓs report that indicates that Xavier has either a

substantial mental or physical impairment. Thus, Xavier does not

meet the requirement of havi ng a substantial physical or mental

impairment.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

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

9. The Plan was establ ished 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 rehabilitation." § 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 at least 2,500 grams for a

single gestation or, in the case of a multiple

gesta tion, 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

permanent ly 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).

10. The injured infant, her or his personal representative,

parents, dependents, and next of kin, may seek compensation under

the P lan 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 Ass ociation, 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 information relating to the issue of

whether the injury is a birth - related neurolo gical injury."

§ 766.305(4), Fla. Stat.

11. 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 La w 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 o f chapter 120, Florida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

12. In discharging this responsibility, the Administrative

Law Judge must make the following determinations 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 cord injury caused

by oxygen deprivation or mechanical injury and

that the infan t 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

delive red 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, d elivery, 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 o bstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

13. In the instant case, Petitioners filed a claim for a

determination of whether Xavier did sustain a birth - related

neurological injury that is compensabl e under the NICA P lan. As

the proponent of the issue of compensability, the burden of proof

is upon Petitioners. § 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 pro of, apart from statute, is on the

party asserting the affirmative of an issue before an

administrative tribunal.").

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

obstetrical event which resulted in loss of oxygen to the babyÓs

brain during l abor, delivery, and continuing into the immediate

post delivery period, 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 bo th are required to establish compensability. Fla.

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

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

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

Xavier does not have a permanent and subs tantial mental or

physical impairment. Thus, Xavier 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 Erika L. Guerrero and

Vin i cio Concepcion, individually and on behalf of Xavier

Concepcion, is dismissed with prejudice.

DONE AND ORDERED this 23rd day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of A dministrative 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 June , 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 0003 7652 51 00)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5117)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7015 0640 0003 7652 5124)

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 0003 7652 5131)

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 5148)

Stefan Novac, M.D.

8245 Northwest 36th Str eet, Unit 3

Doral, Florida 33166

(Certified Mail No. 7015 0640 0003 7652 5155)

Memorial Hospital West

Attention: Risk Management

703 North Flamingo Road

Pembroke Pines, Florida 33028

(Certified Mail No. 7015 0640 0003 7652 5162)

NOTICE OF RIGHT TO JU DICIAL 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 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).