16-001858N Chayanni Martin, On Behalf Of And As Parent And Natural Guardian Of Jaciel Jael Baez Martin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, June 8, 2017.

Summary: The child does not have a permanent and substantial mental or physical impairment and, therefore, is not eligible for NICA benefits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHAYANNI MARTIN, on behalf of

and as parent and natural

guardian of JACIEL JAEL BAEZ

MARTIN, a minor,

Petitioner,

vs. Case No. 16 - 1858N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ELIZA GALLO BRUSCATO, M.D.;

TULLIE RAMIREZ, M.D.; AND

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL,

Intervenors.

_______________________________/

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 May 2,

2017.

STATEMENT OF THE CASE

On March 28, 2016, Petitioner, Chayanni Martin, on behalf of

and as parent and natural guardian of Jaciel Jael Baez Martin

(Jaciel), a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. (Petition) with the

Division of Administrative Hearings (DOAH) for a determination of

compensabil ity under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan).

The Petition named Eliza Gallo Bruscato, M.D., as the

physician who provided obstetric services at the birth of Jaciel

on January 13, 2016, at Winnie Palmer Hospital for Wo men located

in Orlando, Florida.

DOAH served Winnie Palmer Hospital with a copy of the

Petition on April 4, 2016. DOAH served NICA with a copy of the

Petition on April 6, 2016. On April 25, 2016, Eliza Gallo

Bruscato, M.D., Tullie Ramirez, M.D., and Orla ndo Health, Inc.,

d/b/a Winnie Palmer Hospital, filed a Petition for Leave to

Intervene, which was granted.

On March 30, 2017, NICA filed a Response to Petition for

Benefits, asserting that Jaciel did not sustain a "birth - related

neurological injury" as that term is defined in section

766.302(2), Florida Statutes, and requested that a hearing be

scheduled to determine compensability.

On May 2, 2017, Respondent filed a Motion for Summary Final

Order, stating that Intervenors did not intend to contest N ICAÓs

decision that the claim is not compensable. Petitioner did not

file a response to NICAÓs Motion.

On May 16, 2017, an Order to Show Cause was entered which

allowed Petitioner until June 1, 2017, to inform the undersigned

in writing as to why the moti on should not be granted and a

summary final order be entered finding PetitionerÓs claim is not

compensable. To date, no response has been filed by Petitioner

to NICAÓs Motion for Summary Final Order or to the Order to Show

Cause.

FINDINGS OF FACT

1 . Jaciel Martin was born on January 13, 2016, at Winnie

Palmer Hospital, located in Orlando, Florida.

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

to review the medical records for Jaciel. In a medical report

dated June 6, 2016, Dr. Will is summarized his findings and opined

in pertinent part as follows:

In summary, labor was complicated by

prolonged rupture of the membranes and

suspected chorioamnionitis. The FHR tracing

was not available for review, but medical

records describe minimal variability and

tachycardia. Delivery was complicated by a

shoulder dystocia. The baby was

significantly depressed and [sic] birth and

the depression continued with an Apgar score

of only 5 at twenty minutes. Cord blood gas

was consistent with acidosis (pH 6.98). The

newborn hospital course was complicated with

multi - system organ failures, consistent with

hypoxic birth injury. Head ultrasound

identified multifocal hemorrhage.

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. The

oxygen deprivation appears to have resulted

in brain injury. I am unable to comment

about the severity of the injury.

3. NICA retained Laufey Y. Sigur dardottir, M.D.

(Dr. Sigurdardottir), a pediatric neurologist, to examine Jaciel

and to review his medical records. Dr. Sigurdardottir examined

Jaciel on March 15, 2017. In a medical report dated February 15,

2017, Dr. Sigurdardottir summarized her exami nation of Jaciel and

opined in pertinent part as follows:

Summary: Jaciel is a 14 - month - old with

hypoxic ischemic event at birth, requiring a

cooling protocol, as well as left arm

weakness. There has been very favorable

recovery. On neurologic exam toda y he is

normal, both with motor skills and cognition

and language development. There are no signs

of autistic features.

Result as to question 1: Jaciel is not found

to have substantial physical or mental

impairment at this time.

Results as to question 2: In review of

available documents, he does have the

clinical picture of an acute birth - related

hypoxic injury, as well as reversible

neurologic impairment from mechanical injury

of brachial plexus.

Result as to question 3: The prognosis for

full mot or and mental recovery is excellent

and his life expectancy is full.

In light of his normal cognitive abilities

and normal neurologic exam, I do not feel

that Jaciel should be included in the NICA

program. If needed, I will be happy to

answer additiona l questions.

4. 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. Willis that there was an apparent obstetrical

event that resulted in loss of oxygen to the baby's brain during

labor, delivery , and the post - delivery period which resulted in

brain injury. Dr. WillisÓ opinion is credited. There are no

expert opinions filed that are contrary to Dr. SigurdardottirÓs

opinion that Jaciel does not have a substantial physical or

menta l impairment. Dr. SigurdardottirÓs opinion is credited.

5. Dr. Sigurdardottir reaffirmed her opinions in an

affidavit dated April 24, 2017.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

over the parties to and the subjec t matter of these proceedings.

§§ 766.301 - 766.316, Fla. Stat.

7. The Plan was 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.

8. 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 whethe r the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

9. 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 awar d 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 jud ge in

accordance with the provisions of chapter 120, Florida Statutes.

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

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available eviden ce:

(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 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).

(b) Wheth er 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 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 - rel ated neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

11. The term "birth - related neurological injury" is defined

in section 766.302(2) as follows:

"Birth - related neurologi cal 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 mechani cal 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.

12. To be compensable under the NICA Pla n, there must have

been an obstetrical event which resulted in loss of oxygen to the

babyÓs brain during labor, delivery, or resuscitation in the

immediate post - delivery period resulting 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.

AssÓn v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

13. The evidence, which is not refuted, established th at

Jaciel does not have a permanent and substantial mental or

physical impairment. Therefore, Jaciel is not eligible for

benefits under the Plan.

CONCLUSION

Based on the Findings of Fact and the Conclusions of Law, it

is ORDERED that:

The Petition filed b y Chayanni Martin, on behalf of and as

parent of Jaciel Jael Baez Martin, is dismissed with prejudice.

DONE AND ORDERED this 8th day of June , 2017 , 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 8t h day of June , 2017 .

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. 7016 2710 0000 4543 0439)

Chayanni Martin

5585 LaCosta Drive

Orlando, Florida 32807

(Certified Mail No. 7016 2710 0000 4543 0446)

Henry W. Jewett, II, Esquire

Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.

201 East Pine Street, 15th Floor

Or lando, Florida 32801

(eServed)

(Certified Mail No. 7016 2710 0000 4543 0453)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7016 2710 0000 4543 0460)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7016 2710 0000 4543 0477)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Admin istration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 2710 0000 454 3 0484)

Winnie Palmer Hospital

Attention: Risk Management

83 West Miller Street

Orlando, Florida 32806

(Cer tified Mail No. 7016 2710 0000 4543 0491)

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 R ules 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, accomp anied 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).