16-004104N Nicole Lafontaine Malave, As Parent And Natural Guardian And On Behalf Of Josue A. Solis, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association
 Status: Closed
DOAH Final Order on Friday, March 31, 2017.


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Summary: Child did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechancial injury in the course of labor, delivery or resuscitation.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8NICOLE LAFONTAINE MALAVE, as

12parent and natural guardian and

17on behalf of JOSUE A. SOLIS, a

24minor,

25Petitioner,

26vs. Case No. 16 - 4104N

32FLORIDA BIRTH - RELATED

36NEUROLOGICAL INJURY COMPENSATION

39ASSOCIATION,

40Res pondent.

42_______________________________/

43SUMMARY FINAL ORDER OF DISMISSAL

48This cause came on for consideration upon a Motion for

58Summary Final Order filed by Respondent, Florida Birth - Related

68Neurological Association (NICA), o n February 28, 2017.

76STATEMENT OF THE CASE

80On July 11, 2016, Petitioner, Nicole Lafontaine Malave, as

89parent and natural guardian of Josue A. Solis (Josue), a minor,

100filed a Petition for Benefits Pursuant to Florida Statute Section

110766.301 et seq. (Petitio n), with the Division of Administrative

120Hearings (DOAH) for a determination of compensability under the

129Florida Birth - Related Neurological Injury Compensation Plan

137(Plan). The Petition alleged that Josue suffered neurological

145damage as the result of a dif ficult birth.

154The Petition named Mark Tomback, M.D., as the physician

163providing obstetric services at the birth of Josue at Plantation

173General Hospital in Plantation, Florida , on December 12, 2013 .

183DOAH served NICA with a copy of the Petition on July 22,

1952 016. DOAH served Mark Tomback, M.D., with a copy of the Petition

208on July 25, 2016. The website of the U . S . Postal Service

222indicates that Plantation General Hospital was served with a copy

232of the Petition on July 25, 2016.

239As of this date, neither Pla ntation General Hospital nor

249Dr. Tomback has petitioned to intervene in this proceeding.

258On February 14, 2017, NICA filed a response to the Petition,

269giving notice that the injury does not "meet the definition of a

281'birth - related neurological injury' as de fined in section

291766.302(2), Florida Statutes.Ñ NICA requested that a hearing be

300scheduled to resolve whether the claim was compensable.

308On February 28, 2017, NICA filed a Motion for Summary Final

319Order, asserting that Josue did not sustain a Ðbirth - rela ted

331neurological injuryÑ as that term is defined in section

340766.302(2), Florida Statutes. The motion was served by U.S. mail

350on February 28, 2017. No response to the m otion was filed by

363Petitioner.

364On March 14, 2017, an Order to Show Cause was entered w hich

377allowed Petitioner until March 27, 2017, to inform the

386undersigned as to why a s ummary f inal o rder of d ismissal should

401not be entered and the case closed. To date, no response has

413been filed to the Motion for Summary Final Order or to the Order

426to Sh ow Cause.

430FINDINGS OF FACT

4331. Josue A. Solis was born on December 12, 2013, at

444Plantation General Hospital in Plantation, Florida. Josue weighed

452in excess of 2,500 grams at birth.

4602. NICA retained Donald C. Willis, M.D. (Dr. Willis), to

470review JosueÓ s medical records. In a medical report dated

480August 17, 2016, Dr. Willis made the following findings and

490expressed the following opinion:

494In summary, labor was induced at 39 weeks.

502There was no fetal distress during labor. The

510baby was delivered by spo ntaneous vaginal

517birth without complications. The baby was not

524depressed and had normal Apgar scores of 9/9.

532There was no apparent obstetrical event that

539resulted in loss of oxygen or mechanical

546trauma to the babyÓs brain during labor,

553delivery or the immediate post delivery

559period.

5603. Dr. Willis reaffirmed his ultimate opinion in an

569affidavit dated February 24, 2017.

5744. Dr. WillisÓ opinion that there was no apparent

583obstetrical event that resulted in loss of oxygen or mechanical

593injury to the babyÓs brain during labor, delivery or the

603immediate post - delivery period is credited.

6105. Respondent retained Michael Duchowny, M.D.

616(Dr. Duchowny), a pediatric neurologist, to evaluate Josue.

624Dr. Duchowny reviewed JosueÓs medical records and performed an

633I nde pendent M edical E valuation on him on February 1, 2017. In a

648medical report dated February 7, 2017, Dr. Duchowny made the

658following findings and summarized his evaluation as follows:

666IN SUMMARY JosueÓs physical examination

671reveals evidence of hypotonia a nd ataxia with

679delayed language development. I believe his

685presentation is most consistent with ataxic

691hypotonic cerebral palsy. I believe his

697motor skills will improve in the future and

705it is unlikely that he will ultimately have a

714substantial motor imp airment . In all

721likelihood, Josue will continue to have a

728delayed language development.

731Ataxic cerebral palsy is a prenatally

737acquired syndrome and there is no evidence

744from the records that JosueÓs neurological

750difficulties were acquired in the course of

757labor or delivery. Furthermore, there is no

764support for either mechanical injury or

770oxygen deprivation as contributing factors.

775I am therefore not recommending Josue for

782inclusion in the NICA program.

7876. Dr. Duchowny reaffirmed his ultimate opinion in an

796affidavit dated February 27, 2017, in which he opined, Ðit is my

808opinion that IME and record review do not provide a ba s is to find

823that JosueÓs neurological difficulties were acquired in the

831course of labor, delivery or resuscitation in the immediat e

841postdelivery period. I therefore do not recommend consideration

849for inclusion within the NICA program. Ñ

8567. Dr. DuchownyÓs opinion that ataxic cerebral palsy is a

866prenatally acquired syndrome and that there was no basis found in

877the records or in his In dependent Medical Evaluation that JosueÓs

888neurological difficulties were acquired in the course of labor,

897delivery or resuscitation in the immediate post - delivery period

907is credited.

9098. A review of the file in this case reveals that there

921have been no exp ert opinions filed that are contrary to the

933opinion of Dr. Willis that there was no apparent obstetrical

943event that resulted in loss of oxygen or mechanical trauma to the

955babyÓs brain during labor, delivery or the immediate post -

965delivery period. There are no expert opinions filed that are

975contrary to Dr. DuchownyÓs opinion that ataxic cerebral palsy is

985a prenatally acquired syndrome and that there is no indication

995that JosueÓs neurological difficulties were acquired in the

1003course of labor, delivery or resu scitation in the immediate post -

1015delivery period.

1017CONCLUSIONS OF LAW

10209. The Division of Administrative Hearings has jurisdiction

1028over the parties to and the subject matter of this proceeding.

1039§§ 766.301 - 766.316, Fla. Stat. (2014).

104610. The Plan was establ ished by the Legislature "to provide

1057compensation on a no - fault basis, for a limited class of

1069catastrophic injuries that result in unusually high costs for

1078custodial care and rehabilitation." § 766.301, Fla. Stat. The

1087Plan applies only to a birth - related neurological injury, which is

1099defined in section 766.302(2) as follows:

"1105Birth - related neurological injury" means

1111injury to the brain or spinal cord of a live

1121infant weighing at least 2,500 grams for a

1130single gestation or, in the case of a multiple

1139gesta tion, a live infant weighing at least

11472,000 grams at birth caused by oxygen

1155deprivation or mechanical injury occurring in

1161the course of labor, delivery, or

1167resuscitation in the immediate postdelivery

1172period in a hospital, which renders the infant

1180permanent ly and substantially mentally and

1186physically impaired . This definition shall

1192apply to live births only and shall not

1200include disability or death caused by genetic

1207or congenital abnormality.

121011. The injured infant, her or his personal representative,

1219parents, dependents, and next of kin, may seek compensation under

1229the Plan by filing a claim for compensation with DOAH.

1239§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. The Florida

1248Birth - Related Neurological Injury Compensation Association, which

1256a dministers the Plan, has "45 days from the date of service of a

1270complete claim . . . in which to file a response to the petition

1284and submit relevant written information relating to the issue of

1294whether the injury is a birth - related neurological injury."

1304§ 766.305(4), Fla. Stat.

130812. If NICA determines that the injury alleged in a claim is

1320a compensable birth - related neurological injury, it may award

1330compensation to the claimant, provided that the award is approved

1340by the Administrative Law Judge to whom t he claim has been

1352assigned. § 766.305(7), Fla. Stat. If, on the other hand, NICA

1363disputes the claim, as it has in the instant case, the dispute

1375must be resolved by the assigned Administrative Law Judge in

1385accordance with the provisions of chapter 120, Fl orida Statutes.

1395§§ 766.304, 766.309, and 766.31, Fla. Stat.

140213. In discharging this responsibility, the Administrative

1409Law Judge must make the following determinations based upon all

1419available evidence:

1421(a) Whether the injury claimed is a birth -

1430relate d neurological injury. If the claimant

1437has demonstrated, to the satisfaction of the

1444administrative law judge, that the infant has

1451sustained a brain or spinal cord injury caused

1459by oxygen deprivation or mechanical injury and

1466that the infant was thereby ren dered

1473permanently and substantially mentally and

1478physically impaired, a rebuttable presumption

1483shall arise that the injury is a birth - related

1493neurological injury as defined in s.

1499766.302(2).

1500(b) Whether obstetrical services were

1505delivered by a particip ating physician in the

1513course of labor, delivery, or resuscitation in

1520the immediate postdelivery period in a

1526hospital; or by a certified nurse midwife in a

1535teaching hospital supervised by a

1540participating physician in the course of

1546labor, delivery, or resus citation in the

1553immediate postdelivery period in a hospital.

1559§ 766.309(1), Fla. Stat. An award may be sustained only if the

1571Administrative Law Judge concludes that the "infant has sustained

1580a birth - related neurological injury and that obstetrical servic es

1591were delivered by a participating physician at birth."

1599§ 766.31(1), Fla. Stat.

160314. In the instant case, Petitioner filed a claim alleging

1613that Josue suffered neurological damage as the result of a

1623difficult birth, and sought NICA benefits. As the pro ponent of

1634the issue of compensability, the burden of proof is upon

1644Petitioner. § 766.309(1)(a), Fla. Stat. See also Balino v. Dep't

1654of Health & Rehab ilitative Servs. , 348 So. 2d 349, 350 (Fla. 1st

1667DCA 1977)("[T]he burden of proof, apart from statute, is on the

1679party asserting the affirmative of an issue before an

1688administrative tribunal.").

169115. The evidence, which is not refuted, established that

1700Josue did not sustain an injury to the brain or spinal cord caused

1713by oxygen deprivation or mechanical injury in the course of labor,

1724delivery or resuscitation in the immediate post - delivery period

1734which rendered him permanently and substantially mentally and

1742physically impaired. Thus, Josue is not entitled to benefits

1751under the Plan.

1754CONCLUSION

1755Based on the for egoing Findings of Fact and Conclusions of

1766Law, it is ORDERED:

1770That the Petition filed by Nicole Lafontaine Malave, as

1779parent and natural guardian of Josue A. Solis, a minor, is

1790dismissed with prejudice.

1793DONE AND ORDERED this 31st day of March , 2017 , in

1803T allahassee, Leon County, Florida.

1808S

1809BARBARA J. STAROS

1812Administrative Law Judge

1815Division of Administrative Hearings

1819The DeSoto Building

18221230 Apalachee Parkway

1825Tallahassee, Florida 32399 - 3060

1830(850) 488 - 9675

1834Fax Filing (850 ) 921 - 6847

1841www.doah.state.fl.us

1842Filed with the Clerk of the

1848Division of Administrative Hearings

1852this 31st day of March , 2 017 .

1860COPIES FURNISHED:

1862(via certified mail)

1865Kenney Shipley, Executive Director

1869Florida Birth Related Neurological

1873Injury Compensa tion Association

18772360 Christopher Place, Suite 1

1882Tallahassee, Florida 32308

1885(eServed)

1886(Certified Mail No. 7015 0640 0003 7650 2002)

1894Nicole Lafontaine Malave

18974517 Northwest 3rd Street

1901Plantation, Florida 33317

1904(Certified Mail No. 7015 0640 0003 7650 2019 )

1913Tana D. Storey, Esquire

1917Rutledge Ecenia, P.A.

1920Suite 202

1922119 South Monroe Street

1926Tallahassee, Florida 32301

1929(eServed)

1930(Certified Mail No. 7015 0640 0003 7650 2026)

1938Amie Rice, Investigation Manager

1942Consumer Services Unit

1945Department of Health

19484052 Bald Cypress Way, Bin C - 75

1956Tallahassee, Florida 32399 - 3275

1961(Certified Mail No. 7015 0640 0003 7650 2033)

1969Justin Senior , Secretary

1972Health Quality Assurance

1975Agency for Health Care Administration

19802727 Mahan Drive, Mail Stop 1

1986Tallahassee, Florida 32308

1989(eServe d)

1991(Certified Mail No. 7015 0640 0003 7650 2040)

1999Plantation General Hospital

2002Attention: Risk Management

2005401 Northwest 42nd Avenue

2009Plantation, Florida 33317

2012(Certified Mail No. 7015 0640 0003 7650 2057)

2020Mark Tomback, M.D.

2023Suite 306

20254101 Northwest 4th St reet

2030Plantation, Florida 33317

2033(Certified Mail No. 7015 0640 0003 7650 2064)

2041NOTICE OF RIGHT TO JUDICIAL REVIEW

2047Review of a final order of an administrative law judge shall be

2059by appeal to the District Court of Appeal pursuant to section

2070766.311(1), F lorida Statutes. Review proceedings are governed by

2079the Florida Rules of Appellate Procedure. Such proceedings are

2088commenced by filing the original n otice of a dministrative a ppeal

2100with the a gency c lerk of the Division of Administrative Hearings

2112within 30 days of rendition of the order to be reviewed, and a

2125copy, accompanied by filing fees prescribed by law, with the

2135clerk of the appropriate District Court of Appeal. See

2144§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

2154Injury Comp. Ass'n v. C arreras , 598 So. 2d 299 (Fla. 1st DCA

21671992).

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Proceedings: Response to Petition for Benefits filed.
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Proceedings: Order Granting Extension of Time.
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Proceedings: Motion For Extension of Time in Which to Respond to Petition filed.
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Proceedings: Order Granting Extension of Time.
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Proceedings: Motion For Extension of Time in Which to Respond to Petition filed.
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Date: 09/21/2016
Proceedings: Order Granting Extension of Time.
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Proceedings: Motion for Extension of Time in Which to Respond to Petition filed.
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Proceedings: Order (Motion to accept K. Shipley as qualified representative granted).
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Proceedings: Letter to Kenney Shipley from Claudia Llado enclosing NICA claim for compensation.
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Proceedings: Initial Order.
Date: 07/13/2016
Proceedings: NICA filing fee $15.00: Money Order No. 19697211101 filed (not available for viewing).
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Date: 07/11/2016
Proceedings: Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. filed.

Case Information

Judge:
BARBARA J. STAROS
Date Filed:
07/13/2016
Date Assignment:
07/21/2016
Last Docket Entry:
05/09/2017
Location:
Plantation, Florida
District:
Southern
Agency:
Florida Birth-Related Neurological Injury Compensation Associati
Suffix:
N
 

Counsels

Related Florida Statute(s) (8):