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.
DOAH Final Order on Friday, March 31, 2017.
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).
- Date
- Proceedings
- PDF:
- Date: 05/09/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 04/14/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 04/12/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 04/10/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 04/07/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 04/06/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 03/31/2017
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- PDF:
- Date: 03/31/2017
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- PDF:
- Date: 02/14/2017
- Proceedings: Order (regarding availability, estimated hearing time, and venue for compensability hearing).
- PDF:
- Date: 02/14/2017
- Proceedings: Motion for Entry of Protective Order Regarding Confidential Documents Related to Petitioner's Medical Records filed.
- PDF:
- Date: 01/18/2017
- Proceedings: Motion For Extension of Time in Which to Respond to Petition filed.
- PDF:
- Date: 11/09/2016
- Proceedings: Motion For Extension of Time in Which to Respond to Petition filed.
- PDF:
- Date: 09/08/2016
- Proceedings: Motion for Extension of Time in Which to Respond to Petition filed.
- PDF:
- Date: 08/23/2016
- Proceedings: Order (Motion to accept K. Shipley as qualified representative granted).
- PDF:
- Date: 08/10/2016
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 08/08/2016
- Proceedings: Motion to Act as a Qualified Representative Before the Division of Administrative Hearings filed.
- PDF:
- Date: 07/28/2016
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 07/21/2016
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- PDF:
- Date: 07/21/2016
- Proceedings: Letter to Kenney Shipley from Claudia Llado enclosing NICA claim for compensation.
- Date: 07/13/2016
- Proceedings: NICA filing fee $15.00: Money Order No. 19697211101 filed (not available for viewing).
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
-
Nicole Lafontaine Malave
4517 Northwest 3rd Street
Plantation, FL 33317 -
Kenney Shipley, Executive Director
Florida Birth Related Neurological
2360 Christopher Place, Suite 1
Tallahassee, FL 32308
(850) 488-8191 -
Kenney Shipley, Executive Director
Address of Record -
Tana D Storey, Esquire
Address of Record -
Tana D. Storey, Esquire
Address of Record