16-004105N Ailen Benitez Morales, On Behalf Of And As Parent And Natural Guardian Of Dariel Antonio Molina Benitez, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, November 30, 2016.

Summary: Child did not sustain injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AILEN BENITEZ MORALES, on behalf

of and as parent and natural

guardian of DARIEL ANTONIO

MOLINA BENITEZ, a minor,

Petitioner,

vs. Case No. 16 - 4105N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIA TION,

Respondent,

and

BAPTIST HOSPITAL OF MIAMI, INC.,

Intervenor.

_______________________________/

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 Association (NICA), on October 19, 2016.

STATEMENT OF THE CASE

On July 18, 2016, Petitioner, A ilen Benitez Morales, on

behalf of and as parent and natural guardian of Dariel Antonio

Molina Benitez (Dariel) , 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 compensability under the Florida Birth - Related

Neurological Injury Compensat ion Plan (Plan). The Petition

alleged that Dariel suffered brain damage as a result of a

difficult birth.

The Petition named Carlos G. Pena, M.D., as the physician

providing obstetric services at the birth of Dariel at Baptist

Hospital in Miami, Florida.

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

2016. DOAH served Carlos G. Pena, M.D., with a copy of the

Petition on July 25, 2016. On August 10, 2016, DOAH received a

return receipt from the United States Postal Service showing that

Baptist H ospital had been served with a copy of the Petition.

Baptist Hospital filed a Petition to Intervene, which was

granted by Order dated September 28, 2016. As of this date,

Dr. Carlos G. Pena has not petitioned to intervene in this

proceeding.

On Octobe r 6, 2016, NICA filed a response to the Petition,

giving notice that the injury 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 th e infant permanently and substantially impaired.Ñ

NICA requested that a hearing be scheduled to resolve whether the

claim was compensable.

On October 19, 2016, NICA filed a Motion for Summary Final

Order, asserting that Dariel did not sustain a Ðbirth - re lated

neurological injuryÑ as that term is defined in section

766.302(2), Florida Statutes. The motion was served by U.S. mail

on October 19, 2016. No response to the Motion was filed by

Petitioner. Intervenor, Baptist Hospital, requested an extension

o f time in which to notify the undersigned as to whether a hearing

was necessary. IntervenorÓs request was granted and was ordered

to respond by November 21, 2016. As of todayÓs date, Intervenor

has not responded. To date, no response has been filed to t he

Motion for Summary Final Order by either Petitioner or Intervenor.

FINDINGS OF FACT

1. Dariel Antonio Molina Benitez was born on September 29,

2011, at Baptist Hospital in Miami, Florida. Dariel weighed in

excess of 2,500 grams at birth.

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

review DarielÓs medical records. In an affidavit dated

October 17, 2016, Dr. Willis made the following findings and

expressed the following opinion:

5. In summary, Cesarean section was done for

variable FHR decelerations during labor. The

baby was not depressed at birth. Apgar scores

were 9/9 and the baby stated to be vigorous

after birth. The medical records do not

suggest a birth related hypoxic event.

6. There was no apparent obstetrical event

that re sulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery or the immediate post delivery

period.

3. Dr. WillisÓ opinion that there was no apparent

obstetrical event that resulted in loss of oxygen or mechanical

trauma to th e babyÓs brain during labor, delivery or the

immediate post - delivery period is credited.

4. Respondent retained Michael Duchowny, M.D.,

(Dr. Duchowny), a pediatric neurologist, to evaluate Dariel.

Dr. Duchowny reviewed DarielÓs medical records and perfor med an

independent medical examination on him on September 21, 2016.

Dr. Duchowny made the following findings and summarized his

evaluation as follows:

IN SUMMARY DarielÓs general, physical and

neurological examinations today are entirely

within normal limits. There are no focal or

lateralizing findings to suggest a structural

brain injury.

I have reviewed medical records for Dariel

sent by your office on September 16, 2016.

The records are primarily directed at long -

term follow up and confirm that Da rielÓs

overall development has proceeded normally

with a slight expressive language delay. An

MRI scan of the brain on September 10, 2015,

apparently revealed mild generalized cortical

atrophy but was otherwise within normal

limits. Dariel underwent a ge netic workup

including a chromosomal microarray that was

normal. All other laboratory parameters were

similarly within normal limits. An EEG

obtained on April 1, 2014 was unremarkable.

Given DarielÓs normal mental and physical

status, I am not recommen ding him for

compensation within the NICA program.

5. Dr. Duchowny stated his ultimate opinion in an affidavit

dated October 18, 2016, in which he opined, ÐBased on review of

the medical records and the neurological evaluation and given

DarielÓs normal and physical status, Dariel does not have a

substantial and permanent mental or motor impairment, and I am

not recommending him for compensation within the NICA program.Ñ

6. Dr. DuchownyÓs opinion that Dariel does not have a

substantial and permanent ment al or motor impairment 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. Willis that there was no apparent obstetrical

event that resulted in loss of oxygen or m echanical trauma to the

babyÓs brain during labor, delivery or the immediate post -

delivery period. There are no expert opinions filed that are

contrary to Dr. DuchownyÓs opinion that Dariel does not have a

substantial and permanent mental or motor impairm ent.

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 established by the Legislature "to provide

compens ation 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 se ction 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

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 . 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 ne xt 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. The Florida

Birth - Related Neurological Injury Compensation Association, which

administers the Plan, has "4 5 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 neurological 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 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 Judge in

accordance with the provisions of 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 infant was thereby rendered

permanently and subst antially 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

delivered by a participating physician in the

cour se 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 p ostdelivery 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 obstetrical services

were delivered by a part icipating physician at birth."

§ 766.31(1), Fla. Stat.

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

that Dariel did sustain a birth - related neurological injury that

is compensable under the NICA Plan. As the proponent of the issue

of compe nsability, 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 proof, apart from statute, is on the party asserting the

affirma tive of an issue before an administrative tribunal.").

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

Dariel did not sustain an injury to the brain or spinal cord

caused by oxygen deprivation or mechanical injury in the course of

labor, delivery or resuscitation in the immediate post - delivery

period which rendered him permanently and substantially mentally

and physically impaired. Thus, Dariel is not entitled to benefits

under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is ORDERED:

That the Petition filed by Ailen Benitez Morales, on behalf

of and as parent and natural guardian of Dariel Antonio Molina

Benitez, is dismissed with prejudice.

DONE AND ORDERED this 30th day of November , 2016 , in

Tallahasse e, 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 - 684 7

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation A ssociation

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0001 0080 6311)

Ailen Benitez Morales

13530 Southwest 38th Street

Miami, Florida 33175

(Certified Mail No. 7012 3050 0001 0080 6328)

Scott Edw ard Solomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon and Bonner, P.A.

Suite 500

135 San Lorenzo Avenue

Coral Gables, Florida 33146

(eServed)

(Certified Mail No. 7012 3050 0001 0080 6335)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

780 5 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7012 3050 0001 0080 6342)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certif ied Mail No. 7012 3050 0001 0080 6359)

Justin Senior , Interim Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 3050 0001 0080 6366)

Carlo s G. Pena, M.D.

8940 North Kendall Drive

Miami, Florida 33176

(Certified Mail No. 7012 3050 0001 0080 6373)

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 pu rsuant 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 Ad ministrative 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 Neuro logical

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

1992).