16-005498N Barbara Reyes, On Behalf Of And As Parent And Natural Guardian Of Ashley Monzon, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, December 8, 2016.

Summary: There was no apparent obstetric event that resulted in oxygen deprivation or mechanical trauma to the baby's brain during labor, delivery, or the immediate post-delivery period. Therefore, the child is not eligible to receive benefits of the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA REYES, on behalf of and

as parent and natural guardian

of ASHLEY MONZON, a minor,

Petitioner,

vs. Case No. 16 - 5498N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

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 Injury Compensation Association (NICA), on

November 2 , 201 6 .

STATEMENT OF THE CASE

On September 14 , 201 6 , Petitioner, Barbara Reyes, on behalf

of and as parent and natural guardian of Ashley Monzon ( Ashley ),

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 Compensation Plan (Plan). The Petition named

Lorena Tinoco , M . D. , as the physician who pro vided obstetric

services for the birth of Ashley on July 31, 2013, at West

Kendall Baptist Hospital in Miami, Florida .

DOAH served NICA with the Petition on September 23, 2016.

On October 3, 2016, DOAH received a return receipt from the

United States Po stal Service showing that West Kendall Baptist

Hospital was served with a copy of the Petition. DOAH served a

copy of the Petition on Lorena Tinoco, M.D., on September 28,

2016. As of the date of this Summary Final Order of Dismissal,

neither West Kendal l Baptist Hospital nor Dr. Tinoco has

petitioned to intervene into this proceeding.

On November 2 , 201 6 , NICA filed a Motion for Summary Final

Order, requesting that a s ummary f inal o rder be entered finding

that the claim was not compensable because Ashle y did not sustain

a Ðbirth - related neurological injuryÑ as that term is defined in

section 766.302(2), Florida Statutes . Petitioner did not file a

response to the Motion.

On November 16, 2016, an Order to Show Cause was entered

which allowed Petitioner un til December 1, 2016, to inform the

undersigned in writing as to why the motion 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 the Motion or to the Order to Show Cause.

FINDINGS OF FACT

1. Ashley Monzon was born on July 31 , 2 013 , at West Kendall

Baptist Hospital in Miami , Florida.

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

to review the medical records for Ashley . In a n af fidavit dated

November 2 , 201 6 , Dr. Willis described his findings in pertinent

part as follows:

5. It is my opinion that the prenatal course

was essentially uncomplicated. Labor was

induced at term. There was no t fetal

distress during labor. Delivery w as

complicated by a compound presentation and

shoulder dystocia. Bag and mask ventilation

and CPAP were required for the first minute

of life, but the baby Ðpinked up quicklyÑ and

was discharged home 2 days after birth. The

baby was subsequently diagnose d with

microcephaly. MRIÓs were normal . Pediatric

Neurology diagnosed Encephalopathy of unknown

cause.

6. A s such, it is my opinion that there was

no apparent obstetrical event that resulted

in loss of oxygen or mechanical trauma to the

babyÓs brain d uring labor, delivery or the

immediate post delivery period.

3. A review of the file reveals that no contrary evidence

was presented to dispute Dr. WillisÓ finding that AshleyÓs

injuries were not the result of oxygen deprivation or mechanical

trauma du ring labor, delivery, or the immediate post - delivery

period. Dr. WillisÓ opinion is credited.

CONCLUSIONS OF LAW

4 . The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

§§ 766.301 - 76 6.316, Fla. Stat.

5 . 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.

6 . 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 whether the injury is a birth - related neurological

injury." § 766.305(4), Fla. Stat.

7 . NICA has determined that Petitioner does not have a

claim that is compensable under the Plan and has filed a Motion

for Summary Final Order, requesting that an order be entered

finding that the claim is not compensa ble.

8 . In ruling on the motion, the a dministrative l aw ju dge

must make the following determination based upon the available

evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisf action 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).

§ 766.309(1), Fla. Stat.

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

in section 766.302(2) as follows:

"Birth - relat ed 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

deprivatio n 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.

10 . The evidence, which is n ot refuted, established that

there was not an obstetrical event that resulted in loss of

oxygen or mechanical trauma to AshleyÓs brain during labor,

delivery or the immediate post - delivery period. Thus, Ashley is

not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Barbara Reyes , on

behalf of and as parent and natural guardian of Ashley Monzon , a

minor, is dismissed with prejudice.

DONE AND ORDER ED this 8th day of December , 2016 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 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 8th day of December , 2016 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Bir th Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0001 2705 7034)

Barbara Reyes

Apartment 3

123 Northwest 47 Avenue

Miami, Florida 33126

(Cert ified Mail No. 7013 1710 000 0 1617 1190)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7013 1710 0000 1617 1206)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 1710 0000 1617 1213)

Justin Senior , Interim Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mai l Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7013 1710 0000 1617 1220)

Lorena Tinoco, M.D.

Suite 304

8200 Southwest 117th Avenue

Miami, Florida 33183

(Certified Mail No. 7013 1710 0000 1617 1237)

West Kendall Baptist Hospital

Atten tion: Risk Management

9555 Southwest 162nd Avenue

Miami, Florida 33196

(Certified Mail No. 7013 1710 0000 1617 1244)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

by appeal to the District Court o f 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 Div ision 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 - Re lated Neurological

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

1992).