16-005499N Belynda Fernandez And Enrique Diaz, On Behalf Of And As Parents And Natural Guardians Of Bella B. Diaz, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, January 25, 2017.

Summary: There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to child's brain during labor, delivery or the immediate post-delivery period.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BELYNDA FERNANDEZ AND ENRIQUE

DIAZ, on behalf of and as

parents and natural guardians of

BELLA B. DIAZ, a minor,

Petitioners,

vs. Case No. 16 - 5499N

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 Injury Compensation Association (NICA), on

December 13, 2016.

STATEMENT OF THE CASE

On September 14, 2016, Petitioners , Belynda Fernandez and

Enrique Diaz , on behalf of and as parents and natural guardians

of Bella B. Diaz ( Bella ), 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

Neuro logical Injury Compensation Plan (Plan). The Petition named

Guillermo Antonio Lievano , M . D. , as the physician who provided

obstetric services for the birth of Bella on July 31, 2013, at

Baptist Hospital in Miami, Florida .

DOAH served NICA and Guillermo Antonio Lievano, M.D., with a

copy of the Petition on September 23, 2016. The docket reflects

that DOAH received a n undated return receipt from the United

States Postal Service on October 11, 2016, showing that Baptist

Hospital had been served with a copy of the Petit i on.

On September 30, 2016, Baptist H ospital filed a Petition to

Intervene which was granted. A s of the date of this Summary

Final Order of Dismissal, Dr. Lievano has not petitioned to

intervene into this proceeding.

On December 13 , 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 Bella did not sustain

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

section 766.302(2), Flo rida Statutes . O n the same day as the

Motion for Summary Final Order was filed, Interv e nor Baptist

Hospital filed a Motion for Extension of Time to inform as to its

position regarding whether a hearing would be necessary.

IntervenorÓs motion was granted a nd the parties were instructed

to inform the undersigned no later than January 13, 2017, as to

whether a hearing was necessary. Intervenor filed a notice that

that Intervenor does not believe that a hearing is necessary and

does not object to NICAÓs Motio n for Summary Final Order.

Petitioners did not file a response to NICAÓs Motion, nor file a

response to the Order directing the parties to indicate whether

they were seeking a hearing.

FINDINGS OF FACT

1. Bella B. Diaz was born on July 31 , 2 013 , at Baptis t

Hospital located in Miami , Florida.

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

to review the medical records for Bella . In a report dated

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

part as follows:

Cesarean secti on was done for post - dates with

unfavorable cervix and decreased FHR

variability. Birth weight was 3,385 grams.

Amniotic fluid was clear. The newborn was

not depressed. Apgar scores were 9/9.

Pediatric evaluation at delivery stated the

Ðbaby came out vigorously crying.Ñ No

resuscitation was required. The baby was

taken to the normal nursery.

The initial meconium drug screen was positive

for cannabinoids, but repeat testing the

following day was negative. Chest X - ray

suggested an enlarged heart, but ECHO was

essentially normal.

The baby was transferred to the NICU about 3

hours after birth due to clinically evident

Jaundice. Neurologic exam was normal. The

baby did not have any respiratory distress.

ABO blood type incompatibility was diagnosed

as the cause of Jaundice and managed with

phototherapy.

The baby was noted to have poor feeding and

neurologic evaluation initiated. EEG was

done on the day after birth and was abnormal,

consistent with diffuse encephalopathy. The

abnormal EEG findings we re felt to be only

due to immaturity and expected to improve.

Follow - up EEG at 1 month of age was normal,

but EEG at 16 months of age was again

abnormal with findings suggestive of global

cortical dysfunction.

MRI at one month of age was normal. Follow

up MRI at 6 months of age was essentially

normal with Ðdelayed myelination for the age

of the patient.Ñ No structural defects were

seen.

An extensive Genetic evaluation was negative.

Chromosome analysis showed a pericentric

inversion of chromosome #9, w hich is

considered a normal variation. Microarray

was negative.

Evaluation at 19 months of age described a

child that was unable to walk or stand

unassisted and with global developmental

delay. No obvious cause was identified.

In summary, labor was i nduced for post - dates.

There was no change in the cervix after

overnight cervidil induction. Primary

Cesarean section delivery was done the

following morning. The newborn was not

depressed. Apgar scores were 9/9. The baby

was Ðactive and responsiveÑ a t birth. No

resuscitation was required. The baby was

taken to the normal newborn nursery. Shortly

after delivery the baby was transferred to

the NICU for clinically apparent Jaundice.

Poor feeding lead to further evaluation,

including MRI, which was no rmal. Genetic

evaluation was negative.

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery or the immediate post delivery

period.

3. Dr. Willis reaffirmed his opinion in an affidavit dated

December 12, 2016.

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

was presented to dispute Dr. WillisÓ finding that there was no

apparent obstetric event that resulted in oxygen deprivation or

mechanical trauma during lab or, delivery, or the immediate post -

delivery period. Dr. WillisÓ opinion is credited.

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings has jurisdiction

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

§§ 766.301 - 766.316, Fla . Stat.

6 . The Plan was established by the Legislature Ð for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims Ñ relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

7 . 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 adm inisters the Plan, has Ð 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. Ñ § 766.305(4), Fla. Stat.

8 . NICA has determined that Petitioner s do 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 compensable.

9 . 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 satisfaction of t he

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.

10 . The term Ð birth - related neurological injury Ñ is defined

in section 766.302(2) as follows:

Ð Birth - related neurolo gical injury Ñ 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 mecha nical 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.

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

there was no apparent obstetrical event that resulted in loss of

oxygen or mechanical trauma to BellaÓs brain during labor,

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

not eligible for benefits under the Plan.

CONCL USION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Belynda Fernandez

and Enrique Diaz , o n behalf of and as parents and natural

guardians of Bella D. Diaz , a minor, is dismissed with prejudice.

D ONE AND ORDERED this 25th day of January , 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 25th day of January , 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 0910 0001 7981 0071)

Belynda Fernandez

Enrique Diaz

8901 Southwest 110th Avenue

Miami, Flor ida 33176

(Certified Mail No. 7016 0910 0001 7981 0088)

Scott Edward 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. 7016 0910 0001 79 81 0095)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7016 0910 0001 7981 0101)

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 0910 0001 7981 0118)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eS erved)

(Certified Mail No. 7016 0910 0001 7981 0125)

Guillermo Antonio Lievano, M.D.

Suite 115

8720 North Kendall Drive

Miami, Florida 33176

(Certified Mail No. 7016 0910 0001 7981 0132)

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 Rules of Appellate Procedure. Such proceedings are

commenced by filing the origi nal 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, accompanied by filing fees prescribed by law, with the

clerk of the appropriate Distri ct 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).