16-005654N Ada Fernandez And Anthony Portuondo, On Behalf Of And As Parents And Natural Guardians Of Aydrian Portuondo, 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

ADA FERNANDEZ AND ANTHONY

PORTUONDO, on behalf of and as

parents and natural guardians of

AYDRIAN PORTUONDO, a minor,

Petitioners,

vs. Case No. 16 - 5654N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

AS SOCIATION,

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 I njury Compensation Association (NICA), on

December 13, 2016.

STATEMENT OF THE CASE

On September 21, 2016, Petitioners, Ada Fernandez and

Anthony Portuondo, on behalf of and as parents and natural

guardians of Aydrian Portuondo (Aydrian), a minor, filed a

P etition 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 Julio E. Arronte, M.D., as the physician who

provided obstetric services for the birth of Aydrian on

October 16, 2014, at South Miami Hospital in Coral Gables,

Florida.

DOAH served NICA with a copy of the Petition on

September 30, 2016. DOAH served South Miami Hospital and

Julio E. Arronte, M.D., with a copy of the Petition on October 3,

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

neither Dr. Arronte nor South Miami Hospital has petitioned to

intervene into this procee ding.

On December 13, 2016, NICA filed a Motion for Summary Final

Order, requesting that a summary final order be entered finding

that the claim was not compensable because Aydrian did not

sustain a Ðbirth - related neurological injuryÑ as that term is

defi ned in section 766.302(2), Florida Statutes. Petitioners did

not file a response to the Motion.

On December 29, 2016, an Order to Show Cause was entered

which allowed Petitioners until January 13, 2017, to inform the

undersigned in writing as to why the m otion should not be granted

and a summary final order be entered finding PetitionersÓ claim

is not compensable. To date, no response has been filed by

Petitioners to the Motion or to the Order to Show Cause.

FINDINGS OF FACT

1. Aydrian Portuondo was born on October 16, 2014, at South

Miami Hospital in Coral Gables, Florida.

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

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

November 7, 2016, Dr. Willis described his findings in pertinent

part as follows:

Delivery was by spontaneous vaginal birth.

Birth weight was 3,000 grams. Apgar scores

were 4/8. The newborn was pale and Jaundice.

After intubation for suctioning meconium, bag

and mask ventilation was required for poor

respi ratory effort. Initial oxygen

saturation was low at 70% and the baby was

re - intubated and taken to the NICU.

Generalized petechiae were noted on NICU

evaluation. The liver and spleen were felt

to be enlarged. Platelet count was only

14,000. TORCH infe ction was suspected.

Urine culture for CMV was positive and CMV

IgM antibody was also positive.

Liver function studies were elevated. The

newborn hearing test was failed.

MRI on DOL 3 had findings consistent with

congenital CMV infection with dilated lateral

ventricles and multiple periventricular

calcifications. Follow - up MRIÓs continued to

show similar findings with diffuse volume

loss and findings consistent with congenital

CMV.

The baby was followed on an out - patient basis

by Infectious Disease f or congenital CMV

infection.

In summary, the pregnancy was complicated by

fetal congenital CMV infection. Physical

exam of the baby, laboratory testing and head

imaging studies were consistent with this

diagnosis.

There was no apparent obstetrical eve nt that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain during labor,

delivery or the immediate post delivery

period. The childÓs brain injury would be

consistent with congenital CMV infection and

not a birth related hypoxic event.

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

November 17, 2016.

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

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

apparent obstetrical event that resulted in loss of oxy gen or

mechanical trauma to the babyÓs brain during labor, 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 subjec t 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 administers 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 whethe r the injury is a birth - related neurological

injury. Ñ § 766.305(4), Fla. Stat.

8. NICA has determined that Petitioners 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 en tered finding

that the claim is not compensable.

9. In ruling on the motion, the administrative law judge

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 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. 766.303(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 neurological 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 2,0 00 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 physica lly 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 AydrianÓs brain during labor,

delivery or the immediate post - delivery period. Thus, A ydrian 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 Ada Fernandez and

Anthony Portuondo, on behalf of and as parents and natural

guardia ns of Aydrian Portuondo, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 25th day of January , 2017 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrativ e 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 F URNISHED:

(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 7980 4353)

Ada Fernandez

Anthony Portuondo

21771 Northwest Second Court

Pembroke Pines, Florida 33029

(Certified Mail No. 7016 0910 0001 7980 4360)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Ce rtified Mail No. 7016 0901 0001 7980 4377)

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 7980 0033)

Justin Senior , Secreta ry

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7980 0040)

South Miami Hospital

Attention: Risk Management

6200 Southwest 73rd Street

South Miami, Florida 33143

(Certified Mail No. 7016 0910 0001 7980 0057)

Julio E. Arronte, M.D.

Suite 304

8200 Southwest 117th Avenue

Miami, Florida 33183

(Certified Mail No. 7016 0910 0001 7980 0064)

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 original 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 a ppropriate District 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).