16-006895N Jeffrey Antunes And Kesia Antunes, Individually And As Parents Of Melina Antunes, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, March 22, 2017.

Summary: Child does not have a substantial mental or physical impairment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEFFREY ANTUNES AND KESIA

ANTUNES, individually and as

parents of MELINA ANTUNES, a

minor,

Petitioners,

vs. Case No. 16 - 6895N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent ,

and

ADVENTIST HEALTH SYSTEM/SUNBELT,

INC., d/b/a FLORIDA HOSPITAL

ALTAMONTE,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon an Unopposed

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on March 16, 2017.

STATEMENT OF THE CASE

On November 16, 2016, Petitioners, Jeffrey Antunes and Kesia

Antunes, individually and as pare nts of Melina Antunes (Melina),

a minor, filed a Petition for Determination of Compensability

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 Pedro Cruz - Torres, M.D., as the physician

who provided obstetric services at the birth of Melina on

August 27, 2015, at Florida Hospital located in Orlando, Florida.

DOAH served NICA and Pedro Cruz - Torres, M.D., with a copy of

the Petition on November 28, 2016. On November 23, 2016,

Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital

Altamonte, filed a Petition to Intervene, which was granted.

As of the da te of this Summary Final Order of Dismissal,

Pedro Cruz - Torres, M.D., has not petitioned to intervene into

this proceeding.

On March 1, 2017, NICA filed a Response to Petition for

Benefits, asserting that Melina did not sustain a "birth - related

neurologica l injury" as that term is defined in section

766.302(2), Florida Statutes, and requested that a hearing be

scheduled to determine compensability.

On March 16, 2017, the parties filed a Status Report stating

that the parties were in agreement that a fin al hearing was not

necessary. On the same day, Respondent filed an Unopposed Motion

for Summary Final Order.

FINDINGS OF FACT

1. Melina Antunes was born on August 27, 2015, at Florida

Hospital, located in Orlando, Florida. Melina weighed in excess

of 2,500 grams at birth.

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

to review the medical records for Melina. In a medical report

dated December 12, 2016, Dr. Willis summarized his findings and

opined in pertinent part as follows:

In summ ary, induction of labor was

complicated by a spontaneous uterine rupture.

The baby and placenta were expelled into the

maternal abdomen. The baby was depressed at

birth with low Apgar scores and a cord blood

gas consistent with acidosis (pH 6.65). MRI

w as consistent with HIE.

There was an apparent obstetrical event

(uterine rupture) that resulted in loss of

oxygen to the babyÓs brain during labor,

delivery, and continuing into the immediate

post delivery period. The oxygen deprivation

resulted in brai n injury.

3. NICA retained Laufey Y. Sigurdardottir, M.D.

(Dr. Sigurdardottir), a pediatric neurologist, to examine Melina

and to review her medical records. Dr. Sigurdardottir examined

Melina on February 15, 2017. In a medical report dated

February 1 5, 2017, Dr. Sigurdardottir summarized her examination

of Melina and opined in pertinent part as follows:

Summary: Here we have a 17 - month - old born

after a sudden uterine rupture during active

labor. The patient had neurologic depression

at birth, signif icant acidosis with a pH of

6.6 and required active cooling as well as

supportive medication for seizures in the

neonatal period. She did have well

documented injury on MRI but has made a

remarkable recovery. Neurologic exam today,

has mild abnormalities , but no standardized

developmental testing is available for our

review.

Result as to question 1: Melina is not found

to have substantial physical or mental

impairment at this time.

Results as to question 2: In review of

available documents, Melina do es have the

clinical picture of an acute birth related

hypoxic injury with both the clinical

features of hypoxic encephalopathy and

electrographic and MRI evidence to suggest

hypoxic injury.

Result as to question 3: The prognosis for

full motor and menta l recovery currently is

excellent and her life expectancy is full.

In light of her normal cognitive abilities

and near normal neurologic exam, I do not

feel that Melina should be included in the

NICA program. If needed, I will be happy to

answer additi onal questions or review further

documentation of her developmental status.

4. 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 an apparent obstetrical

e vent that resulted in loss of oxygen to the baby's brain during

labor, delivery and the post - delivery period which resulted in

brain injury. Dr. WillisÓ opinion is credited. There are no

expert opinions filed that are contrary to Dr. SigurdardottirÓs

opi nion that Melina does not have a substantial physical or

mental impairment. Dr. SigurdardottirÓs opinion is credited.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proc eedings.

§§ 766.301 - 766.316, Fla. Stat.

6. 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, 1 989. § 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 766.30 5(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 birt h - related neurological

injury." § 766.305(4), Fla. Stat.

8. 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 a dministrative 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.

9. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the in jury 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 t hat 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).

(b) Whether obstetrical services were

delivered by a participating physician in the

course 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 postdelivery 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 injur y and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

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

in section 766.302(2) as follows:

"Birth - related neurological injury" means

injur y 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.

11. To be compensable under the NICA Plan, there must have

been an obstetrical event which resulted in loss of oxygen to the

babyÓs brain during labor, delivery, or resuscitation in the

immediate post - delivery period resulting in a permanent and

substantial mental impairment and a permanent and substantial

physical im pairment, inasmuch as both are required to establish

compensability. Fla. Birth - Related Neurological Injury Comp.

AssÓn v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

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

Melina does not have a permanent and substantial mental or

physical impairment. Therefore, Melina is not eligible for

benefits under the Plan.

CONCLUSION

Based on the Findings of Fact and the Conclusions of Law, it

is ORDERED that :

T he Petition filed by Jeffrey Antunes and Kesia Antunes,

individually and as parents of Melina Antunes, is dismissed with

prejudice.

DONE AND ORDERED this 22nd day of March , 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 22nd day of March , 2017 .

COPIES FURNISHED:

(via certified mail)

Ronald S. Gilbert, Esquire

Colling Gilbert Wright & Carter, LLC

Suite 830

801 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified Mail No. 7015 0640 0003 7650 1920)

Kenney Shipley, Exec utive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7650 1937)

Travase Lloyd Erickson, Esquire

Saalfield, Shad, Stokes , Inclan,

Stoudemire and Stone, P.A.

Suite 400

245 Riverside Avenue

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7015 0640 0003 7650 1944)

Brooke M. Gaffney, Esquire

Smith Bigman Brock

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail No. 7015 0640 0003 7650 1951)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7015 0640 0003 7650 1968)

Justin Se nior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7015 0640 0003 7650 1975)

Pedro Cruz - Torres, M.D.

Suite 318

661 East Altamonte Drive

Alt amonte, Florida 32701

(Certified Mail No. 7015 0640 0003 7650 1982)

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 o f 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 Neurological

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

1992).