17-001338N Marion Haley Wilson And Leocadio Santiago Martinez, Individually And As Parents Of Rosabella Grace Santiago Wilson, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 2, 2017.

Summary: The child at issue was stillborn, and therefore the claim does not meet the statutory criteria, as a matter of law, for compensation under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION HALEY WILSON and LEOCADIO

SANTIAGO MARTINEZ, individually

and as parents of ROSABELLA

GRACE SANTIAGO WILSON, deceased,

Petitioners,

vs. Case No. 17 - 1338N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENS ATION

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

Neurol ogical Injury Compensation Association (NICA), on May 3,

2017.

STATEMENT OF THE CASE

On February 24, 2016, Petitioners, Marion Haley Wilson and

Leocadio Santiago Martinez, individually and as parents of

Rosabella Grace Santiago Wilson (Rosabella), deceased , filed a

Petition for Determination of Compensability of Injuries

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

Neur ological Injury Compensation Plan (Plan). The Petition

named Ricky Phillip Leff, M.D., as the physician providing

obstetrical services at the delivery of Rosabella on April 29,

2016, at Jackson Hospital (Jackson) in Marianna, Florida.

Rosabella is deceas ed.

DOAH served NICA with a copy of the Petition on March 3,

2017. Ricky Phillip Leff, M.D., and Jackson were served with a

copy of the Petition on March 7, 2017.

On April 6, 2017, Respondent filed its Response to Petition

for Benefits, suggesting tha t the subject claim is not

compensable, and requesting that a hearing be scheduled to

address such issue.

On April 10, 2017, the undersigned entered an Order

instructing the parties to confer and advise the undersigned in

writing as to the need for a heari ng, if any, and if a hearing

is needed, stating when they will be prepared to proceed to

hearing, the issue(s) still in dispute, their estimate of the

time required for hearing, and their choice of venue.

On April 24, 2017, Respondent filed a Response to O rder

entered on April 10, 2017, stating that both parties agreed that

a hearing would not be necessary and that this claim may be

resolved by a motion for summary final order. On May 3, 2017,

NICA filed a Motion for Summary Final Order, asserting that

Ros abella did not sustain a "birth - related neurological injury"

as that term is defined in section 766.302(2), Florida Statutes.

On that same date, Respondent filed several documents in support

of its motion, including the Affidavit of Donald C.

Willis, M.D. , and the autopsy report for Rosabella. The motion

was served by email to Petitioners on May 3, 2017. As of the

close of the applicable response period, Petitioners did not

file a response to the motion. Accordingly, on May 16, 2017,

the undersigned ente red an Order to Show Cause, giving

Petitioners 10 days in which to show cause as to why the motion

should not be granted. On May 26, 2017 , Petitioners filed a

response to the Order to Show Cause, stating that ÐPetitioners

have no objection to the Court gr anting the RespondentÓs Motion

for Summary Final Judgment.Ñ

FINDINGS OF FACT

1 . On February 24, 2017, Petitioners filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301, et seq .

2 . The child, Rosabella Wilson, was stillborn on April 29 ,

2016, at Gulf Coast Medical Center after the mother was

transferred there from Jackson in Marianna, Florida. The

circumstances of RosabellaÓs labor and delivery are reflected in

the medical records submitted by Petitioners along with the

Petition.

3 . I n order for a claim to be compensable under the Plan,

the requisites set forth in s ection 766.309 must be met.

4 . NICA retained Donald C. Willis, M.D. (Dr. Willis) , as

its medical expert specializing in maternal - fetal medicine.

Upon examination of the me dical records, Dr. Willis opined, in

pertinent part:

Autopsy stated this was a stillbirth.

Neuropathologic diagnosis was Hypoxic

Ischemic Encephalopathy (HIE). No birth

defects were noted.

* * *

In summary, the mother was a poorly

controlled Diabetic, admitted at 38 weeks

gestational age for labor induction. An

abnormal FHR tracing developed during labor

and resulted in fetal demise.

There was an obstetrical event that resulted

in loss of oxygen to the baby's brain during

labor which resulted in brain injury as

diagnosed by Autopsy. Severity of the brain

injury could not be determined. This was

apparently not a live birth.

5 . Further, in the Petition, Petitioners indicate that the

child is deceased and that a birth certificate was never issued.

Se e Petition, paras . 12 and 13. The autopsy report reviewed by

Dr. Willis was included in the medical records provided by

Petitioners with the Petition and indicates that the child was

stillborn. Thus, the face of the Petition, the autopsy report ,

and Dr. Willis' affidavit establish that the child was stillborn

and was not a live birth.

CONCLUSIONS OF LAW

6 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 766.301 - 766.316, Fla. Stat.

7 . 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.

8 . 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 admin isters 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.

9 . 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, Flor ida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

10 . In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related ne urological 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 rendere d 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

resuscitat ion 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 injury and that

obstetrical services we re delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

11. The term "birth - related neurological injury" is

defined in section 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.

12 . The evidence, which is not refuted by any contrary

expert opinions, established that Rosabell a was stillborn and

was not a live birth.

13 . Pursuant to s ection 766.302(2), the definition of

"birth - related neurological injury" applies to live births only.

See also Univ . of Miami v. Klein , 603 So. 2d 651, 652 (Fla. 3d

DCA 1992) ("Under the first c lause of the above sentence it is

clear that the statute does not apply unless the infant is born

alive."). Thus, the instant claim does not meet the statutory

criteria, as a matter of law, for compensation under the NICA

Plan.

14 . Therefore, Rosabella i s not eligible for benefits

under the Plan. §§ 766.302(2) and 766.309(1), Fla. Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Petition filed by Petitioners,

Marion Haley Wilson and Leocadio Sa ntiago Martinez, individually

and as parents of Rosabella Grace Santiago Wilson, deceased, is

dismissed with prejudice.

DONE AND ORDERED this 2nd day of June , 2017 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

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 2nd day of June , 2017 .

COPIES FURNISHED:

(via certified mail)

Grant A. Kuvin, Esquire

Morgan & Morgan

Suite 1100

76 South Laura Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7005 3110 0002 0289 9632)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 2710 0000 4543 0378)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7016 2710 0000 4543 0385)

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 2710 0000 4543 0392)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 2710 0000 4543 0408)

Ricky Phillip Leef, M.D.

4298 5th Avenue

Marianna, Florida 32446

(Certified Mail No. 7016 2710 0000 4543 0415)

Jackson Hospital

Attention: Risk Management

4250 Hospital Drive

Marianna, Florida 32446

(Certified Mail No. 7016 2710 0000 4543 0422)

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 Pro cedure. 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 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).