17-004262N Giselle Quiroga And Nelson Quiroga, On Behalf Of And As Parents And Natural Guardians Of Paula Quiroga, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, October 27, 2017.

Summary: The evidence established that Paula did not sustain an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GISELLE QUIROGA AND NELSON

QUIROGA, on behalf of and as

parents and natural guardians of

PAULA QUIROGA, a minor,

Petitioners,

vs. Case No. 17 - 4262N

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

Partial Summary Final Ord er (RespondentÓs Motion) filed by

Respondent, Florida Birth - Related Neurological Injury

Compensation Association (NICA), on September 27, 2017. 1 / On

October 4, 2017, the undersigned issued an Order to Show Cause

directing Petitioners and Intervenor to sho w cause in writing, on

or before October 11, 2017, why Respondent's Motion should not be

granted and a summary final order entered finding that

Petitioners' claim is not compensable. Neither Petitioners nor

Intervenor responded to the Order to Show Cause.

STATEMENT OF THE CASE

On July 24, 2017, Petitioners, Gisell Quiroga and Nelson

Quiroga, on behalf of and as parents and natural guardians of

Paula Quiroga (Paula), a minor, filed a Petition for Benefits

Pursuant to Florida Statute Section 776.301 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

Pablo Delgado, M.D., as the physician who provided obstet ric

services for the birth of Paula on July 27, 2012, at Baptist

Hospital of Miami, Inc. (Baptist) , in Miami, Florida.

DOAH served NICA with a copy of the Petition on August 2,

2017. DOAH served a copy of the Petition on Baptist on August 4,

2017, and P ablo Delgado, M.D., on August 7, 2017. On August 10,

2017, Baptist filed a Petition for Leave to Intervene, which was

granted the same date.

RespondentÓs Motion was filed on September 27, 2017. Said

motion requests that an order be entered finding that the claim

was not compensable because Paula did not sustain a "birth -

related neurological injury" as that term is defined in section

766.302(2), Florida Statutes.

FINDINGS OF FACT

1. Paula was born on July 27, 2012, at Baptist in Miami,

Florida.

2. Donald Willis, M.D., an obstetrician specializing in

maternal - fetal medicine, was retained by NICA to review the

medical records of Paula, and her mother, Giselle Quiroga, to

opine whether an injury occurred in the course of labor, delivery

or res uscitation in the immediate postdelivery period at Baptist

due to oxygen deprivation or mechanical injury. Dr. Willis

reviewed the medical records and in a report dated September 29,

2017, Dr. Willis described his findings, in pertinent part, as

follows:

In summary, primary Cesarean section was done

for fetal macrosomia. There was no

identifiable fetal distress prior to

delivery. The baby was not depressed at

birth with Apgar scores of 9/9. No

resuscitation was required at birth. The

newborn hospital course was uncomplicated.

Developmental delay was suspected during

childhood. MRI at about 2 - years of age was

consistent with brain injury. Cerebral palsy

was diagnosed.

There was no obstetrical event that resulted

in loss of oxygen or trauma to the b abyÓs

brain during labor, delivery and the

immediate post delivery period.

3. Attached to RespondentÓs Motion is the affidavit of

Dr. Willis, dated September 18, 2017. In his affidavit,

Dr. Willis affirms his August 29, 2017, report and maintain s that

there was no obstetrical event that resulted in loss of oxygen or

trauma to PaulaÓs brain during labor, delivery or the immediate

post delivery period.

4. A review of the file reve a ls that no contrary evidence

was presented to dispute Dr. Wil lisÓ findings and opinions.

Dr. WillisÓ opinion is credited.

CONCLUSIONS OF LAW

5. DOAH 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 "for the

purpose of providing compensation, irrespective of fault, for

birth - rel ated neurological injury claims relating to births

occurring on or after January 1, 1989. Ñ § 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 "45 days from the date of service

of a co mplete 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.

8. NICA has determined that Petition ers do not have a claim

that is compensable under the Plan and RespondentÓs Motion

requests an order be entered 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 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 "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 post delivery

period in a hospital, which renders the

infant permanently and substantially mentally

and physically impaired.

11. RespondentÓs Motion, which is not refuted, establishes

that Paula did not sustain an injury to the brain caused by

oxygen depriva tion or mechanical injury occurring in the course

of labor, delivery, or resuscitation in the immediate

postdelivery period in a hospital. No evidence has been

presented that Paula otherwise sustained a birth - related

neurological injury. Accordingly, Pau la 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 is dismissed with prejudice.

DONE AND ORDERED this 27 th day of October , 2017 , in

Tallahassee, L eon County, Florida.

S

TODD P. RESAVAGE

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 27 th day of October , 2017 .

ENDNOTE

1/ Notwithstanding the title of the filing, the undersigned

construes RespondentÓs filing as a motion for final summary

order. R espondent seeks an order finding the subject claim not

compensable as a matter of law and denying the petition, with

prejudice.

COPIES FURNISHED:

(via certified mail)

Lincoln J. Connolly, Esquire

Rossman, Baumberger, Reboso

Spier and Connolly, P.A.

Co urthouse Tower, 23rd Floor

44 West Flagler Street

Miami, Florida 33130 - 1808

(eServed)

(Certified Mail Number 7016 0910 0001 7980 1543)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Ch ristopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7016 0910 0001 7980 1550)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail Number 7016 0910 000 1 7980 1567)

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 Number 7016 0910 0001 7980 1574)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7016 0910 0001 7980 1581)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2 727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7016 0910 0001 7980 15 98 )

Pablo Delgado, M.D.

Suite 200

10700 North Kendall Drive

Miami, Florida 33176

(Certified Ma il Number 7016 0910 0001 7980 1680 )

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 Proced ure. Such proceedings are

commenced by filing the original notice of administrative appeal

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 pre scribed 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).