17-005788N Soraliz M. Cartagena, On Behalf Of And As Parent And Natural Guardian Of Jaliyah Figueroa, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, September 7, 2018.

Summary: Child did not sustain an injury to the brain. Physical and mental impairments not substantial.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SORALIZ M. CARTAGENA, on behalf

of and as parent and natural

guardian of JALIYAH FIGUEROA, a

minor,

Petitioner,

vs. Case No. 17 - 5788N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Re spondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSA L

This cause came on for consideration upon an Unopposed

Motion for Summary Final Order filed by Respondent, Florida

Birth - Related Neurological Inju ry Compensation Association

(NICA), on September 4, 2018.

STATEMENT OF THE CASE

On October 18, 2017, Petitioner filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with the Division of Administrative H earings (DOA H)

for a determination of compensability under the Florida Birth -

Related Neurological Injury Compensation Plan (Plan). The

Petition named Dr. Maria Martino and Dr. Krysta Fee as the

physicians who provided obstetric services for the birth of

Jaliyah Figue roa (Jaliyah) on March 7, 2017, at Lakeland Regional

Medical Center in Lakeland, Florida. 1 /

On October 24, 2017, DOAH mailed a copy of the Petition to

NICA by certified mail. The certified receipt indicates the sam e

was served on November 6, 2017. On O ctober 24, 2017 , DOAH mailed

copies of the Petition by certified mail to Lakeland Regional

Medical Center; Maria Martino, M.D.; Krysta Fee, ARNP ; and Maria

Martino - Villan ueva, M.D. On November 29, 2017 , Lakeland Regional

Health Systems, Inc.Ós Petition fo r Leave to Intervene was

granted. 2 /

On January 16, 2018, NICA filed its Response to Petition for

Benefits, suggesting that the subject claim was not compensable

and requesting a final hearing to address said issue.

Ultimately, Petitioner retained counsel on or before April 3,

2018, and the parties proceeded with discovery. NICAÓs Motion

was filed on September 4, 2018, requesting that a summary final

order be entered finding that the claim is not compensable

because Jaliyah did not sustain a Ðbirth - relate d neurological

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

Statutes, and dismissing the Petition with prejudice. Said

motion represents that Petitioner does not oppose the instant

motion.

FINDINGS OF FACT

1. Jaliyah was born on Mar ch 7, 2017, at Lakeland Regional

Medical Center.

2. With respect to JaliyahÓs birth, obstetrical services

were delivered by Maria Martino, M.D., a NICA participating

physician, in the course of labor, delivery , or resuscitation in

the immediate postdeli very period.

3. NICA retained Donald Willis, M.D., an obstetrician

specializing in maternal - fetal medicine, to review JaliyahÓs

medical records and opine as to whether there was an injury to her

brain or spinal cord that occurred in the course of l abor,

delivery, or resuscitation in the immediate post - delivery period

due to oxygen deprivation or mechanical injury. In his report and

subsequent affidavit (attached to NICAÓs Motion), Dr. Willis

opines that Ðthere was an obstetrical event that resulted in loss

of oxygen to the babyÓs brain during labor, delivery and

continuing into the immediate post deliver [sic] period. The

oxygen deprivation resulted in brain injury.Ñ

4. NICA also retained Laufey Y. Sigurdardottir, M.D., a

pediatric neurolog ist, to review JaliyahÓs medical records,

conduct an Independent Medical Examination (IME), and opine as to

whether she suffers from a permanent and substantial mental and

physical impairment as a result of a birth - related neurological

injury. Dr. Sigurda rdottir reviewed the available medical

records, obtained a full historical account from Petitioner, and

conducted an IME of Jaliyah on December 13, 2017.

5. Dr. SigurdardottirÓs affidavit, attached to NICAÓs

Motion, provides in pertinent part, as f ollows:

Based upon my education, training and

experience, it is my professional opinion,

within a reasonable degree of medical

probability that although there is evidence of

impairment consistent with a neurologic injury

to the brain or spinal cord acquir ed due to

oxygen deprivation or mechanical injury,

Jaliyah is not found to have substantial

delays in motor and mental abilities. Her

prognosis for full motor and mental recovery

is excellent and her life expectancy is full.

6. A review of the fi le reveals that no contrary evidence

was presented to refute the findings and opinions of Dr. Willis

and Dr . Sigurdardottir. Their unrefuted opinions are credited.

CONCLUSIONS OF LAW

7. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 766.301 - 766.316,

Fla. Stat.

8. 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.

9. 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 7 66.305(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 birth - related neurological

injury." § 766.305(4), Fla. Stat.

10. NICA has determined that Petitioner does not have a

claim that is compensable under the Plan and has filed the

instant U nopposed Motion for Summary Final Order, requesting that

an order be entered finding that the claim is not compensable.

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

must make the following threshold determinations based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurolog ical 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 perm anently 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 physi cian 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.

12 . 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.

13 . The evidence establishes that there was an obstetrical

event that resulted in loss of oxygen t o JaliyahÓs brain during

labor, delivery , and continuing into the immediate postdelivery

period, resulting in an injury to her brain. The evidence

further establishes that obstetrical services were delivered by a

participating physician , Dr. Martino, in t he course of labor,

delivery, or resuscitation in the immediate postdelivery period

in a hospital , Lakeland Regional Health. The unrefuted evidence,

however, establishes that Jaliyah did not sustain a permanent and

substantial mental and physical impairme nt. Thus, she did not

sustain a birth - related neurological injury as defined in

section 766.302(2), Florida Statutes, and, therefore, is not

eligible for benefits under the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law , it is ORDERED that the Petition is dismissed with prejudice.

DONE AND ORDERED this 7th day of September , 2018 , in

Tallahassee, Leon 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 7th day of September , 2018 .

ENDNOTE S

1/ NICAÓs Motion avers that Krysta Fee is not a physician, but

rather, a nurse practitioner.

2 / On September 5, 2018, Intervenor filed a Notice of Withdrawal

of Motion to Intervene, which was granted on the same date.

COPIES FURNISHED:

(via cert ified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2365)

Soraliz Michelle Ca rtagena

6873 Heatherbrook Drive

Lakeland, Florida 33809

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2372 )

Paula J. Lozano, Esquire

Walters Levine & Lozano

Sarasota City Center

1819 Main Street, Suite 1110

Sarasota, Florida 34236

(eServed)

(Cert ified Mail Number 7018 0040 0000 9779 2389 )

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2396 )

Robert Saunders, Esquire

The Pendas Law Firm

625 East Colonial Drive

Orlando, Florida 32803

(eServed)

(Certified Mail Number 7018 0040 0000 9779 2402 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Flori da 32399 - 3275

(Certified Mail Number 7018 0040 0000 9779 2419)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 00 00 9779 2426)

Krysta Fee, ARNP

1729 Lakeland Hills Boulevard

Lakeland, Florida 33805

(Certified Mail Number 7018 0040 0000 9779 2433)

Maria Martino - Villanueva, M.D.

450 East Central Avenue

Winter Haven, Florida 33880

(Certified Mail Number 7018 0040 0000 9779 2440 )

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 Flor ida Rules of Appellate Procedure. 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, a ccompanied 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).