17-006444N Evelyn Machado Valdes And Alejandro Pinera, On Behalf Of And Parents And Natural Guardians Of Alexander Pinera, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, September 25, 2018.

Summary: The infant did not sustain a "birth-related neurological injury."

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN MACHADO VALDES AND

ALEJANDRO PINERA, ON BEHALF OF

AND PARENTS AND NATURAL

GUARDIANS OF ALEXANDER PINERA, A

MINOR,

Petitioner s ,

vs. Case No. 17 - 6444N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon RespondentÓs

Motion for Partial Summary Final Order, filed September 11, 2018,

by Resp ondent, Florida Birth - Related Neurological Injury

Compensation Association (NICA). 1/ Petitioner s did not file a

response to the motion.

STATEMENT OF THE CASE

On September 5, 2017, Petitioner s filed a Petition for

Benefits Pursuant to Florida Statute Sect ion 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 Carlos G. Pena, M.D., as the physicia n who

provided obstetric services at the birth of Alexander Pinera

(Alexander) on August 28, 2015, at South Miami Hospital ,

in Miami, Florida.

On November 28, 2017, DOAH mailed a copy of the Petition to

NICA by certified mail. NICA was served with the s ame on or

before December 4, 2017. On November 28, 2017, DOAH mailed

copies of the Petition by certified mail to South Miami Hospital

and Dr. Pena.

On September 11 , 2018, NICA filed its Motion for Partial

Summary Final Order requesting that a partial su mmary final order

be entered finding that the claim is not compensable because

Alexander did not sustain a Ðbirth - related neurological injuryÑ

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

As noted above, Petitioners did not respond to the motion.

FINDINGS OF FACT

1. Alexander was born on August 28, 2015, at South Miami

Hospital. Alexander was a single gestation, weighing over 2,500

grams at birth.

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

specializing in maternal - fetal medicine, to review the medical

records of Alexander and his mother, Petitioner Evelyn Machado

Valdes, and opine as to whether there was an injury to his brain

or spinal cord that occurred in the course of labor, delivery, or

resuscitation in the immediat e post - delivery period due to oxygen

deprivation or mechanical injury. In his report , dated

February 19, 2018, Dr. Willis set forth the following:

In summary, umbilical cord prolapse occurred

during labor. Emergency Cesarean section was

done with deliv ery of a healthy newborn. The

baby was not depressed at birth. Apgar

scores were 9/9. No resuscitation was

required. The baby left the delivery room

stable and well. Episodes of cyanosis

occurred several hours after birth. Cerebral

infarction was dia gnosed by MRI.

The baby suffered a stroke at some time

around the episodes of cyanosis that occurred

several hours after birth. This would be

well after the post - delivery resuscitation

period. The baby was born active and

required no resuscitation at b irth,

indicating there was no oxygen deprivation

during labor, delivery of [sic] the post -

delivery period.

* * *

There was no apparent obstetrical event that

resulted in loss of oxygen or mechanical

trauma to the babyÓs brain or spinal cord

during labo r, delivery or the immediate post

delivery period. The baby did suffer a

stroke during the perinatal period, but this

was not related to oxygen deprivation or

mechanical trauma during labor, delivery or

the immediate post - delivery period.

3. Dr. W illis affirms in his amended affidavit, dated

September 24, 2018, the above - quoted opinions from his report and

further opines that:

[I]n that there was no oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery or resuscitation in the

immediate post - delivery period in this

Hospital, then accordingly, there was no

causal event which would have rendered

Alexander Pinera permanently and

substantially mentally and physically

impaired as a result of the same.

4. NICA also ret ained Michael S. Duchowny, M. D., a

pediatric neurologist, to review the pertinent medical records,

conduct an Independent Medical Examination (IME) of Alexander,

and opine as to whether Alexander suffers from a permanent and

substantial mental and physical impairment as a result of a

birth - related neurological injury. Dr. Duchowny reviewed the

medical records, obtained historical information from AlexanderÓs

mother, Evelyn Machado, and performed an IME on June 13, 2018.

5. In a report authored afte r the IME, Dr. Duchowny

summarized his findings, in pertinent part, as follows:

In SUMMARY, AlexÓs neurological examination

reveals subtle right upper extremity weakness

characterized by left hand preference and

posturing of his right upper extremity whil e

walking. There is no objective weakness and

his fine motor coordination is preserved.

His speech is age - appropriate.

* * *

Although Alex had a major cerebral vascular

accident that affected his left cerebral

hemisphere, he has made a remarkable rec overy

and now evidences only minimal deficits on

his neurological examination. In view of his

stable general physical and neurological

status at birth, it is most likely that the

cerebral vascular accident occurred prior to

the onset of labor.

* * *

Based on the medical record review and

todayÓs evaluation, I am not recommending

Alexander for inclusion in the NICA program.

6. NICAÓs Motion for Partial Summary Final Order also

relies upon the attached affidavit from Dr. Duchowny, dated

Septembe r 4, 2018. In his affidavit, he affirms his findings and

opinions contained in his report to a reasonable degree of

medical probability.

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

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

and Dr. Duchowny. Their opinions are credited.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the parties to and the

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

Fla. Stat.

9. The Plan was established by the Legislature "fo r 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.

10. The injured infant, her or his personal representative,

p arents, 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 comp lete 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.

11. If NICA determines that the injury alleged is a claim

that 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 (ALJ) to whom the claim

has been assigned. §766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claim, as here, the dispute must be

resolved by the assigned ALJ in accordance with the provisions of

chapter 120, Florida Statutes. §§ 766.304, 766.309, and 766.31,

Fla. Stat.

12. In its present posture, the A LJ is required to make the

following threshold 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. An award may be sustained only if the

ALJ concludes that the Ðinfant has sustained a birth - related

neurological injury . . . .Ñ £ 766.31(1), Fla. S tat.

13. 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.

14. The undisputed evidence establishes that there was not

an injury to AlexanderÓs brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in t he course of labor,

delivery, or resuscitation in the immediate post - delivery period

in a hospital. The undisputed evidence further establishes that

Alexander did not sustain a permanent and substantial mental and

physical impairment. Thus, he did not su stain a birth - related

neurological injury as defined in section 766.302(2), 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 NICAÓs Motion for Parti al Summary Final

Order on the issue of a birth - related neurological injury is

granted, and Petitioners Ó claim is found and determined to not be

compensable. The Petition is dismissed with prejudice.

DONE AND ORDERED this 25 th day of September , 2018 , in

T allahassee, 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 25 th day of September , 2018 .

ENDNOTE

1/ Although styled as a Motion for Partial Summary Final Order,

the undersignedÓs determination that PetitionersÓ claim is not

compensable is a F inal O rder subject to appeal under

section 766.311, Florida Statutes.

COPIES FURNISHED:

(via certified mail)

Victor Adam Ruiz, Esquire

Trujillo Vargas Gonzalez &

Hevia, LLP

Third Floor

815 Ponce De Leon Boulevard

Coral Gables, Florida 33134

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0262)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0279 )

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0286 )

Amie Rice, Investigation Manager

Consum er Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9779 0293 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Driv e, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9779 0309 )

Carlos G. Pena, M.D.

Medical Arts Building

8940 North Kendall Drive, Suite 701E

Miami, Florida 33176

(Certified Mail Number 7018 0040 0000 9779 0316 )

S outh Miami Hospital

Attention: Risk Management

6200 Southwest 73 rd Street

Miami, Florida 33143

(Certified Mail Number 7018 0040 0000 9779 0323 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by a ppeal 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 notice of administrative appeal

wit h 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).