17-006494N Lorena Arellano Benitez And Jorge Posada-Sanchez, On Behalf Of And As Parents And Natural Guardians Of Daisy Posada, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 24, 2018.

Summary: The infant did not sustain a birth-related neurological injury and is therefore not eligible for benefits under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LORENA ARELLANO BENITEZ AND

JORGE POSADA - SANCHEZ, on behalf

of and as parents and natural

guardians of DAISY POSADA, a

minor,

Petitioners,

vs. Case No. 17 - 6494N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENS ATION

ASSOCIATION,

Respondent,

and

FLORIDA HEALTH SCIENCES CENTER,

INC. , d/b/a TAMPA GENERAL

HOSPITAL , AND UNIVERSITY OF

SOUTH FLORIDA BOARD OF TRUSTEES,

Intervenors.

_______________________________/

SUMMARY FINA L ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), on April 9,

2018.

STATEMENT OF THE CASE

On November 27, 2 017, Petitioners filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with the Division of Administrative Hearings (DOAH)

for the determination of compensability under the Florida Birth -

Related Neurological Injury Co mpensation Plan (Plan). The

Petition named Judette Louis, M.D., as the physician who provided

obstetric services at the birth of Daisy Posada on December 1,

2014, at Tampa General Hospital in Tampa, Florida.

DOAH served Tampa General Hospital with a cop y of the

Petition on December 8, 2017. NICA was served with a copy of the

Petition on December 15, 2017. DOAH sent a copy of the Petition

to Dr. Louis via certified mail on December 6, 2017.

On December 21, 2017, Florida Health Sciences Center, Inc. ,

d /b/a Tampa General HospitalÓs Petition for Leave to Intervene

was granted. On January 10, 2018, University of South Florida

Board of TrusteeÓs Motion to Intervene was granted.

On February 12, 2018, NICA filed its Response to Petition

for Benefits, sugges ting that the subject claim was not

compensable and requesting that a hearing be scheduled to address

such issue. On April 2, 2018, the undersigned issued an O rder

directing the parties to confer and advi se whether a final

hearing would be required. On A pril 9, 2018, Respondent filed a

status report wherein it was represented that a telephonic

conference had been conducted by counsel for all parties. Said

filing further represented that none of the parties were

requesting a final hearing and that neither Petitioners nor

Intervenors take a position on NICAÓs anticipated Motion for

Summary Final Order. On the same date, Respondent filed a Motion

for Summary Final Order, requesting that a summary final order be

entered finding that the claim was not compens able because Daisy

Posada did not sustain a Ðbirth - related neurological injuryÑ as

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

Neither Petitioners nor Intervenors filed a response.

FINDINGS OF FACT

1. Daisy Posada was born on December 1, 2014, at Tampa

General Hospital in Tampa, Florida.

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

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

medical records of Daisy Posada and to opine whether an injury

occurred in the cour se of labor, delivery or resuscitation in the

immediate post - delivery period at Tampa General due to oxygen

deprivation or mechanical injury. In a report dated December 29,

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

follows:

In summary, delivery was complicated by a

significant shoulder dystocia, requiring

multiple maneuvers to complete the delivery.

The newborn was depressed with Apgar of 0/0.

Full resuscitation was required. The newborn

hospital course was complicated by multi -

system organ failures. The initial ABG,

which was done after resuscitation, had a pH

of only 692. EEG was abnormal, but MRI was

reported as normal.

* * *

There was an obstetrical event (shoulder

dystocia) that resulted in loss of oxygen to

the babyÓs brain during delivery and

continuing into the immediate post delivery

period. The oxygen deprivation resulted in

at least some degree of brain injury

initially, based on the abnormal EEG.

However, the brain MRI was normal. There was

no mechanical trauma or i njury to the spinal

cord.

3. Attached to RespondentÓs Motion for Summary Final Order

is the affidavit of Dr. Willis, dated April 2, 2018. In his

affidavit, Dr. Willis affirms the findings in his above - quoted

report and maintains that his opinions are within a reasonable

degree of medical probability.

4. NICA also retained Michael S. Duchowny, M.D., a

pediatric neurologist, to review Daisy PosadaÓs medical records

and to conduct an Independent Medical Evaluation of her and to

opine as to whet her she 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 Ms. Arellano Benitez, and

performed an eval uation on January 31, 2018.

5. In a report authored after the neurological evaluation,

Dr. Duchowny summarized his findings, in pertinent part, as

follows:

In SUMMMARY, DaisyÓs neurological examination

today reveals no specific findings apart from

very slight decreased supination of the left

hand. She does not otherwise display left

upper extremity weakness and has full range

of motion. The examination reveals no

functional compromise of the left upper

extremity, and the remainder of the

neurologi cal examination is unremarkable.

* * *

Despite a complicated perinatal course, Daisy

has developed well - therapeutic hyperthermia

may have contributed to her favorable outcome

responsible [sic]. As there is no evidence

of a substantial mental or motor impairment,

I do not believe that Daisy should be

considered for inclusion within the NICA

program.

6. RespondentÓs Motion for Summary Final Order also relies

upon the attached affidavit from Dr. Duchowny, dated March 27,

2018. In his affidavit, h e affirms the findings contained in his

report and opines, based upon his education, training and

experience, within a reasonable degree of medical probability,

that Daisy Posada has not suffered a substantial mental or

physical impairment.

7. A re view 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 "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after Ja nuary 1, 1989. § 766.303(1), Fla. Stat.

10. 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 76 6.305(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.

11. NICA has determined that Petitioners do not have a

claim that is compensable under the Plan and has filed a Motion

for Summary Final Order, requesting that an order be entered

finding tha t the claim is not compensable.

12. 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

mentall y 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.

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 birt h 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 evidence establishes that there was an obstetrical

event that resulted in loss of oxygen to Daisy PosadaÓs brain

during labor, delivery, or the immediate post - delivery period.

The evidence further establishes, however, that Daisy Posada did

not s ustain a permanent and substantial mental impairment. Thus,

Daisy Posada 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

Base d upon the foregoing Findings of Fact and Conclusions of

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

DONE AND ORDERED this 24th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

TODD P. RES AVAGE

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 Administra tive Hearings

this 24th day of April , 2018 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServe d)

(Certified Mail Number 7018 0040 0000 9772 4687 )

Joseph K. Lopez, Jr., Esquire

The Palmer Law Firm, P.A.

17543 Darby Lane

Lutz, Florida 33558

(Certified Mail Number 7018 0040 0000 9772 4694 )

Paula J. Lozano, Esquire

Walters Levine & Lozano

Sarasota C ity Center

1819 Main Street, Suite 1110

Sarasota, Florida 34236

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4700 )

Iva M. Valtcheva, Esquire

La Cava & Jacobson, P.A.

Suite 1250

501 East Kennedy Boulevard

Tampa, Florida 33602

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4717 )

Brooke M. Gaffney, Esquire

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

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

(eServed)

(Certified Mail Number 7018 0040 0000 9772 4724 )

Amie Rice, Investigation Man ager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9772 4731 )

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 0000 9772 4748 )

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 Appea l 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

with the a gency c lerk of the Division o f 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 N eurological

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

1992).