18-000962N Jorge Moreno And Griselda Torres, On Behalf Of And As Parents And Natural Guardians Of Andy Moreno, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, April 10, 2019.

Summary: The child did not sustain a "birth-related neurological injury" as defined in section 766.302(2), Florida Statutes. Therefore, the child is not eligible for benefits under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JORGE MORENO AND GRISELDA

TORRES, on behalf of and as

parents and natural guardians of

ANDY MORENO, a minor,

Petitioners,

and

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Intervenor,

vs. Case No. 18 - 0962N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on an Unopposed Motion for

Su mmary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (ÐNICAÑ), on

March 28 , 2019.

STATEMENT OF THE CASE

On February 9, 2018 , Jorge Moreno and Griselda Torres, on

behalf of and as parents and natural guardians of Andy Moreno

(ÐAndyÑ) , a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et seq. (ÐPetitionÑ) , with the

Division of Administrative Hearings (ÐDOAHÑ) for the determination

of compensability under the Florida Birt h - Related Neurological

Injury Compensation Plan ( the ÐPlanÑ).

The Petition identified Alyssa J. Brown , M.D., as the

physician who provided obstetric services at the birth of Andy on

November 2, 2015 , at Tampa General Hospital (Ð Tampa General Ñ) in

Tampa , Florida.

DOAH served Dr. Brown with a copy of the Petition on

February 28, 2018, and served Tampa General that same date. NICA

was also served with a copy of the Petition on February 28 , 2018.

University of South Florida Board of Trustees , on behalf of

Tampa General, moved to intervene in this matter on April 12 ,

2018, which was granted.

On May 15 , 2018, NICA filed its response to the Petition,

taking the position that PetitionerÓs claim is not compensable

under the Plan. NICA requested that DOAH schedu le a hearing to

determine compensability. After several extensions, the final

hearing was set for March 27, 2019, then rescheduled for May 23,

2019.

On March 28 , 2019, NICA filed an Unopposed Motion for Summary

Final Order, requesting the Administrative Law Judge enter a

summary final order finding that the claim is not compensable

under the NICA statute because Andy did not suffer a Ðbirth -

related neurological injuryÑ as defined in section 766.302(2),

Florida Statutes.

FINDINGS OF FACT

1. Andy was born on November 2, 2015, at Tampa General

located in Tampa, Florida.

2. Based on the available evidence, Alyssa J. Brown , M.D.,

was the delivering physician for Andy Ós birth. Dr. Brown was a

Ðparticipating physicianÑ under the Plan at the time Andy was

born . See § 766.302(7), Fla. Stat.

3. Upon receiving the Petition, NICA retained Donald

Willis, M.D., a board - certified obstetrician/gynecologist

specializing in maternal - fetal medicine, as well as Laufey Y.

Sigurdardottir, M.D., a pediatric neurologist, to review Andy Ós

medical condition. NICA sought to determine whether Andy

suffered a Ðbirth - related neurological injuryÑ as defined in

section 766.302(2). Specifically, NICA requested its medical

experts opine whether Andy experienced an injury to the brain or

spinal cord caused by oxygen deprivation or mechanical injury

occurr ing in the course of labor, delivery, or resuscitation in

the immediate post - delivery period; a nd, if so, whether this

injury rendered Andy permanently and substantially mentally and

p hysically impaired.

4. Dr. Willis reviewed AndyÓs medical records and described

AndyÓs birth as follows :

[V]acuum assisted vaginal delivery at term

resulted in a newborn with normal Apgar

scores and a normal umbilical cord blood gas.

[Andy] did not requi re resuscitation.

5. Dr. Willis then opined:

There was no apparent obstetrical event that

would have resulted in loss of oxygen or

mechanical trauma to the babyÓs brain during

labor, delivery or the immediate post

delivery period.

6 . Dr. Sigurdardott ir also reviewed Andy Ós medical records,

as well as conducted an independent medical exam of Andy on

May 2 , 2018. Dr. Sigurdardottir commented that ÐAndy is found to

have substantial delays in motor and mental abilities. . . .

[T]here is no evidence o f impairment consistent with a neurologic

injury to the brain or spinal cord acquired due to oxygen

deprivation or mechanical injury.Ñ Dr. Sigurdardottir further

opined :

In light of evidence presented , I believe

Andy does fulfill criteria of a substantial

mental and physical impairment at this time ,

but it is likely due to a genetic condition

and not to be from birth related injury . I

do not feel that Andy should be included in

the NICA program.

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

di spute the findings and opinions of Dr. Willis and

Dr. Sigurdardottir . Their opinions are credible and persuasive.

8 . Based on the opinions and conclusions of Dr. Willis and

Dr. Sigurdardottir, NICA determined that PetitionerÓs claim was

not compensable. NICA subsequently filed the Unopposed Motion

for Summary Final Order asserting that Andy has not suffered a

Ðbirth - related neurological injuryÑ as defined by section

766.302(2). Petitioners do not oppose NICAÓs motion.

CONCLUSIONS OF LAW

9 . The Divisio n of Administrative Hearings has jurisdiction

over the parties and the subject matter of this proceeding

pursuant to sections 766.301 through 766.316. The undersigned, as

an Administrative Law Judge, has Ðexclusive jurisdiction to

determine whether a clai m filed under [NICA] is compensable.Ñ

§§ 766.301(1)(d), 766.304, and 766.311(1), Fla. Stat.

10 . The Florida Legislature established the Plan Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claim s.Ñ £ 766.303(1), Fla.

Stat.

1 1 . To seek compensation under the Plan, a legal

representative on behalf of an injured infant files a claim with

DOAH. §§ 766.302(3) and 766.305(1), Fla. Stat. NICA, which

administers the Plan, then has Ð45 days from the d ate 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.Ñ £ 766.305(4), Fla. Stat.

1 2 . If NICA dete rmines 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.

1 3 . In this matter, however, NICA determined that

PetitionerÓs claim is not compensable under the Plan. Therefore,

NICA filed the Unopposed Motion for Summary Final Order,

requesting an order be entered finding that the claim is not

compens able.

1 4 . In reviewing the compensability of a claim, section

766.309(1) directs the Administrative Law Judge to make the

following determinations based upon the available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury;

(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

pa rticipating physician in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital;

and

(c) How much compensation, if any, is

awardable pursuant to s. 766.31.

1 5 . The term Ðbirth - related neurological injuryÑ is defined

in section 766.302(2) as:

[I]njury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation . . . caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitati on in the immediate postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired.

1 6 . Ð The [NICA] Statute is written in the conjunctive and

can only be interpreted to require permanent and sub stantial

impairment that has both physical and mental elements.Ñ Fla.

Birth - Related Neurological Injury Comp. AssÓn v. Fla. Div. of

Admin. Hearings , 686 So. 2d 1349, 1356 (Fla. 1997).

17. In reviewing the injury in this matter, the undisputed

evidence es tablishes that Andy did not sustain a Ðbirth - related

neurological injuryÑ as defined in section 766.302(2). Dr. Willis

concluded that no apparent obstetrical event resulted in oxygen

deprivation or mechanical trauma during labor, delivery , and the

immedia te post - delivery period which caused brain injury to Andy .

Dr. Willis also noted that Andy did not require resuscitation at

birth. Dr. Sigurdardottir opined that , while Andy does suffer

from Ðsubstantial de lays in motor and mental abilities . . .

there i s no evidence of impairment consistent with a neurologic

injury to the brain or spinal cord acquired due to oxygen

deprivation or mechanical injury.Ñ

18. Therefore, based on the available evidence in the

record, the undersigned determines that Andy ha s not suffered a

Ðbirth - related neurological injuryÑ and is not eligible for NICA

benefits.

DISPOSITION

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 1 0th day of April , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

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 10th day of April , 2019 .

COPIES FURNISHED:

(via certified mail)

Jorge Moreno

Griselda Torres

207 Sycamore Lane

Tampa, Flor ida 33610

(Certified No. 7018 2290 0000 1309 8974 )

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7018 2290 0000 1309 8981 )

Iva M. Valtcheva, Esquire

La Cava & Jacobson, P.A.

101 East Kennedy Boulevard , Suite 2500

Tampa, Florida 33602

(eServed)

(Certified No. 7018 2290 0000 1309 8998 )

Brooke M. Gaffney, Esquire

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

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7018 2290 0000 1309 9001 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7018 2290 0000 1309 9018 )

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7018 2290 0000 1309 9025 )

NOTICE OF RIGHT TO JUDIC IAL 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 Procedure. 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 th e 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).