18-001801N Sheila Gonzalez, On Behalf Of And As Parent And Natural Guardian Of Jayden Jacomino, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, September 21, 2018.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEILA GONZALEZ, on behalf of

and as parent and natural

guardian of JAYDEN JACOMINO, a

minor,

Petitioner,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

AND BABIES ; AND MEGAN PIPER

GRAY, M.D.,

Intervenor,

vs. Case No. 18 - 1801N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for con sideration on an Unopposed Motion for

Summary Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association ( Ð NICA Ñ ), on

September 4, 2018.

STATEMENT OF THE CASE

On March 22, 2018, Petitioner, Sheila Gonzalez, on behal f of

and as parent and natural guardian of, Jayden Jacomina ( Ð Jayden Ñ ),

a minor, filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 et seq. ( Ð Petition Ñ ) with the Division of

Administrative Hearings ( Ð DOAH Ñ ) for the determination of

c ompensability under the Florida Birth - Related Neurological Injury

Compensation Plan ( Ð Plan Ñ ).

The Petition named Megan Piper Gray, M.D., as the physician

who provided obstetric services at the birth of Jayden on

February 8, 2015, at Intervenor Orlando H ealth, Inc., d/b/a

Winnie Palmer Hospital for Women and Babies ( Ð Orlando Health

Hospitals Ñ ).

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

April 19, 2018, and upon Orlando Health Hospitals on or about

April 25, 2018. NICA was served with a copy of the Petition on

April 16, 2018.

On June 25, 2018, NICA filed its response to the Petition,

suggesting that the subject claim was not compensable and

requesting that a hearing be scheduled to address such issue. On

July 19, 2018, the undersigned issued an Order directing the

parties to confer and advise whether a final hearing would be

required. On July 26, 2018, NICA filed a response to the Order

indicating that no party requested a final hearing in this matter.

On September 4, 2018, NICA filed an Unop posed Motion for

Summary Final Order, requesting that a summary final order be

entered finding that the claim was not compensable because Jayden

did not suffer a Ð birth - related neurological injury Ñ as defined in

section 766.302(2) , Florida Statutes .

FINDIN GS OF FACT

1. Jayden was born on February 8, 2015, at Orlando Health

Hospitals located in Orlando, Florida.

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

obstetrician/gynecologist, specializing in maternal - fetal

medicine, as well as pediatric neurologist, Lau fey Y.

Sigurdardottir, M.D., to review Jayden Ó s medical records. NICA

sought to obtain an opinion whether an injury to Jayden Ó s brain

or spinal cord at birth caused by oxygen deprivation or

mechanical injury occurred in the course of labor, delivery, or

r esuscitation in the immediate post - delivery period, and whether

that injury rendered Jayden permanently and substantially

mentally and physically impaired.

3. Dr. Willis reviewed Jayden Ó s medical records and opined,

within a reasonable degree of medical p robability, that:

[T] here was no apparent obstetrical event

that resulted in oxygen deprivation or

mechanical trauma during labor, delivery and

the immediate post - delivery period.

4. Dr. Sigurdardottir also reviewed Jayden Ó s medical

records, as well as e xamined Jayden on May 29, 2018.

Dr. Sigurdardottir found that Jayden exhibits a neurodevelopment

disorder with a severe language delay, as well as autistic

features. However, Dr. Sigurdardottir also opined that, within a

reasonable degree of medical pro bability:

Jayden is not found to have substantial

delays in motor abilities.

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

dispute s the findings and opinions of Dr. Willis and

Dr. Sigurdardottir . Their opinions are credible and persuasive.

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

Dr. Sigurdardottir, NICA determined that Petitioner Ó s claim was

not compensable. NICA subsequently filed the Motion for Summary

Final Order asserting that Jayden has not suffered a Ð birth -

related neurological injury Ñ as defined by section 766.302(2).

Neither Petitioner nor Intervenor oppose s NICA Ó s motion.

CONCLUSIONS OF LAW

7. The undersigned, as an Administrative Law Judge, has

exclusive jurisdiction over the subject matter of this proceeding.

§ 766.304, Fla. Stat.

8. The Florida Legislature established the Plan Ð for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims Ñ 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 766.305(1), Fla. Stat. NICA, which

administers the Plan, then has Ð 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 neurolog ical

injury. Ñ § 766.305(4), Fla. Stat.

10. If NICA determines 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.

11. In this matter, however, NICA has determined that

Petitioner Ó s claim is not compensable under the Plan. Therefore,

NICA filed a Motion for Summary Final Order, requesting an order

be entered finding that the claim is not compensable.

12. In ruling on NICA Ó s motion, section 766.309(1) provides

that the Administrative Law Judge must make the following

determination based upon the available evidence:

(a) Whether the injury claimed i s 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.

766.302 (2).

13. The term Ð birth - related neurological injury Ñ is defined

in section 766.302(2) as follows:

Ð Birth - related neurological injury Ñ 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 lab or, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the infant

permanently and substantially mentally and

physically impaired. This definition shall

apply to live births only and shall not

include disability or death caused by genetic

or congenital abnormality.

14. The undisputed evidence establishes that there was no

obstetrical event that caused the loss of oxygen to Jayden Ó s brain

or spinal cord during labor, delivery, or the immediate post -

delivery period. The undisputed evidence further establishes that

Jayden did not suffer a substantial mental impairment. 1/ Thus,

Jayden did not sustain a Ð birth - related neurological injury Ñ as

defined in section 766.302(2). Accordingly, Petitioner is not

eligible for b enefits under the Plan.

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 21st day of September, 2018 , 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

Fi led with the Clerk of the

Division of Administrative Hearings

this 21st day of September , 2018 .

ENDNOTE

1/ Ð The [NICA] Statute is written in the conjunctive and can only

be interpreted to require permanent and substantial impairment

that has both physi cal and mental elements . Ñ (emphasis added) .

Fla. Birth - Related Neurological Injury Comp. Ass Ó n v. Fla. Div.

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

COPIES FURNISHED:

(via certified mail)

Ian Depagnier, Esquire

Paul & Perkins, P.A.

Suite 202

711 North Orlando Avenue

Maitland, Florida 32751

(eServed)

(Certified No. 7016 0910 0001 7987 8262 )

Jason A. Paul, Esquire

Paul & Perkins, P.A.

Suite 202

711 North Orlando Avenue

Maitland, Florida 32751

(Certified No. 701 1 1570 0003 4461 5348 )

Kenne y Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7011 1570 0003 4461 53 55 )

Andrea L. Diederich, Esquire

Marshall, Dennehey, Warner,

Coleman & Goggin

Suite 550

315 East Robinson Street

Orlando, Florida 32801

(eServed)

(Certified No. 701 1 1570 0003 4461 5362 )

Brooke M. Gaffney, Esquire

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

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florid a 32118

(eServed)

(Certified No. 701 1 1570 0003 4461 5379 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 701 1 1570 000 3 4461 5386 )

Justin Sen ior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 701 1 1570 000 3 4461 5393 )

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 Procedure. Such proceedings are

commenced by filing the original n otice of a dministrative a ppeal

with the a gency c lerk of the Div ision 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 - Re lated Neurological

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

1992).