18-004021N Laura Ann Ontiveros, On Behalf Of And As Parent And Natural Guardian Of Eleanor Elizabeth Ontiveros, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 9, 2019.

Summary: There was not an obstetrical event that resulted in loss of oxygen to the infant's brain or spinal cord during labor, delivery, or the immediate post-delivery period. The infant did not sustain a birth-related neurological injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA ANN ONTIVEROS, on behalf

of and as parent and natural

guardian of ELEANOR ELIZABETH

ONTIVEROS, a minor,

Petitioner,

vs. Case No. 18 - 4021N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came before the undersigned on RespondentÓs

Motion for Summary Final Order (RespondentÓs Motion), filed

January 22, 2019; and Peti tionerÓs Response, filed April 5,

2019.

STATEMENT OF THE CASE

On July 27, 2018, Petitioner filed a Petition for Benefits

Pursuant to Florida Statute Section 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 Gregory Delong, M.D., as the physician who provided

obstetric services at the birth of Eleanor Elizabeth Ontiveros

(Eleanor) on August 28, 2017, at Lower Keys Medical Center in

Key West, Florida.

On August 8, 2018, DOAH mailed a copy of the Petition to

Respondent, Dr. Delong, and Lower Keys Medical Center.

Respondent was served with the Petition on August 9, 2018.

On December 13, 2018, R espondent filed its Response to

Petition for Benefits, suggesting that the subject claim was not

compensable, and requesting a hearing to address such issue.

Thereafter, the final hearing was scheduled for March 7, 2019.

On January 22, 2019, Respondent filed its Motion for

Summary Final Order. Three days later, Respondent filed an

Agreed Motion to Continue Final Hearing, wherein it was

represented that Petitioner had requested of Respondent

additional time to prepare a response to the Motion for Summary

Final Order and the scheduled hearing. Said filing requested an

order cancelling the final hearing and requiring the parties to

provide the undersigned a status report. On January 29, 2019,

the undersigned issued an O rder continuing the final hearing an d

required the parties to submit a written status report on or

before March 29, 2019.

The parties timely filed status reports. Petitioner

averred that she was prepared to reschedule the final hearing.

Respondent requested that the undersigned rule upon RespondentÓs

Motion. On March 29, 2019, the undersigned issued an O rder

providing that Petitioner had the opportunity to file a response

to RespondentÓs Motion within seven days. Petitioner filed a

timely response.

FINDINGS OF FACT

1. Eleanor was bor n on August 28, 2017, at Lower Keys

Medical Center in Key West, Florida. Eleanor was a single

gestation weighing over 2,500 grams at birth.

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

obstetrician specializing in maternal - fetal medicine, to review

t he medical records of Eleanor and her mother, Laura Ann

Ontiveros, and opine as to whether there was an injury to her

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

delivery, or resuscitation in the immediate postdelivery period

due to oxygen d eprivation or mechanical injury. In his report,

dated September 9, 2018, Dr. Willis set forth the following:

The mother was admitted to the hospital at

37 weeks gestational age in labor. A fetal

heart rate (FHR) monitor tracing during

labor was reviewed and showed no fetal

distress. Delivery was by Cesarean section

for arrest of dilation. Birth weight was

2,857 grams. Amniotic fluid was clear.

The baby was not depressed at birth. Apgar

scores were 8/9. No resuscitation was

required. Newborn physi cal exam states

ÐHealthy Term Newborn.Ñ The baby failed the

newborn hearing test in one ear. Newborn

hospital course was otherwise uncomplicated

and the baby was discharged home on DOL 2.

Hearing evaluation after hospital discharge

identified hearing loss in one ear. Records

also indicate the child had Torticollis and

limited mobility. MRI at 7 months of age

identified a small Arachnoid cyst, slightly

increased extra axial fluid and a simple

pineal cyst. There were mention of findings

suggestive of hypoxic ischemic

encephalopathy (HIE).

In summary, pregnancy was essentially

uncomplicated. Cesarean section was done

during labor for Arrest of Dilation. The

baby was not depressed at birth with Apgar

scores of 8/9. No resuscitation was

required. T he baby was discharged home on

DOL 2. MRI at 7 months of age did not

describe findings consistent with HIE.

There was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

trauma during labor, delivery or in the

immediate post - delivery period.

3. RespondentÓs Motion also relies upon Dr. WillisÓs

January 14, 2019, affidavit, wherein he affirms, to a reasonable

degree of medical probability, the above - quoted findings and

opinions from the report.

4. Respondent als o retained Michael S. Duchowny, M.D., a

pediatric neurologist, to review the medical records of Eleanor

and her mother, conduct an Independent Medical Examination (IME)

of Eleanor, and opine as to whether Eleanor suffers from a

permanent and substantial me ntal and physical impairment as a

result of a birth - related neurological injury, as that term is

defined in Section 766.302(2), Florida Statutes. Dr. Duchowny

reviewed the medical records, obtained historical information

from EleanorÓs mother, and perform ed an IME on November 28,

2018.

5. RespondentÓs Motion also relies upon the attached

affidavit from Dr. Duchowny, dated January 14, 2019. In his

affidavit, Dr. Duchowny testifies, as follows:

It is my opinion that:

In summary, EleanorÓs examinati on reveals

neurological findings consistent with a

diagnosis of ataxic hypotonic cerebral palsy

associated with sensorineural and conductive

hearing losses. Eleanor has preserved

social awareness. It is premature to

adequately assess cognitive functionin g

although her speech output is obviously

delayed. She evidences dysmorphism

characterized by epicanthal folds and a

saddle nasal bridge.

A review of the medical records does not

disclose any significant risk factors during

labor or delivery. EleanorÓs Apgar scores

were 8 and 9 at 1 and 5 minutes, and her

post - natal course in the newborn nursery was

unremarkable. MR imaging performed on

April 26, 2018 revealed benign cysts of the

right anterior temporal and pineal regions.

Based on todayÓs evaluatio n and record

review, I believe that EleanorÓs

neurological disabilities were acquired

prior to birth and did not result from

either oxygen deprivation or mechanical

injury in the course of labor or delivery.

6. In his affidavit, Dr. Duchowny testifi es that his

opinions are to a reasonable degree of medical probability. A

review of the file, including PetitionerÓs Response, reveals

that no contrary evidence was presented to dispute the findings

and opinions of Drs. Willis and Duchowny. Their opinion s are

credited. 1/

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 se ek 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 complete claim . . . in which to file a respon se 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. If Respondent determines that the injury alleged is a

claim that is a compen sable 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, Respondent disputes the claims, 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.

11. In its present posture, the ALJ is required to make

the f ollowing 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 sustaine d 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 - relat ed

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. 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 gest ation, 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 permanen tly 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.

13. The undisputed evidence establishes that there was not

an injury to EleanorÓs brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in a hospital. Accordingly, Eleanor 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 RespondentÓs Motion for Summary Final

Order is granted, and PetitionerÓs claim is found and determined

to not be compensable. The Petition is dismissed with

prejudice.

DONE AND ORDERED this 9th day of April , 2019 , 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 9th day of April , 2019 .

ENDNOTE

1/ Indeed, PetitionerÓs Response is not supported by any

evidence or affidavits. PetitionerÓs Response merely provides

as follows: ÐPlease consider this document a statem ent opposing

the RespondentÓs Motion for Summary Final Order and additional

request for trial date.Ñ

COPIES FURNISHED:

(via certified mail)

Laura A. Ontiveros

Apartment 1

3389 Eagle Avenue

Key West, Florida 33040

(eServed)

(Certified Mail No. 7018 00 40 0000 9774 0526)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 0040 0000 9774 0533)

Tana D. S torey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7018 0040 0000 9774 0540)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7018 0040 0000 9774 0557)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7018 0040 0000 9774 0564)

Mar y C. Mayhew , Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7018 0040 0000 9774 0571)

Lower Keys Medical Center

Attention: Risk Management

5900 College Road

Key West, Florida 33040

(Certified Mail No. 7018 0040 0000 9774 0588)

Gregory Delong, M.D.

Suite 104

1111 12th Street

Key West, Florida 33040

(Certified Mail No. 7018 0040 0000 9774 0595)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an ad ministrative 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 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).