18-004233N Lila Natour And Riyad Ahmad Parents And Natural Guardians Of Ziad Ahmad, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, May 13, 2019.

Summary: Petitioners are not entitled to benefits because infant did not meet weight threshold.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILA NATOUR and RIYAD AHMAD ,

parents and natural guardians of

ZIAD AHMAD, a minor,

Petitioners,

vs. Case No. 18 - 4233N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

RAMON U. FERRA, M.D. ; AND MOUNT

SINAI MEDICAL CENTER OF FLORIDA,

INC., d/b/a MOUNT SINAI MEDICAL

CENTER,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This came before the undersigned on Re spondentÓs Motion for

Summary Final Order, filed March 1, 2019. In its Motion, NICA

asserts that in order for a claim to be compensable under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan), the statutory prerequisites of s ection 76 6.309, Florida

Statutes, must be met, including:

(1) The administrative law judge shall make

the following determinations based upon all

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury . . . .

(b) Whether obstetrical services were

delivered by a participating p hysician 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 participating physician in

the course of labor, delivery, or

resuscitatio n in the immediate postdelivery

period in a hospital.

* * *

(2) If the administrative law judge

determines that the injury alleged is not a

birth - related neurological injury or that

obstetrical services were not delivered by a

participating physician at the birth, she or

he shall enter an order . . . . (e mphasis

add ed) .

The term Ðbirth - related neurological injuryÑ is defined in

section 766.302(2) as:

(2) ÐBirth - related neurological injuryÑ

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 cas e 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. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality. (e mphasis added) .

According to the pertinent medical records attached to

NICAÓs motion, the minor childÓs weight at birth was

2 ,149 grams. As such, this claim does not meet the statutory

requirements of the NICA Plan, and therefore is not a

compensable claim, according to NICAÓs motion.

N either Petitioners nor Intervenors filed a response to

NICAÓs motion within the allowable response period. However,

due to the dispositive nature of the motion, on March 29, 2019 ,

the undersigned entered an Order to Show Cause, affording the

parties an ad ditional opportunity to file a written response,

should they so choose. No party timely filed a response to the

Order to Show Cause.

FINDINGS OF FACT

1. On September 26, 2014, at 11:43 a.m., Lila Natour gave

birth to a baby boy named Ziad Ahmad at Mount Sinai Medical

Center.

2 . A certified copy of ZiadÓs medical records, including

the NICU Discharge Summary, was attached as Exhibit A to the

Motion for Final Summary Order.

3 . The medical records obtained from Mount Sinai Medical

Center lists Z iadÓs weight at birth as 2,149 grams.

4 . The only evidence of record are the limited medical

records, which identify ZiadÓs bi rth weight as four pounds,

11.8 ounces, or 2 , 149 grams. Petitioners, who bear the burden

of proof, have submitted nothing to refute a determination that

ZiadÓs birth weight was below the 2,500 grams required for

eligibility for a single gestation, under the definition of

birth - related neurological injury as defined in section

766.302(2).

CONCLUSIONS OF LAW

5 . The Division of Administrative Hearings (DOAH) has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 766.301 - 766.316, Fla. Stat.

6 . The Plan was established by the Legislature Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claimsÑ related to births

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

7 . An injured infant, his or her personal representative,

parents, dependents, and next of kin may seek compens ation under

the Plan by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. Section

766.305(4) provides that NICA, which administers the Plan, has

45 days from the date that a complete claim is served 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.

8 . If NICA determines that the alleged injury is a birth -

related neurological injury that is com pensable under the Plan,

it may award compensation to the claimant, provided that the

award is approved by the assigned administrative law judge.

§ 766.305(7), Fla. Stat. However, if NICA disputes the claim,

as it does in this case, the dispute must be r esolved by the

assigned administrative law j udge in accordance with

chapter 120, Florida Statutes. §§ 766.304, 766.30, and 766.31,

Fla. Stat.

9 . The first inquiry is whether the infant has sustained a

birth - related neurological injury as defined by section

766.302(2), which provides:

ÐBirth - related neurological injuryÑ 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 phys ically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality. (emphasis added).

10 . If the administrative law judge determines that the

infant meets the stat utory threshold for weight and has

sustained a brain or spinal cord injury caused by oxygen

deprivation or mechanical injury, and that as a result of the

injury the infant was rendered permanently and substantially

mentally and physically impaired, then se ction 766.309(1)

provides that there is a rebuttable presumption that the injury

is a birth - related neurological injury.

11 . In this case, the evidence does not support such a

finding. The undisputed evidence presented indicates that at

birth, Ziad weighed 2,149 grams, which is below the threshold

weight specified in the definition in section 766.302(2). This

issue is dispositive with respect to compensability. Based upon

this evidence, Ziad did not sustain a birth - related neurological

injury as de fined in section 766.302(2), and is not eligible for

benefits under the Plan.

CONCLUSION

Based upon the Findings of Fact and Conclusions of Law

provided above, PetitionersÓ claim is not compensable under the

Plan, and the Petition is dismissed with prejudi ce.

DONE AND ORDERED this 1 3 th day of May , 2019 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 1 3 th day of May , 2019 .

COPIES FURNISHED:

(via certified mail)

Lila Natour

Riyad Ahmad

21330 Northe ast 26th Avenue

Aventura, Florida 33180

(Certified Mail No. 7018 0040 0000 9774 0670)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eSer ved)

(Certified Mail No. 7018 0040 0000 9774 0687)

Scott Edward Solomon, Esquire

Falk, Waas, Hernandez & Solomon, P.A.

Suite 500

135 San Lorenzo Avenue

Coral Gables, Florida 33146

(eServed)

(Certified Mail No. 7018 0040 0000 9774 0694)

Amie Rice, Inves tigation 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 0700)

Mary 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 0717)

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 App eal 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).