18-005041N Ms. Claudia Andrade As Parent And Natural Guardian Of Nicole Anguiano, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 28, 2019.

Summary: Claim is not "Compensable" as the injury does not meet the definition of a "Birth-Related Neurological Injury" as defined in section 766.302(2), Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MS. CLAUDIA ANDRADE as parent

and natural guardian of NICOLE

ANGUIANO, a minor,

Petitioner,

vs. Case No. 18 - 5041N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

HOME STEAD HOSPITAL, INC.,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This came before the undersigned on RespondentÓs Motion for

Partial Summary Final Order, filed May 1, 2019. In its Motion ,

the Florida Birth - Related Neurological Injury Compensation

Association ( NICA ) asserts that in order for a claim to be

compensable under the Florida Birth - Related Neurological Injury

Compensation Plan ( the Plan), the statutory prerequisites of

s ection 766 .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 . . . (emphasis

suppl ied).

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 ca se 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

render s 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. (emphasis added).

Petitioner did n ot file a response to NICAÓs motion within

the allowable response period. However, due to the dispositive

nature of the motion, on May 22, 2019 , the undersigned entered

an Order to Show Cause, affording Petitioner an additional

opportunity to file a writt en response, should she so choose.

Petitioner did not file a response to the Order to Show Cause.

FINDINGS OF FACT

1 . On July 5, 2018 , the Petitioner filed a Petition for

Benefits pursuant to Florida Statute Section 766.301 et seq. for

b enefits pursuant to s ections 766.301 - 766.316, Florida Statutes,

otherwise known as the Plan.

2 . The baby was born on October 13, 2014 , at Homestead

Hospital. The circumstances of the labor, delivery and birth of

the minor child are reflected in the medical records o f

Homestead Hospital submitted with the Petition.

3 . In the instant case, NICA has retained Donald Willis,

M.D. as its medical expert specializing in maternal - fetal

medicine pediatric neurology. Upon examination of the pertinent

medical records, Dr . Willis opined:

Nursery notes indicate Ðpatient with routine

transition . Ñ Neurologic exam was normal.

The baby was described as active, alert

throughout the newborn hospital stay. Exam

showed normal range of movement for all

extremities. No EEGÓs or i maging studies

were done prior to hospital discharge.

Subsequently the child was diagnosed with

cerebral palsy with spastic hemiplegia and

partial seizures. MRI at about 20 - months of

age showed Gilosis and encephalomalasia,

likely related to old vascula r injury.

4. Dr. WillisÓs m edical r eports dated October 23, 2018 ,

and February 20, 2019 (which reviews additional medical

records) , are attached to his Affidavit, with the Affidavit

being attached to the motion as Exhibit Ð1 Ñ . His Affidavit

reflects his ultimate opinion that:

In summary, the baby did not appear to be

depressed at birth. Apgar scores were 9/9.

Transition was stated to be routine. This

does not appear to be a birth related brain

injury. The additional medical records are

in agreement w ith my opinion that the baby

did not suffer a birth related injury.

5 . In the instant case, NICA has retained Michael S.

Duchowny, M.D. as itÓs medical expert in pediatric neurology.

Upon examination of the child and the pertinent medical records,

Dr. Duchowny opined:

NICOLE ANGUIANOÓs neurological evaluation

reveals findings consistent with a mild - to -

moderate right hemiparesis, in - toeing and

circumducted gait, but stable and

independent ambulation. She evidences delay

in her expressive language d evelopment and a

speech articulation deficit. There is a

history of right - sided motor convulsions

that are presently well - controlled.

Dr. DuchownyÓs medical Report is attached to his Affidavit, with

the Affidavit being attached to the motion as Exhibit Ð 2Ñ . His

Affidavit reflects his ultimate opinion that:

I am not recommending NICOLE ANGUIANO for

inclusion within the NICA program. I

believe that her neurological injuries

resulted from a prenatal stroke that

predated labor and delivery. Furthermore,

Ni cole does not evidence substantial mental

or motor impairments and thus does not have

either a permanent substantial mental

impairment nor a permanent substantial motor

impairment.

6 . The affidavits of Dr. Willis and Dr. Duchowny are the

only eviden ce of record relating to the issue of whether the

subject claim is compensable as defined by statute. As noted,

Petitioner did not file a response to the motion, nor submit

countervailing affidavits. The Petition, along with the

Affidavits attached to th e motion, establish that there are no

genuine issues of material fact regarding the compensability of

this claim.

CONCLUSIONS OF LAW

7 . The Division of Administrative Hearings (DOAH) has

jurisdiction over the parties to and the subject matter of these

pro ceedings. §§ 766.301 - 766.316, Fla. Stat.

8 . 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.

9 . An injured infant, his or her 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 766.3 05(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 t he injury is a

birth - related neurological injury.

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

related neurological injury that is compensable 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 resolved by the

assigned administrative law j udge in accordance with

chapter 120, Florida Statutes. §§ 7 66.304, 766.30, and 766.31,

Fla. Stat.

11 . 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 sp inal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of

amultiple 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 de ath caused by geneticor

congenital abnormality. (emphasis added).

12 . If the administrative law judge determines that the

infant meets the statutory threshold for weight and has

sustained a brain or spinal cord injury caused by oxygen

deprivation o r mechanical injury, and that as a result of the

injury the infant was rendered permanently and substantially

mentally and physically impaired, then section 766.309(1)

provides that there is a rebuttable presumption that the injury

is a birth - related neuro logical injury.

13 . In this case, the evidence does not support a finding

that the injury is a birth - related neurological injury. This

issue is dispositive with respect to compensability. Based upon

this evidence, Nicole Anguiano did not sustain a birth - related

neurological injury as defined 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, Petitioner Ó s claim is not compensable under the

Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 28th day of June , 2019 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

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 28th day of June , 2019 .

COPIES FURNISHED:

(via certified m ail)

Claudia Andrade

Apartment 208

1506 East Mowry Drive

Homestead, Florida 33033

(Certified Mail No. 7016 0910 0001 7987 9238)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christop her Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7987 9245)

Scott Edward Solomon, Esquire

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

Suite 500

135 San Lorenzo Avenue

Coral Gables, Florida 33146

(eServed)

(Certified Mail No. 7 016 0910 0001 7987 9252)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7016 0910 0001 7987 9269)

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 9772 3246)

Mary C. Mayhew , Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(C ertified Mail No. 7018 0040 0000 9772 3253)

Emerita Castillo, M.D.

Suite 206

9299 Southwest 152nd Street

Palmetto Bay, Florida 33157

(Certified Mail No. 7018 0040 0000 9772 3260)

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 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 cl erk 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).