18-006735N Valerie Ramos, As Parent And Natural Guardian Of Bayron Concepcion Ramos, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 4, 2019.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIE RAMOS, as parent and

natural guardian of BAYRON

CONCEPCION RAMOS, a minor,

Petitioner,

vs. Case No. 18 - 6735N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent.

_______ ________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on a Motion for Summary

Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (ÐNICAÑ), o n July 30,

2019.

STATEMENT OF THE CASE

On December 17, 2018, Petitioner, Valerie Ramos, as parent

and na tural guardian of Bayron Concepc ion Ramos (ÐBayronÑ), a

minor, filed a Petition for Benefits Pursuant to Florida Statute

Section 766.301 Et Seq. (the ÐP etitionÑ) , with the Division of

Administrative Hearings (ÐDOAHÑ) for the determination of

compensability under the Florida Birth - Related Neurological Injury

Compensation Plan (the ÐPlanÑ).

The Petition named Ricardo J. Lopez, M.D., as the physician

who pro vided obstetric services at the birth of Bayron on

September 26, 2017, at Winnie Palmer Hospital (ÐWinnie PalmerÑ) in

Orlando, Florida.

DOAH served Dr. Lopez with a copy of the Petition on or about

January 2, 2019, and served Winnie Palmer that same date . NICA

was also served with a copy of the Petition on January 2, 2019.

On July 30, 2019, NICA filed a Motion for Summary Final Order

requesting the Administrative Law Judge enter a summary final

order finding that the claim is not compensable because Bayr on did

not suffer a Ðbirth - related neurological injuryÑ as defined in

section 766.302(2) , Florida Statutes . NICA asserts that BayronÓs

birth weight f e ll below the statutory threshold of 2,500 grams.

On August 13, 2019, the undersigned issued an Order to S how

Cause directing Petitioner to show cause, in writing, why NICAÓs

motion should not be granted. As of the date of this Order,

Petitioner has not responded to NICAÓs motion.

FINDINGS OF FACT

1. Bayron was born on September 26, 2017, at Winnie Palmer

lo cated in Orlando, Florida.

2. Petitioner filed the Petition with DOAH on December 17,

2018. With the Petition, Petitioner produced certain medical

records relevant to the claim. The medical records document that

BayronÓs weight at birth was 2 , 241 grams. (Petitioner also

attached BayronÓs birth certificate to the Petition. The birth

certificate records BayronÓs birth weight at Ð4 LBS 15 OZ,Ñ which

equates to approximately 2 , 239.60 grams.)

3. A review of the medical records submitted in this matter

reve als no evidence disputing a finding that Bayron weigh ed under

2,500 grams at his birth.

4. Based on the evidence that Bayron weighed less than

2,500 grams at birth, NICA determined that PetitionerÓs claim was

not compensable. NICA subsequently filed the Motion for Summary

Final Order asserting that Bayron has not suffered a Ðbirth -

related neurological injuryÑ as defined by section 766.302(2).

CONCLUSIONS OF LAW

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

exclusive jurisdiction over the subj ect matter of this proceeding.

§ 766.304, Fla. Stat.

6. The Florida Legislature established the Plan Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claimsÑ relating to births

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

7. 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 Ð45 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 injur y is a birth - related neurological

injury.Ñ £ 766.305(4), Fla. Stat.

8. 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 approve d

by the Administrative Law Judge to whom the claim has been

assigned. § 766.305(7), Fla. Stat.

9. In this matter, however, NICA determined that

PetitionerÓs claim is not compensable under the Plan. Therefore,

NICA filed a Motion for Summary Final Ord er, requesting an order

be entered finding that the claim is not compensable.

10. In ruling on NICAÓs motion, section 766.309(1) provides

that the Administrative Law Judge must make the following

determination based upon the available evidence:

ÐBirth - rel ated 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

deprivat ion 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.

11 . The undisputed evidence in the record establishes that

Bayron did not sustain a Ðbirth - related neurological injuryÑ as

defined in section 766.30 2(2) , in that Bayron did not weigh at

least 2,500 grams at birth. Accordingly, Bayron has 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

La w, it is ORDERED that the Petition is dismissed, with prejudice.

DONE AND ORDERED this 4th day of September , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administra tive 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 4th day of September , 2019 .

COP IES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified No. 7011 1570 0003 4465 6037 )

Vale rie Ramos

Suite 304

5182 Millenia Boulevard

Orlando, Florida 32839

(Certified No. 7011 1570 0003 4465 6044 )

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified No. 7011 1570 000 3 4465 6051 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7011 1570 0003 4465 6068 )

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7011 1570 0003 4465 6075 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal t o 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. St at., and Fla. Birth - Relate d Neurological

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

1992).