18-006736N Geraldine Alcivar, As Parent And Natural Guardian Of Elias Manuel Casas, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 17, 2019.

Summary: Based upon the unrebutted evidence of record, Petitioner did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALDINE ALCIVAR, as parent and

natural guardian of ELIAS MANUEL

CASAS, a minor,

Petitioner,

vs. Case No. 18 - 6736N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

OR LANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

AND BABIES; AND JEANNIE

MCWHORTER, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This came before the undersigned on Respond ent’s Motion for

Summary Final Order, filed August 29, 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 Inju ry

Compensation Plan (the Plan), the statutory prerequisites of

section 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 ph ysician 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

resuscitation 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

add ed ).

The term “birth - related neurological injury” is defined in

section 766.302(2) as:

(2) “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 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. (emphasis added).

Petitioner did no t file a response to NICA’s motion within

the allowable response period. However, due to the dispositive

nature of the motion, on September 16, 2019, the undersigned

entered an Order to Show Cause, affording Petitioner an

additional opportunity to file a written response, should she so

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

Cause.

FINDINGS OF FACT

1. On December 13, 2018, Petitioner filed a Petition for

Benefits P ursuant to Florida Statute Section 766.301 et seq. for

benefits pur suant to sections 766.301 - 766.316, Florida Statutes,

otherwise known as the Plan.

2. The baby was born on April 1, 2018, at Winnie Palmer

Hospital for Women and Babies (Hospital). The circumstances of

the labor, delivery , and birth of the minor chil d are reflected

in the medical records the Hospital submitted with the Petition.

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

Willis, M.D. as its medical expert specializing in maternal -

fetal medicine. Upon examination of the pertinent medic al

records, Dr. Willis opined:

There was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

trauma to the baby's brain or spinal cord

during labor, delivery or the immediate

post - delivery period.

4. Dr. Willis’s medical rep ort dated February 25, 2019 ,

(which reviews additional medical records), are attached to his

Affidavit, with the Affidavit being attached to the motion as

Exhibit “1”. His Affidavit reflects his ultimate opinion that:

The baby suffered cerebral infarction , which

appear to have occurred after the period of

stabilization during the immediate post

delivery period. Medical records do not

suggest the cerebral infarction occurred

during labor, delivery or the immediate post

delivery period.

As such, it is my u ltimate opinion that

there was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

trauma to the baby's brain or spinal cord

during labor, delivery or the immediate

post - delivery period.

5. In the instant case, NICA has r etained Michael S.

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

Upon examination of the child and the pertinent medical records,

Dr. Duchowny opined:

I reviewed medical records which document

Elias's birth at 37 weeks' gestation at

Winnie Palmer Hospital. The pregnancy was

complicated by pre - eclampsia, asthma, GERD

and obesity. The mother had a fever to

101 degrees at time of delivery and was

diagnosed with chorioamnionitis. Elias was

born vag inally with a birth weight of

5 pounds 10 oun ces (2547 grams). Apgar

scores were 8 and 9 at 1 and 5 minutes.

Elias was admitted to the NICU and found to

have a blood glucose of 35. His NICU stay

was further complicated by apnea and

desaturation that raised concerns for

seizures; he was started on Keppra,

Elias was never intubated or mechanically

ventilated and was maintained on room air.

An MRI scan of the brain on DOL #2 revealed

multiple ischemic infarcts involving the

left lateral temporal lobe, left posterior

thalamus and left hippocampal form ation.

There was adjacent extra - axial hemorrhage

over the left temporal lobe. The findings

were felt to most likely represent areas of

venous infarction.

Dr. Duchowny’s medical r eport is attached to his Affidavit, with

the Affidavit being attached to th e motion as Exhibit “2”. His

Report reflects his ultimate opinion that:

A consideration of the findings from today's

evaluation and record review lead me to

recommend that Elias not be considered for

compensation within the NICA program. He

has normal mo tor functions and his stroke

was likely acquired prenatally. There is no

evidence of either mechanical injury or

oxygen deprivation in the course of labor,

delivery or the immediate post - delivery

period.

6. The A ffidavits of Dr. Willis and Dr. Duch owny are the

only evidence of record relating to the issue of whether the

subject claim is compensable as defined by the statute. As

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

submit countervailing affidavits. The Petition, along with t he

Affidavits attached to the 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 th e 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” related to births

o ccurring 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 766.305(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 relat ing to the issue of whether the 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, provid ed 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 judge in accordance with

chapter 120, Florida Statutes. §§ 766.304, 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:

“Birth - related neurological injury” me ans

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

amultiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occu rring 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 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 c aused 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 section 766.309(1)

provides that there is a rebuttable presumption that the in jury

is a birth - related neurological 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, Elias Manuel Casas 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’s claim is not compensable under the

Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 17th day of October , 2019 , in

Tallahassee, Leon County, Florida.

W. DAVID WATKINS

Administrative Law Judge

Division of Adm inistrative 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 17th day of October , 2019 .

COPIES FURNISHED:

(via certified mail)

Geraldine Alcivar

1109 Forester Avenue

Orlando, Florida 32809

(Certified Mail No. 7012 1640 0000 7861 2351)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 1640 0000 7861 2368)

Bradley P. Blystone, Esquire

Marshall, Dennehey, Warner,

Coleman and Goggin

Suite 550

315 East Robinson Street

Orlando, Florida 32801

(e Served)

(Certified Mail No. 7012 1640 0000 7861 2375)

Tana D. Storey, Esquire

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7012 1640 0000 7861 2382) Amie Rice, Investigation Manager

Co nsumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1640 0000 7861 2399)

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Dr ive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7012 1640 0000 7861 2405)

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).