19-000273N Yusleidis Soto, As Parent And Natural Guardian Of Suleidis Lopez Soto, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, October 9, 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

YUSLEIDIS SOTO, as parent and

natural guardian of SULEIDIS

LOPEZ SOTO, a minor,

Petitioner,

vs. Case No. 19 - 0273N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ELIZ A G. BRUSCATO, M.D.,

MARTHA J. KUFFSKIE, M.D., AND

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on a M otion for Summary

Final Order filed by Respondent, Florida Birth - Related

Neurological Injury Compensation Association (“NICA”), on

September 16, 2019.

STATEMENT OF THE CASE

On December 3, 2018, Petitioner, Yusleidis Soto, as parent

and natural guardian of Suleidis Lopez Soto (“Suleidis”), a minor,

filed a Petition for Benefits Pursuant to Florida Statute Section

the Florida Birth - Related Neurolog ical Injury Compensation Plan

( the “Plan”).

Petitioner identified Cielo Gnecco, M.D. , as the physician

who provided obstetric al services at Suleidis’s birth on May 27,

2017, at Orlando Health, Inc., d/b/a Winnie Palmer Hospital

(“Winnie P a lmer”) , in Orlando, Florida.

DOAH served Dr. Gnecco with a copy of the Petition on

January 24, 2019, and served Winnie Palmer that same date. NICA

was also served with a copy of the Petition on January 24, 2019.

A Petition for Leave to Intervene was sub sequently filed on

behalf of Eliza G. Bruscato, M.D., and Maria J. Kuffskie, M.D., on

February 28, 2019, which was granted. The Petition to Intervene

alleged that Dr. Bruscato and Dr. Kuffskie provided the

obstetrical services to Suleidis at her birth.

On September 16, 2019, NICA filed a Motion for Summary Final

Order, requesting the administrative law judge enter an order

finding that the claim was not compensable because Suleidis did

not suffer a “birth - related neurological injury” as defined in

sec tio n 766.302(2).

On September 23, 2019, the undersigned issued an Order to

Show Cause as to why NICA’s motion should not be granted. As of

the date of this Summary Final Order of Dismissal, Petitioner has

not responded to either the Order to Show Cause or NI CA’s motion.

FINDINGS OF FACT

1. Suleidis was born on May 27, 2017, at Winnie Palmer

located in Orlando, Florida.

2. Upon receiving a copy of the Petition, NICA retained

Donald Willis, M.D., a board - certified obstetrician/gynecologist

specializing in mat ernal - fetal medicine, as well as Michael S.

Duchowny, M.D., a pediatric neurologist, to review Suleidis’s

medical condition. NICA sought to determine whether Suleidis

suffered a “birth - related neurological injury” as defined in

section 766.302(2).

3. S pecifically, NICA requested its medical experts opine

whether Suleidis experienced an injury to the brain or spinal

cord caused by oxygen deprivation or mechanical injury which

occurred in the course of labor, delivery, or resuscitation in

the immediate po stdelivery period; and, if so, whether this

injury rendered Suleidis permanently and substantially mentally

and physically impaired.

4. Dr. Willis reviewed Suleidis’s medical records and

described her birth as follows:

In summary, a reported monochorionic ,

diamniotic (identical twin) had a demise of

one fetus at 31 weeks, followed by vaginal

delivery of the surviving twin 4 weeks later.

The baby was not depressed at birth.

Umbilical cord blood pH was 7.3. Newborn

hospital course was uncomplicated. Alth ough

the birth weight was just under 2,500, this

was a twin pregnancy.

Dr. Willis also noted that the baby was vigorous at birth, and no

resuscitation was required.

5. Dr. Willis then opined, within a reasonable degree of

medical probability, that:

T here was no apparent obstetrical event that

resulted in oxygen deprivation or mechanical

trauma to the brain or spinal cord during

labor, delivery or the immediate post -

delivery period.

6. Dr. Duchowny also reviewed Suleidis’s medical records,

as well as personally examined Suleidis on August 27, 2019.

Dr. Duchowny observed that:

Suleidis’s neurological evaluation is

consistent with substantial mental and motor

impairment. She has spastic quadriplegic

(double hemiparetic) cerebral palsy, oromotor

incoor dination, alternating esotropia,

microcephaly, absence of receptive and

expressive communication, and multiple

pathologic reflexes. Her developmenta l level

approximates that of a 2 - 3 - month - old infant.

Review of the medical records reveals that

Suleidis w as born vaginally at Winnie Palmer

Hospital at 36 weeks’ gestation via

spontaneous vaginal delivery. Apart from

fetal demise of Twin B at [31] weeks’

gestation, the pregnancy was further

complicated by maternal sickle cell trait and

chorioamnionitis (mate rnal temp = 100.8 F.)

Rupture of the membranes 8 hours before

delivery yielded thick meconium - stained

fluid. Suleidis weighed 2480 grams (5 pounds

7 oz.) and had Apgar scores of 8 and 9 at 1

and 5 minutes. An arterial cord gas was

7.30. Her neonatal co urse was unremarkable

with normal voiding, stooling and breast -

feeding.

7. Following his independent medical examination,

Dr. Duchowny diagnosed Suleidis with cerebral palsy. He further

opined, within a reasonable degree of medical probability, that

Sul eidis’s “neurological impairments are permanent and

substantial.” However, he concluded that her injuries “were

acquired in utero and did not result from intrapartum oxygen

deprivation or mechanical injury.” Therefore, he did not

recommend that Suleidis be included in the NICA Plan.

8. A review of the records filed in this matter reveals no

contrary evidence to dispute the findings and opinions of

Dr. Willis and Dr. Duchowny. Their opinions are credible and

persuasive.

9. Based on the conclusions of Dr . Willis and Dr. Duchowny,

NICA determined that Petitioner’s claim is not compensable. NICA

subsequently filed the Motion for Summary Final Order asserting

that Suleidis has not suffered a “birth - related neurological

injury” as defined by section 766.302( 2). Petitioner has not

filed a response to NICA’s motion.

CONCLUSIONS OF LAW

10. The undersigned, as an administrative law judge, has

exclusive jurisdiction over the subject matter of this proceeding.

§ 766.304, Fla. Stat.

11. The Florida Legislat ure established the Plan “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.

12. The injured infant, her or hi s 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 “45 days f rom 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 injury is a birth - related neurological

injury.” § 766.305(4), Fla. Stat.

13. 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 approved

by the administrative law judge to whom the claim has been

assigned. § 76 6.305(7), Fla. Stat.

14. In this matter, however, NICA determined that

Petitioner’s claim is not compensable under the Plan. Therefore,

NICA filed a Motion for Summary Final Order requesting entry of

such a ruling.

15. In considering NICA’s motion, section 766.309(1)

provides that the administrative law judge must make the following

determination based upon the available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satis faction of the

administrative law judge, that the infant has

sustained 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 - related

neurological injury as defined in

s. 766.302(2).

16. The term “birth - related neurological injury” is defined

in section 766.302(2) as follows:

“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 a multiple

gestation, a live infant weighing at least

2,000 grams at birth caused by oxygen

deprivation or mechanical injury occ urring 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 shal l not

include disability or death caused by genetic

or congenital abnormality.

17. “ The [NICA] Statute is written in the conjunctive and

can only be interpreted to require permanent and substantial

impairment that has both physical and mental elements.” Fla.

Birth - Related Neurological Injury Comp. Ass ’n v. Fla. Div. of

Admin. H earing s , 686 So. 2d 1349, 1356 (Fla. 1997).

18. The undisputed evidence establishes that Suleidis did

not sustain a “birth - related neurological injury” as defined in

section 766.3 02(2). Both Dr. Willis and Dr. Duchowny conclude

that Suleidis’s injury did not occur during labor, delivery, or

resuscitation in the immediate postdelivery period. Dr. Duchowny

did find that Suleidis suffers from a permanent and substantial

motor and ne urological impairment. However, he determined that

Suleidis’s medical condition occurred prior to her birth and not

during the period of time that would entitle Suleidis to

participate in the NICA Plan. Therefore, based on all the

evidence in the record, Suleidis has not suffered a “birth - related

neurological injury” and is not eligible for NICA benefits.

DISPOSITION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition is dismissed, with prejudice.

DONE AND OR DERED this 9th day of October , 2019 , in

Tallahassee, Leon County, Florida.

J. BRUCE CULPEPPER

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 October , 2019 .

COPIES FURNISHED:

(via certified mail)

Yusleidis Soto Ramirez

Apartment 106

570 Wil low Pond Court

Orlando, Florida 32825

(Certified No. 7011 1570 0003 4465 6143 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

2360 Christopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

( Certified No. 7011 1570 0003 4465 6150 )

Henry W. Jewett, II, Esquire

Rissman, Barrett, Hurt, Donahue,

McLain & Mangan, P.A.

15th Floor

201 East Pine Street

Orlando, Florida 32801

(eServed)

(Certified No. 7011 1570 0003 4465 6167 )

Tana D. Storey, Esquir e

Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified No. 7011 1570 0003 4465 6174 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahas see, Florida 32399 - 3275

(Certified No. 7011 1570 0003 4465 6181 )

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 44 65 6198 )

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 Rule s 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, accompani ed 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).