20-001346N Yanela Pena And Carlos Frances Rondon-Silva On Behalf Of And As Parents And Natural Guardians Of Caroline Rondon, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 14, 2021.

Summary: No birth-related neurological injury demonstrated. Petition dismissed.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

Y ANELA P ENA A ND C ARLOS F RANCES

R ONDON - S ILVA O N B EHALF OF A ND A S

P ARENTS A ND N ATURAL G UARDIANS OF

C AROLINE R ONDON , A M INOR ,

Petitioners ,

vs. Case No. 20 - 1346N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATI ON A SSOCIATION ,

Respondent,

and

L AKE S HORE H MA , LLC D/B/A S HANDS

L AKE S HORE R EGIONAL M EDICAL

C ENTER ,

Intervenor .

/

S UMMARY F INAL O RDER

On December 28, 2020, Respondent, Florida Birth - Related Neurological

Injury Compensation Association (NICA), filed a Motion for Summary Final

Order, asserting that PetitionersÔ child did not suffer a birth - related

neurological injury as that term is defined in sectio n 766.302(2), Florida

Statutes. The Motion indicates that Petitioners do not object to the filing of

the motion but makes no statement regarding the position taken by

Intervenor. However, the time provided in Florida Administrative Code

Rule 28 - 106.204 for filing a response has passed, and Intervenor has not filed

any response. After review of the documents filed in this case, the motion is

granted.

S TATEMENT OF T HE I SSUE

The issue to be determined is whether Caroline Rondon, the child of

Yanela Pena and Ca rlos Frances Rondon - Silva, suffered a birth - related

neurological injury as that term is defined in section 766.302(2), compensable

by the Florida Birth - Related Neurological Injury Compensation Plan (Plan).

P RELIMINARY S TATEMENT

On March 4, 2020, Yanela P ena and Carlos Frances Rondon - Silva, on

behalf of and as natural parents of Caroline Rondon, a minor (Caroline), filed

a Petition for Benefits Filed Pursuant to Florida Statute Section 766.301 et

seq. (Petition). The Petition identified Emad Atta, M.D., as the physician

providing obstetrical services, and Shands Lake Shore Regional Medical

Center (Shands Lake Shore) as the hospital where Caroline was born. NICA,

Dr. Atta, and Shands Lake Shore were served with copies of the Petition by

certified mail on Mar ch 17, 2020, and certified return receipts filed with the

Division of Administrative Hearings indicate that all three received service.

On April 10, 2020, Shands Lake Shore petitioned to intervene in the

proceedings, and intervention was granted by Order dated April 22, 2020.

After receiving two extensions of time to respond to the Petition, on July 24,

2020, NICA filed a response asserting that the claim was not compensable

and requesting an evidentiary hearing on the issue of compensability.

Accordingly , on July 27, 2020, an Order was issued, directing the parties to

provide mutually agreeable dates for conducting the hearing, as well as the

preferred venue and an estimate for the length of time needed to conduct the

hearing. Both Intervenor and Petition ers requested additional time to

respond to the Order based on different but well - founded reasons, and on

August 5, 2020, the requests for additional time were granted.

On November 2, 2020, NICA filed a Response to Scheduling Order,

indicating that the p arties remained uncertain as to whether a hearing would

be necessary, but providing possible dates for scheduling a hearing, if

required. On November 10, 2020, a Notice of Hearing by Zoom Conference

was issued, scheduling the hearing for January 19, 2020. On December 28,

2020, NICA filed the instant Motion, to which Petitioners do not object, and

Intervenor has filed nothing in opposition.

F INDINGS OF F ACT

Based on a review of the Petition, the Motion for Summary Final Order,

and the Exhibits attached th ereto, the relevant facts for determination of this

case are as follows:

1. Caroline was born on March 30, 2020, at Shands Lake Shore. She was a

child born of single gestation and weighed 4,233 grams.

2. NICA retained Donald C. Willis, M.D., as a medical e xpert specializing

in maternal - fetal medicine. NICA submitted his expert report dated April 21,

2020, with its Response to Petition for Benefits, and with the Motion for

Summary Final Order. Dr. Willis concluded, based on his review of the

medical records, that while the infant had some degree of oxygen deprivation

at birth, there were no findings of HIE (hypoxic - ischemic encephalopathy)

seen on an MRI, suggesting that the birth - related oxygen deprivation did not

result in identifiable brain injury. He furt her opined that the MRIÔs findings

of leukomalacia are more likely related to an event remote from birth.

3. NICA also retained Raj P. Sheth, M.D., as an expert in pediatric

neurology. Dr. Sheth reviewed the records and examined Caroline. His report

was al so submitted as an exhibit to the Response to Petition for Benefits and

the Motion for Summary Final Order. In that report, Dr. Sheth stated in

part:

In SUMMARY, CarolineÔs neurological examination

reveals È delays mainly in personal social, and

language areas. She showed no spasticity and no

increased tone. She was able to walk without toe

walking. Her problems appear mainly in the area of

personal social interaction with features that would

be suggestive of autism. È

Given the above findings would sugge st that she

complete her evaluation for autism which the

mother reports is scheduled for August 2020.

Further evaluation with genetic consultation may

also be useful. Her findings do not suggest cerebral

palsy as a diagnosis. She appears to have sensory

in tegration difficulties, language difficulties and

personal social interaction difficulties. As such she

would not meet the criteria for persistent and

significant neurologic injury as a result of

mechanical or perinatal trauma to the brain or

spinal cord.

4. The parties do not dispute the conclusions of Dr. Willis and Dr. Sheth.

5. Based on the evidence presented in support of the motion, Caroline is

not eligible for compensation under the Plan because the evidence does not

support a finding that she suff ers from both mental and physical

impairments, or that there is an identifiable brain injury related to labor,

delivery, or resuscitation in the immediate postdelivery period.

C ONCLUSIONS OF L AW

6. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of these proceedings. §§ 766.301 Ï 766.316,

Fla. Stat.

7. The Plan was established by the Florida Legislature Ñfor the purpose of

providing compensation, irrespective of fault, for birth - related neurological

injury claimsÒ related to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

8. An injured child, his or her personal representative, parents,

dependents, or next of kin may seek compensation under the Plan by filing a

claim for compensation w ith the Division of Administrative Hearings.

§§ 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 a petition , and to submit

relevant written information related to whether the alleged injury is a birth -

related neurological injury. NICA has presented the required information in

this case.

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

neurologic al injury that is compensable under the Plan, it may award

compensation to the claimant(s), 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 an

administrative law judge in accordance with chapter 120, Florida Statutes.

§§ 766.304, 766.30, and 766.31, Fla. Stat.

10. A birth - related neurological injury is defined by section 766.302(2),

which provides:

(2) ÑBirth - r elated neurological injuryÒ 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 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.

11. If the administrative law judge determines that the infant has

sustained a brain or spinal cord injury caused by oxygen deprivation or

mechanical injur y, and that , as a result , the infant was rendered

permanently and substantially mentally and physically impaired, then

section 766.309(1) provides a rebuttable presumption that the injury is a

birth - related neurological injury.

12. In this case, there is n o dispute among the parties that there was some

oxygen deprivation at birth, but the evidence does not indicate that there is

an identifiable brain injury as a result of that deprivation. There is also no

dispute that while Caroline has some identifiable d elays in personal, social,

and language development, she is not permanently and substantially both

mentally and physically impaired. Accordingly, the injury suffered by

Caroline is not compensable under the Plan.

C ONCLUSION

Based on the Findings of Fact a nd Conclusions of Law above, Petitioners Ô

claim is not compensable under the Plan. Therefore, the hearing scheduled

for January 19, 2021, is canceled, and the Petition is dismissed with

prejudice.

D ONE A ND O RDERED this 14th day of January , 2021 , in Tallah assee, Leon

County, Florida.

S

L ISA S HEARER N ELSON

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 14th day of January , 2021 .

C OPIES F URNISHED :

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensa tion Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7019 1640 0000 2306 2869)

Grant A. Kuvin, Esquire

Morgan & Morgan

Suite 1100

76 South Laura Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7019 1640 0000 2306 2876)

Richard E. Ramsey, Esquire

Wicker, Smith, O'Hara,

McCoy and Ford, P.A.

Suite 2700

50 North Laura Street

Jacksonville, Florida 32202

(eServed)

(Certified Mail No. 7019 1640 0000 2306 2883)

Tana D. Storey, Esquire

Rutl edge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7019 1640 0000 2306 2890)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahasse e, Florida 32399 - 3275

(Certified Mail No. 7019 1640 0000 2306 2906)

Shevaun L. Harris , Acting Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7019 1640 0000 2306 2913)

Emad Ismael Atta, M.D.

4812 West Highway 90

Lake City, Florida 32055

(Certified Mail No. 7020 1290 0001 6309 8747)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

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 ge ncy 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).