21-000482N Catherine Christin Silva And Victor Silva, Individually And As Parents And Natural Guardians Of Savannah Silva, A Minor Child vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, January 11, 2022.

Summary: Final Order approving stipulation for entry of award

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C ATHERINE C HRISTIN S ILVA A ND V ICTOR

S ILVA , I NDIVIDUALLY A ND A S P ARENTS

A ND N ATURAL G UARDIANS OF S AVANNAH

S ILVA , A M INOR C HILD ,

Petitioners ,

vs. Case No. 21 - 0482N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENS ATION A SSOCIATION ,

Respondent ,

and

S OUTH M IAMI H OSPITAL , I NC ,

I ntervenor.

/

F INAL O RDER

This matter came before the undersigned on PetitionersÔ and RespondentÔs

Stipulation and Joint Motion for Final Order Deeming Claim Compensable

Pursuant to Chapter 766, Florida Statutes and Joint Motion for Additional

Time to File Joint Stipulation C oncerning the Award, or Alternatively, to

Advise the Court that a Hearing is Required Concerning Award (Joint Motion

for Summary Final Order), filed October 29, 2019. 1

P RELIMINARY S TATEMENT

On February 1, 2021, Petitioners filed a Petition for Compensation

Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the

1 The undersigned has construed the fil ing as a motion for summary final order as the

parties stipulate to the material facts and jointly seek an order approving RespondentÔs

determination that the claim is compensable.

Division of Administrative Hearings (DOAH), for a determination of

compensability under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

On February 23, 2021, South Miami Hospital, Inc.Ôs , Petition for Leave to

Intervene w as granted. On May 11, 2021, RespondentÔs Response to the

Petition was filed, wherein Respondent opined that PetitionerÔs claim was not

compensable as the injury did not meet the definition of a Ñbirth - related

neurological injury,Ò as defined in section 76 6.302(2), Florida Statutes.

On May 11, 2021, the final hearing on the issue of compensab ility was

scheduled for October 7 and 8, 2021. Thereafter, the parties engaged in

robust discovery.

On September 28, 2021, RespondentÔs Unopposed Motion for Leave t o File

Amended Response to Petition and RespondentÔs Amended Response to

Petition was filed. Pursuant to RespondentÔs Amended Response, Respondent

now opined that PetitionersÔ claim was compensable. On the same date,

RespondentÔs Unopposed Motion to Cancel Final Hearing was filed. Said

motion was granted on September 29, 2021, and the final hearing was

canceled. As noted above, the subject Joint Motion for Summary Final Order

was filed on October 29, 2021.

F INDINGS O F F ACT

Pursuant to the Joint Motion for Summary Final Order, Petitioners and

Respondent stipulate to the following facts:

1. Catherin e Christin Silva and Victor Silva, individually and as parents

and natural guardians of Savannah Silva (Savannah), a minor, are the

ÑClaimants,Ò as defined by s ection 766.302.

2. Savannah incurred a Ñbirth - related neurological injury,Ò as that term is

defined in section 766.302(2), on or about August 13, 2020, the date

Savannah was born.

3. Savannah was a single gestation who, at birth, weighed 3,460 grams.

4. Ellen Joy Schwartzbard, M.D., rendered obstetrical services in the

delivery of Savannah and, at all times, was a Ñparticipating physician,Ò as

defined in section 766.302(7).

5. South Miami Hospital is a hospital located in Miami, Florida, and is the

Ñhos pital,Ò as that term is defined in section 766.302(6), where Savannah was

born.

6. South Miami Hospital and Dr. Schwartzbard complied with the

statutory notice requirements under section 766.316.

C ONCLUSIONS O F L AW

7 . DOAH has jurisdiction over the part ies to and the subject matter of

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

8 . The Plan was established by the Legislature Ñfor the purpose of

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

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

§ 766.303(1), Fla. Stat.

9 . Section 766.301(2) provides that it is Ñthe intent of the Legislature to

provide compensation, on a no - fault basis, for a limited class of catastrophic

injuries that result in unus ually high costs for custodial care and

rehabilitation.Ò 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. The administrative law judge ( ALJ ) has exclusive

jurisdiction to determine whether a claim filed under the Plan is

compensable. § 766.304, Fla. Stat.

10 . In discharging this responsibility, pursuant to section 766.309(1), t he

ALJ must make the following determinations based upon all available

evidence:

(a) Whether the injury claimed is a birth - related

neurological injury. If the claimant has

demonstrated, to the satisfaction 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).

(b) Whether obstetrical services were delivere d by a

participating physician 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,

del ivery, or resuscitation in the immediate

postdelivery period in a hospital.

(c) How much compensation, if any, is awardable

pursuant to s. 766.31 .

(d) Whether, if raised by the claimant or other

party, the factual determinations regarding the

notice requirements in s. 766.316 are satisfied.

11. Here, based on the stipulated Findings of Fact set forth above, the

undersigned concludes that Savannah sustained a birth - related neurological

injury; and that obstetrical services w ere delivered by a participating

physician, Dr. Schwartzbard, in the course of labor, delivery, or resuscitation

in the immediate post - delivery period in a hospital, South Miami Hospital.

The undersigned further concludes that both Dr. Schwartzbard and Sou th

Miami Hospital satisfied the notice requirements in section 766.316.

C ONCLUSION

Based on the stipulated Findings of Fact and the Conclusions of Law, it is

O RDERED :

1. The Joint Motion for Summary Final Order is granted, and PetitionersÔ

claim is found a nd determined to be compensable.

2. Jurisdiction is reserved to determine the issue of an award pursuant to

section 766.31.

3. Petitioners shall, within thirty (30) days of this Order, provide written

notice of whether Petitioners desire a hearing to det ermine the issue of an

award pursuant to section 766.31 or whether the parties intend to file a

s tipulation and j oint p etition concerning an award.

D ONE A ND O RDERED this 3rd day of November, 2021 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 2021 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

Consumer Services Unit Agency for Health Care Administration

Department of Health 2727 Mahan Drive, Mail Stop 1

4052 Bald Cypress Way, Bin C - 75 Tallahassee, Florida 32308

Tallahassee, Florida 32399 - 3275 (Certified No. 7020 2450 0002 1970 6579 )

(Certified No. 7020 2450 0002 1970 6562 )

Kim Kellum, Esquire Thomas M. Hoeler, Esquire

Agency for Health Care Administration Agency for Health Care Administration

2727 Mahan Dri ve, Mail Stop 3 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 Tallahassee, Florida 32308

(Certified No. 7020 2450 0002 1970 6586 ) (Certified No. 7020 2450 1970 6647 )

Jackson F. McCoy, Esquire Kenney Shipley, Executive Director

Wicker, Smith, O'Hara, Florida Birth - Related Neurological

McCoy & Ford, P.A. Injury Compensation Association

Suite 800 Post Offic e Box 14567

2800 Ponce de Leon Boulevard Tallahassee, Florida 32317

Coral Gables, Florida 33134 (Certified No. 7020 2450 0002 1970 6630 )

(Certified No. 7020 2450 0002 1 970 6593 )

Brooke M. Gaffney, Esquire

Scott Edward Solomon, Esquire Smith, Stout, Bigman & Brock, P.A.

Falk, Waas, Hernandez, Solomon, Suite 900

Mendlestein & Davis, PA 444 Seabreeze Boulevard

Suite 500 Daytona Beach, Florida 32118

135 San Lorenzo Avenue (Certified No. 7020 2450 0002 1970 6623 )

Coral Gables, Florida 33146

(Certified No. 7020 2450 0002 1970 6609 )

Ellen Joy Schwartzbard, M.D.

Suite 500

6280 Sunset Driv e

South Miami, Florida 33143

(Certified No. 7020 2450 0002 1970 6616 )

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 Appellat e

Procedure. Such proceedings are commenced by filing the original notice of

administrative appeal 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 f ees 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).