21-002026N Jan Miguel Falcon Marty And Genesis Marie Pinero Adorno O/B/O Galia Mareanna Falcon Pinero, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, February 4, 2022.

Summary: Summary final order granted where it was undisputed that an oxygen deprivation event did not occur during labor or delivery that caused a brain injury resulting in permanent and substantial mental and physical impairment.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

J AN M IGUEL F ALCON M ARTY A ND

G ENESIS M ARIE P INERO A DORNO O/B/O

G ALIA M AREANNA F ALCON P INERO , A

M INOR ,

Petitioners , Case No. 21 - 2026N

vs.

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

R espondent,

and

O RLANDO H EALTH , I NC . D/B/A W INNIE

P ALMER H OSPITAL F OR W OMEN A ND

B ABIES ,

Intervenor .

/

S UMMARY F INAL O RDER OF D ISMISSAL

On January 6 , 2022, R espondent, Florida Birth - Related Neurological

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

Order. The Motion is unopposed and relies on the reports and affidavits of

Donald Willis, M.D., and Michael Duchowny, M.D ., filed Novem ber 24, 2021,

and January 28, 2022 , respectively .

S TATEMENT OF T HE I SSUE

W hether Galia Mareanna Falcon Pinero (ÑGaliaÒ) suffered a Ñ birth - related

neurological injury ,Ò as defined by section 766.302(2), Fl orida Statutes (2021) ,

for which compensation shoul d be awarded under the Florida Birth - Related

Neurological Injury Compensation Plan (ÑPlanÒ) .

P RELIMINARY S TATEMENT

On June 2, 2021 , Petitioners , Jan Miguel Falcon Marty and Genesis Marie

Pinero Adorno , on behalf of Galia, a minor, filed a Petition , Under Protest, for

B enefits Pursuant to Florida Statutes Section 776.301 et seq., with the

Florida Division of A dministrative Hearings (ÑDOAHÒ). The Petition named

Ricardo Javier Lopez , M.D., and M. Anderson, C.N.M., as the obstetrician

and certified nurse midwi fe, respectively, who delivered Galia on

November 17, 2020 , and Orlando Health, Inc. (ÑHospitalÒ) , d/b/a Winnie

Palmer Hospital for Women and Babies , as the H os pital where she was born.

DOAH sent copies of the Petition via Certified U.S. Mail to NICA , Dr. Lopez,

Nurse Midwife Anderson, and the Hospital on July 2, 2021 .

On July 16, 2021, the Hospital filed a Petition for Leave to Intervene. The

undersigned granted that motion the same day.

After receiving two extensions, NICA filed its Response to Petit ion for

Benefits on November 24, 2021. NICA argued that its experts reviewed the

medical records, conducted an examination of Galia, and opined that the

claim was not compensable. Both Petitioners and Intervenor informed the

undersignedÔs office that they did not oppose NICAÔs position. In an Order

dated December 7, 2021, the undersigned directed NICA to file a motion for

summary final order on or before January 6, 2022.

On January 6, 2022, NICA filed its Motion for Summary Final Order.

Petitioners and I ntervenor did not respond to the m otion, which represents

that neither party disputes NICAÔs assertion that no party opposes its

p osition on compensability .

F INDINGS OF F ACT

1. Petitioners are the parents and legal guardians of Galia.

2. On November 17, 2020 , Ms. Pinero gave birth to Galia, a single

gestation of 41 weeks, at the Hospital . Galia was delivered by spontaneous

vaginal birth and weighed 3,815 grams .

3. Dr. Lopez and Nurse Midwife Anderson provided obstetric al services

and delivered Galia .

4. The undisputed available evidence consists of affidavits and reports of

two physicians: Dr. Willis, a board - certified obstetrician; and Dr. Duchowny,

a board - certified pediatric neurologist.

5 . Dr. Willis reviewed the medical records and offered his opi nions about

GaliaÔs delivery in a report dated November 18, 2021 . Dr. Willis summarized

his opinions as follows:

In summary, labor was induced at 41 weeks

gestational age. The FHR tracing became

abnormal, requiring administering of Terbutaline

to slow uter ine contractions. Although the baby

was initially depressed at birth, the cord blood pH

was > 7.0 and the 5 - minute Apgar score was

normal at 8, suggesting there was no significant

oxygen deprivation at birth. Bag and mask

ventilation was required almost th ree minutes with

eventual transfer to the Transitional Nursery.

Seizure activity was noted at seven hours after

birth. EEG was consistent with diffuse

encephalopathy and MRI showed an acute cerebral

infarct.

This baby suffered acute cerebral infarction, w hich

was document ed by MRI at 10 hours after birth.

The FHR tracing was reassuring during earl y

labor, suggesting the brain injury did not occur just

prior to onset of labor. An abnormal FHR tracing

shortly before birth resulted in a depressed

newborn. How ever, the cord gas pH of 7.19 and a 5 -

minute Apgar score of 8 would suggest the baby did

not suffer any significant oxygen deprivation or

brain injury during labor and delivery. I defer any

opinion concerning brain injury during the post -

delivery period. E xpert interpretation of the MRI

studies and neurological exam of the baby could

provide a more accurate opinion concerning this

time period.

There was no obstetrical event that resulted in

some loss of oxygen to the babyÔs brain during labor

or delivery t hat would have resulting brain injury. I

have no opinion concerning severity of the brain

injury.

6. Based on the medical records, Dr. Willis opined to a reasonable degree

of medical probability that no obstetrical event occurred during birth that

caused Galia to suffer significant oxygen deprivation that would have

resulted in brain injury.

7. Dr. Duchowny reviewed the medical records, conducted an independent

medical examination (ÑIMEÒ) on Galia on August 9, 2021, and offered his

opinions as to whether G alia suffers from permanent and substantial mental

and physical impairment caused by oxygen deprivation in a report dated

November 22, 202 1 . Dr. Duchowny summarized his opinions as follows:

Galie has substantial mental and motor

impairments. However, her i nitially stable

neurological status after birth prior to seizure onset

and absence of neonatal encephalopathy, together

with an abnormal neurological outcome and a

significant brain injury on MR imaging are

inconsistent with the acquisition of her injury

d uring labor and delivery. The fetal heart rate

abnormalities observed during labor are consistent

with depleted fetal reserves rather than timing a

sentinel event. Apart from the occurrence of

seizures, there is also no evidence of acute

deterioration in t he immediate post - delivery period.

It is more like that GaliaÔs brain injury was

acquired shortly before birth. Sepsis is most likely

the cause of GaliaÔs neurological problems although

a prenatal hypoxic - ischemic cause cannot be

excluded.

8 . Based on the medical records and the IME, Dr. Duchowny opined to a

reasonable degree of medical probability that, although Galia has substantial

mental and motor impairments caused by a brain injury, the injury most

likely occurred before labor and delivery.

C ONCLUS IONS OF L AW

9. DOAH has jurisdiction over the parties and exclusive jurisdiction over

the subject matter of this case. § 766.304, Fla. Stat .

10. The Legislature established the Plan Ñ for the purpose of providing

compensation, irrespective of fault, for bir th - related neurological injury

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

11. An injured infant, his or her personal representative, parents,

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

a claim fo r compensation with DOAH. §§ 766.302(3), 766.303(2), and

766.305(1), Fla. Stat. NICA, which administers the Plan, has 45 days from

the date that a complete claim is served to file a response and to submit

relevant written information as to whether the inju ry is a birth - related

neurological injury. § 766.305(4), Fla. Stat.

12. If NICA determines that the infant suffered a compensable birth -

related neurological injury, it may award compensation to the claimants, as

approved by the assigned administrative law judge (ÑALJÒ) . § 766.305(7), Fla.

Stat. But, if NICA disputes the claim, as it does here, the dispute must be

resolved by an ALJ in accordance with chapter 120 , Florida Statutes .

§§ 766.304, 766.309, and 766.31, Fla. Stat.

13. In determining compensability , the ALJ first determines if the child

suffered a Ñbirth - related neurological injuryÒ based on the available evidence.

14. Pursuant to section 766.302(2), the term Ñ birth - related neurological

injury Ò is defined as follows:

[I] njury to the brain or spina l 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 occurring

in the course of labor, d elivery, 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.

Thus, a bir th - related neurological injury has four components: Ñ (1) an injury

to the brain or spinal cord; (2) which is caused by oxygen deprivation or

mechanical injury; (3) during labor, delivery, or resusci tation in the

immediate postdelivery period; and (4) which renders the infant permane ntly

and substantially impaired . Ò Bennett v. St. VincentÔs Med. Ctr., Inc. , 71 So. 3d

828, 837 (Fla. 2011).

15. Petitioners have the burden to establish by a preponderance of the

evidence Ñ 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. Ò

§ 766.309(1)(a), Fla. Stat.; see also § 120.57(1)(j), Fla. Stat. (providing that

findings of fact, except in penal and licensure disciplinary proceedings or as

provided by statute, Ñ shall be based upon a preponderance of the evidence Ò );

Balino v. Dep Ô t of H RS , 348 So. 2d 349, 3 50 (Fla. 1st DCA 1977) (holding

generally that Ñ the burden of proof, apart from statute, is on the party

asserting the affirmative of an issue be fore an administrative tribunalÒ ).

16. If Petitioners meet their burden, section 766.309(1) provides that ther e

is a rebuttable presumption that the injury is a birth - related neurological

injury. Conversely, if Petitioners do not meet their burden, the undersigned is

required to issue an order dismissing the P etition. Id.

17 . Based on the Findings of Fact above, t he undisputed available

evidence establishes that, although Galia suffers from substantial mental

and physical impairment, the brain injury did not occur as a result of oxygen

deprivation during labor, delivery, or the immediate resuscitation period

therea fter. Thus, Galia did not suffer a birth - related neurological injury and

she is not eligible for benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and Conclusions of Law herein, Petitioner s Ô

claim is not compensable, NICAÔs unopposed Motio n for Summary Final

Order is granted, and the Petit ion is dismissed with prejudice.

D ONE A ND O RDERED this 4th day of February , 2022 , in Tallahassee, Leon

County, Florida.

S

A NDREW D. M ANKO

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 4th day of February , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manage r 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 Tal lahassee, Florida 32308

Tallahassee, Florida 32399 - 3275 (Certified No. 7021 1970 0000

(Certified No. 7021 1970 0000 4860 7239) 4860 7291)

Kim Kellum, Esquire Thomas M. Hoeler, Esquire

Agency for Health Care Administration Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3 2727 Mahan Drive, Mail Stop 3

Tallahassee , Florida 32308 Tallahassee, Florida 32308

(Certified No. 7021 1970 0000 4860 7246) (Certified No. 7021 1970 0000

4860 73 45 )

Brooke India Charlan, Esquire

Morgan & Morgan , P.A. Jack Tobias Cook, Esquire

20 North Orange Avenue, Suite 1600 Morgan & Morgan, P.A.

Orlando, Florida 32801 20 North Orange Avenue , 9 th Floor

(Certified No. 7021 1970 0000 4860 7253) Orlando, Florida 32801

(Certified No. 7021 1970 0000

Kenney Shipley, Executive Director 4860 73 07 )

Florida Birth - Related Neurological

Injury Compensation Association Bradley P. Blystone, Esquire

Post Office Box 14567 Marshall, Dennehey, Warner,

Tallahassee, Florida 32317 Coleman and Goggin

(Certified No. 7021 1970 0000 4860 7277) 315 East Robinson Street , Suite 550

Orlando, F lorida 32801

M. Mark Bajalia, Esquire (Certified No. 7021 1970 0000

Bajalia Law 4860 731 4 )

11512 Lake Mead Avenue , Suite 301

Jacksonville, Florida 32256 Michelle Ander son , CNM

( Certified No. 7021 1970 0000 4860 7260) 601 East Rollins Street

Orlando, Florida 32803

Ricardo Lopez, M.D. (Certified No. 7021 1970 0000

7243 Della Drive, Suite H 4860 7 321 )

Orlando, Florida 32819

(Certified No. 7021 1970 0000 4860 7338)

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 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 dm inistrative 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 Appea l. 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).