22-000250N Yancy Velazquez And Luis Velazquez And As Parents And Natural Guardians Of Emma Victoria Velazquez Guadalupe, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, August 24, 2022.

Summary: Summary final order granted where it was undisputed that child?s impairment was not caused by a oxygen deprivation or mechanical injury during labor, delivery, or post-delivery period.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

Y ANCY V ELAZQUEZ A ND L UIS V ELAZQUEZ

A ND A S P ARENTS A ND N ATURAL

G UARDIANS OF E MMA V ICTORIA

V ELAZQUEZ G UADALUPE , A M INOR ,

Petitioner s ,

vs. Case No. 22 - 0250N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A S SOCIATION ,

Respondent .

/

S UMMARY F INAL O RDER OF D ISMISSAL

On July 14, 2022, Respondent, Florida Birth - Related Neurological Injury

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

which is supported by the reports and affidavits of Donald Willis, M.D., and

Luis Bello - Espinosa, M.D ., also filed July 14, 2022 . Petitioners have not filed

a response to the m otion, even though the undersi gned confirmed in the

Order to Show Cause dated August 5, 2022, that they needed to file their

response by August 19, 2022, and that their failure to do so would result in

the undersigned issuing a summary final order of dismissal .

S TATEMENT OF T HE C ASE

W hether Emma Victoria Velazquez Guadalupe ( ÑEmmaÒ ) suffered a

Ñ birth - related neurological injury ,Ò as defined by section 766.302(2), Fl orida

Statutes (202 2 ), 1 for which compensation should be awarded under the

Florida Birth - Related Neurological Injury Com pensation Plan (ÑPlanÒ) .

1 References to the Florida Statutes are to the 2022 versions, which have no t changed in any

way material to the Findings of Fact or Conclusions of Law made herein since 2019.

P RELIMINARY S TATEMENT

On January 24, 2022 , Petitioners, Yancy Velazquez and Luis Velazquez

and as Parents and Natural Guardians of Emma Victoria Velazquez

Guadalupe, a minor, filed a Petition , Under Protest, for B enefits Pursuant t o

Florida Statutes Section 776.301 et seq., with the Florida Division of

A dministrative Hearings (ÑDOAHÒ). The Petition named Carhine Pierre -

Lambert , M.D., as the obstetrician who delivered Emma on January 10, 2019 ,

and Central Florida Regional Hospital as the h os pital where she was born.

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

Lambert, and the hospital on January 27, 2022. 2

After receiving one extension of time to serve its response, NICA filed a

Status Report on Apri l 22, 2022, indicating that it needed releases signed by

Petitioners in order to obtain additional medical records regarding the

delivery and the childÔs treatment. After holding a teleconference with all

parties present on April 28, 2022, the undersigned issued an Order on Status

Report that day, which direct ed Petitioners to execute the outstanding

releases and g ave NICA until June 13, 2022, to respon d to the Petition.

On June 13, 2022, NICA filed its Response to Petition for Benefits. NICA

argued that its experts reviewed the medical records, conducted an

examination of Emma, and opined that the claim was not compensable. In an

Order dated June 30 , 2022, the undersigned gave NICA until July 15, 2022,

to file its motion for summary final order and direct ed Petitioners to file a

response thereto if they opposed the relief requested:

On or before July 29, 2022 , Petitioners shall file

a response to RespondentÔs motion for summary

final order if they oppose the relief requested

2 The letter to Dr. Pierre - Lambert was mailed to the address listed in the Petition, 1071

S outh Sun Drive, Suite 1043, Lake Mary, F lorida 32746, but it was returned as

undeliverable by the U.S. Postal Service. This Order is being mailed to Dr. Pierre - Lambert at

the mailing address listed on the Florida Department of HealthÔs website.

therein. Petitioners shall att ach thereto medical

documentation, affidavits, or any other evidence

that they believe supports their position that the

claim is compensable. Petitioners are cautioned

that the failure to attach sufficient evidence to

their response may result in the under signed

concluding that the facts are undisputed that the

claim is not compensable and issue an order

granting the motion.

On July 14, 2022, NICA filed its Motion for Summary Final Order . In the

Motion, NICA indicated that it had attempted to contact Petit ioners

regarding their position on several occasions, but had not yet received a

response. Petitioners did not file a response to NICAÔs Motion by July 29,

2022, the deadline previously set by the undersigned. Petitioners registered

to e - file through the e ALJ system on or around April 28, 2022, and, thus,

have received copies of all pleadings filed and orders entered via e - service

through DOAHÔs eALJ system. Indeed, Petitioners acknowledged receipt of

the Order on Status Report dated April 28, 2022, NICAÔs Response to Petition

for Benefits and supporting expert reports, and the Notice of Appearance

filed on June 17, 2022, by NICAÔs counsel. However, Petitioners ha d not yet

accessed the link to the Order dated June 30, 2022, or NICAÔs Motion for

Summary Final Order .

Accordingly, the undersigned issued an Order to Show Cause dated

August 5, 2022, which gave Petitioners until August 19, 2022, to file their

response to NICAÔs motion along with supporting documentation if they

intended to challenge NICAÔs positi on that the claim is not compensable. The

Order to Show Cause stated:

Petitioners are cautioned that the failure to

timely file a response or attach sufficient

medical documentation to such a response

will result in the undersigned concluding that

the fac ts are undisputed that the claim is not

compensable and issuing a summary final

order of dismissal .

In an abundance of caution, a copy of the Order to Show Cause was sent to

Petitioners electronically through the eALJ system and via U.S. Mail at their

add ress of record. Although Petitioners have not yet accessed the e - service

link to the Order to Show Cause, the copy sent to them via U.S. Mail was not

returned to sender . Petitioners Ô failure to file a response to NICAÔs Motion for

Summary Final Order Ð as pr eviously warned in two prior Orders Ð is deemed

a concession that they do not contest the relief requested by NICA .

F INDINGS OF F ACT

1. Petitioner s are the parent s and legal guardian s of Emma.

2. On January 10, 2019 , Ms. Velazquez gave birth to Emma, a si ngle

gestation of almost 41 weeks, at the h ospital . Emma was delivered by

cesarean section and weighed 3, 020 grams .

3. Dr. Pierre - Lambert provided obstetric al services and delivered Emma .

4. The undisputed available evidence consists of affidavits and repo rts of

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

Espinosa , a board - certified pediatric neurologist.

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

EmmaÔs delivery in a report dated June 13 , 2022 . D r. Willis summarized his

opinions as follows:

In summary, labor was induced at 40 4/7 weeks.

Cesarean section delivery was done at complete

cervical dilation for failure of decent. Extraction of

the fetus at Cesarean was difficult due to the fetal

head loc ated deeply in the maternal pelvis. The

on e - minute Apgar score was low, likely due to the

difficult extraction. However, the baby quickly

improved with good color and cry by five - minutes.

This wwould [ sic ] suggest the baby did not suffer

any substantial ox ygen deprivation or acidosis at

birth. Seizures developed at 12 hours after birth

with MRI finding on DOL 1 consistent with a

middle cerebral artery infarction.

The baby was initially depressed at birth, likely

related to a difficult extraction at time o f Cesarean

delivery. However, with only 20 seconds of bag and

mask ventilation, the baby rapidly improved and

was noted to have good color and cry by five

minutes. This would suggest there was no

substantial oxygen deprivation or acidosis at birth.

The bab y suffered a cerebral infarction,

documented by seizure activity at 12 hours and

confirmed by MRI on DOL 1. Etiology of the

cerebral infarction was undetermined, but does not

appear to be related to oxygen deprivation or

trauma during labor or delivery.

T here was no apparent oxygen deprivation or

trauma to the baby during labor or delivery that

would have led to brain injury.

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

of medical probability that Ñthere was no apparent oxyge n deprivation or

trauma to the baby during labor or delivery that would have led to brain

injury.Ò

7. Dr. Bello - Espinosa reviewed the medical records, conducted an

independent medical examination (ÑIMEÒ) on Emma on June 4 , 2022, and

offered opinions as to whether Emma suffers from permanent and

substantial mental and physical impairment caused by oxygen deprivation in

a report dated June 4 , 202 2 . Dr. Bello - Espinosa summarized his opinions as

follows:

Emma is a 3 - year 5 - month - old girl born at term

who presen ted at 12 - hours of life with refractory

acute symptomatic electroclinical and

electrographic neonatal status epilepticus, preceded

by unremarkable labor and delivery recorded

evidence of a hypoxic - ischemic event.

In subsequent immediate work up, Emma was

found to have a large left middle cerebral artery

ischemic stroke which was deemed to cause her

seizures. The etiology of the stroke was never

established. Since then, at 6 - month of age, Emma

developed symptomatic epileptic spasm syndrome,

as can be seen a fter previous large arterial cerebral

ischemic strokes. She remains on antiseizure

medication.

On the examination, today is evident that Emma

has severe neurological sequela. At her current 3 -

years and 5 - months, Emma has a noticeable severe

expressive lan guage delay and stereotypical

movements consisting of rocking back and forth

and bilateral hand flapping. She has evident

moderate hypertonia of her right arm and leg, with

right - hand fisting and dystonic posturing, which

are clinical signs indicative of s pastic right

hemiparetic cerebral palsy. Emma is not able to

walk independently. The right hemiparesis results

from injury to the left corticospinal tract and left

basal ganglia structures. Her cognitive impairment

manifested by the severe expressive langu age

delay, her limited sustained attention, and body

stereotypes suggests residual brain dysfunction or

encephalopathy after children have had a history of

super - refractory status epilepticus and severe

epileptic spasms.

* * *

In reviewing all th e available documents, the

evolution of her acute neonatal refractory status

epilepticus, and the reported acute EEG and brain

MRI changes, it is evident that Emma had an acute

perinatal ischemic stroke that involved the left

middle cerebral artery. Howeve r, the subsequent

cerebrovascular injury was not due to oxygen

deprivation of the brain and was not caused by a

hypoxic - ischemic mechanism. There was no

evidence of mechanical injury that occurred during

labor, delivery, or the immediate post - delivery

peri od.

8. Based on the medical records and the IME, Dr. Bello - Espinosa opined

to a reasonable degree of medical probability Ñ that Emma has permanent and

substantial physical and mental impairment, however, the permanent and

substantial mental and physical imp airments were not caused by oxygen

deprivation or mechanical injury occurring during labor, delivery or the

immediate post - delivery period.Ò

C ONCLUSIONS 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 birth - 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 for 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 injury 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 availab le 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 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 occurring

in the course of labor, delivery, or resuscitation in

the immediate postdelivery period in a hospital,

which renders the infant perm anently 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 component s: 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 resuscitation 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. Petitioner s ha ve 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, 350 (Fla. 1st DCA 1977) (holding

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

as serting the affirmative of an issue be fore an administrative tribunalÒ ).

16. If Petitioner s meet t he i r burden, section 766.309(1) provides that there

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

injury. Conversely, if Petiti oner s do not meet t he i r burden, the undersigned is

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

17 . Based on the Findings of Fact above, the undisputed evidence

establishes that , although Emma suffers from permanent and substantial

mental and ph ysical impairment, it was not caused by oxygen deprivation or

mechanical trauma to her brain or spinal cord during labor, delivery, or the

immediate post - delivery period . Thus, Emma 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 Motion for Summary Final

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

D ONE A N D O RDERED this 24th day of August , 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 24th day of August , 2022 .

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Simone Marstiller , Secretary

(Address of Record) (eServed)

(Certified No. 7021 2720 0000 3800 7067) (Certified No. 7021 2720 0000

3800 7111)

Kim Kellum, Esquire

(eServed)

(Certified No. 7021 2720 0000 3800 7074)

Kathe Alexander, Claims Manager Thomas M. Hoeler, Esquire

(eServed) (eServed)

(Certified No. 7021 2720 0000 3800 7081) (Certified No. 7021 2720 0000

3800 7128)

Brooke M. Gaffney, Esquire

(eServed) Yanc y Velazquez

(Certified No. 7021 2720 0000 3800 7098) Luis Velazquez

(eServed and sent via U.S. Mail to Address

Central Florida Regional of Record)

Memorial Hospital (Certified No. 7021 2720 0000

At tenion: Risk Management 3800 7135)

(Address of Record)

(Certified No. 7021 2720 0000 3800 7104) Carhine Pierre - Lambert, M.D.

(Address of Record)

(Certified No. 7021 2720 0000

3800 7142)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

R eview 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 com menced 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 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).