STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA GARCIA AND JAVIER

MARTINEZ, on behalf of and as parents and natural guardians of MELANY MARTINEZ-GARCIA, a

minor,

Petitioners,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), on October 30, 2012.

STATEMENT OF THE CASE

On January 11, 2012, Petitioners, Maria Garcia and Javier Martinez, on behalf of and as parents and natural

guardians of Melany Martinez-Garcia (Melany), a minor, filed a Petition for Determination of Compensability Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan

(Plan). The Petition named Suny Caminero, M.D., and Shands Jacksonville Medical Center (Shands). Petitioners had not supplied the address of the physician with the Petition, but did so by letter filed on March 22, 2012.

DOAH served NICA and Shands with copies of the Petition on March 29, 2012. DOAH served a copy of the Petition on

Dr. Caminero by certified mail and received a receipt from the United States Postal on March 30, 2012, showing that the Petition had been received by Dr. Caminero. As of the date of this Summary Final Order of Dismissal, neither Dr. Caminero nor Shands has filed a petition to intervene in this proceeding.

On October 30, 2012, NICA filed a Motion for Summary Final Order, asserting that Melany did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. Petitioners did not file a response to the Motion for Summary Final Order. On November 28, 2012, an Order to Show Cause was entered requiring Petitioners to show cause in writing on or before December 14, 2012, why the motion should not be granted. As of the date of this Summary Final Order of Dismissal, Petitioners have not responded to the Order to Show Cause.

FINDINGS OF FACT

1. Melany Martinez-Garcia was born on November 1, 2009, at Shands in Jacksonville, Florida. Melany weighed 3,376 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records for Melany and her mother, Maria Garcia, to determine whether an injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital due to oxygen deprivation

   or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post delivery period. In an affidavit dated October 22, 2012, Dr. Willis described his findings as follows:

   Labor was complicated by maternal infection, chorioamnionitis. Umbilical cord blood gas was normal, suggesting the baby did not suffer hypoxia during labor or delivery.

   The vaginal birth was complicated by a mild shoulder dystocia. Delivery was completed within one minute. Again, since the umbilical cord blood gas was not abnormal, the shoulder dystocia was probably not a significant factor in this case. The newborn depression and brain injury was most likely due to infection.

   
   

   There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor or delivery.

   
   

3. Based on his findings, Dr. Willis opined that because there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, there was no causal event which would have rendered Melany permanently and substantially mentally and physically impaired.

4. NICA retained Michael S. Duchowny, a pediatric neurologist, to examine Melany and to review the medical records of Melany and her mother, to determine whether Melany suffers from an injury which rendered her permanently and substantially mentally and physically impaired and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. In an affidavit dated October 24, 2012, Dr. Duchowny stated:

   I evaluated Melany Martinez-Garcia on June 13, 2012.

   
   

   * * *

   
   

   Melany's examination today reveals evidence of mild increase in muscle tone in the lower extremities and a pathological left hand preference. In contract [sic], her social behavior and cognitive development is on target and I suspect her mild expressive language delay will disappear over the next

   24 months.

   
   

   A review of medical records sent on May 8 and June 11, 2012, reveal that Melany was born at 38½ weeks gestation at Shands

   
   

   Jacksonville Hospital. Her mother had been febrile prior to delivery and Melany was born with Apgar scores of 4, 6, and 6 at 1, 5, and 10 minutes. Of notes her cord blood gases were entirely normal. She weighed 3,373 kilograms at birth. There was meconium staining of the amniotic fluid.

   Melany was initially intubated for pulmonary lavage but was immediately extubated; she required positive pressure ventilation for only one hour. Sepsis and herpes simplex exposure were suspected by unconfirmed.

   Melany was treated but no infectious agents were identified. Her brain MRI scan performed on November 6, 2009, reportedly revealed signal abnormality in the basal ganglia bilaterally.

   
   

   Melany had done quite well. Her findings on today's examination do not support a diagnosis of permanent or substantial mental or physical impairment. I, therefore, do not believe that Melany should be considered for compensation under the NICA statute.

   
   

5. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of Dr. Willis and Dr. Duchowny. The opinion of

   Dr. Willis that Melany did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post-delivery period is credited.

   Dr. Duchowny's opinion that Melany does not have a permanent or substantial mental or physical impairment is credited.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla. Stat.

7. The Plan was established by the Legislature "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.

8. 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. NICA,

   
   

   which administers the Plan, has "45 days from 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.

9. 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. § 766.305(7), Fla. Stat. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned administrative law

   
   

   judge in accordance with the provisions of chapter 120, Florida Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

10. In discharging this responsibility, the Administrative Law Judge must make the following determination based upon the available evidence:

    1. 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. 766.303(2).

       
       

    2. Whether obstetrical services were delivered 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, delivery, or resuscitation in the immediate postdelivery period in a hospital.

       
       

       § 766.309(1), Fla. Stat. An award may be sustained only if the administrative law judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." § 766.31(1), Fla. Stat.

       
       

11. The term "birth-related neurological injury" is defined in section 766.302(2) as follows:

    "Birth-related neurological injury" 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 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 permanently and substantially mentally and physically impaired.

    
    

12. The evidence, which is not refuted, established that Melany did not sustain an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital and that Melany does not have a permanent and substantial mental and physical impairments. Therefore, Melany is not eligible for benefits under the Plan.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition filed by Maria Garcia and Javier Martinez, on behalf of and as parents and natural guardians of Melany Martinez-Garcia, is dismissed with prejudice.

The final hearing scheduled for February 19, 2013, is cancelled.

DONE AND ORDERED this 4th day of January, 2013, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

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 4th day of January, 2013.

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7865 0025)

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 Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk 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).

Docket for Case No: 12-001074N

Orders for Case No: 12-001074N