STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NATIVIDAD M. BAUTISTA AND SYLVESTRE L. HERNANDEZ, on

behalf of and as parents and natural guardians of JOSE ALFREDO LOPEZ-MARTINEZ, 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 June 11, 2012.

STATEMENT OF THE CASE

On March 26, 2012, Petitioners, Natividad M. Bautista and Sylvestre L. Hernandez, on behalf of and as parents and natural guardians of Jose Alfredo Lopez-Martinez (Jose), a minor, filed a Petition for Benefits Under Protest 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 Eric Mudafort, M.D. (Dr. Mudafort), and Manatee Memorial Hospital.

DOAH served NICA with a copy of the Petition on March 29, 2012. On March 30, 2012, DOAH served Manatee Memorial Hospital with a copy of the Petition. On its fourth attempt, DOAH served Dr. Mudafort with a copy of the Petition on June 28, 2012. As of the date of this Summary Final Order, Dr. Mudafort has not petitioned to intervene in this proceeding.

On June 11, 2012, NICA filed a Motion for Summary Final Order, asserting that Jose did not sustain a "birth-related neurological injury" as that term is defined in section 766.302(2), Florida Statutes. No response was filed to the

motion.

FINDINGS OF FACT

1. Jose Alfredo Lopez-Martinez was born on September 29, 2004, at Manatee Memorial Hospital in Bradenton, Florida. He weighed 3,125 grams at birth.

2. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jose. In a report dated

   May 24, 2012, Dr. Willis opined as follows:

   
   

   I have reviewed the records for [Jose Lopez- Martinez]. The mother, Natividad Martinez was a 22 year old G2 P1 with late pregnancy care. Pregnancy care was started during the third trimester. She was admitted to the

   
   

   hospital in labor at term. Her cervix was dilated 4 cms on admission. Amniotic membranes were ruptured with clear fluid.

   
   

   Fetal heart rate (FHR) monitor during labor shows a normal baseline heart rate of 130 bpm. FHR variability is reactive. FHR monitor tracing does not suggest fetal distress during labor.

   
   

   Spontaneous vaginal delivery was accomplished without complications. Birth weight was 3,125 grams. The newborn was not depressed. Apgar scores were 9/9. The baby cried and had spontaneous respiratory effort at birth. No resuscitation was required.

   The baby had a normal newborn hospital course and discharged home on DOL 2.

   
   

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   In summary, Labor and delivery were uncomplicated. FHR monitor did not suggest fetal distress during labor. The baby was not depressed at birth. The newborn hospital course was uncomplicated.

   
   

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

   
   

3. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Jose did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor, delivery, or immediate post- delivery period is credited.

   
   

   CONCLUSIONS OF LAW

   
   

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

5. 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.

6. 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.

7. 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.

8. 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.

      
      

9. 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.

   
   

10. The evidence, which is not refuted, established that Jose 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. Therefore, Jose 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 Natividad M. Bautista and Sylvestre L. Hernandez, on behalf of and as parents and natural guardians of Jose Alfredo Lopez-Martinez, is dismissed with prejudice.

DONE AND ORDERED this 20th day of July, 2012, 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 20th day of July, 2012.

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900 Post Office Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7011 1570 0003 4464 5987)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0003 4464 6021)

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: 12-001123N

Orders for Case No: 12-001123N