STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MS. DESTINY RUIZ, as parent and natural guardian of CESAR BENITEZ, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

Case No. 19-6155N

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

January 9, 2020.

STATEMENT OF THE CASE

On November 4, 2019, Petitioner, Destiny Ruiz, as parent and natural guardian of Cesar Benitez (Cesar), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 776.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH), for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition named Andrea Acuna, M.D., as the physician who provided obstetric services for the birth of Cesar at AdventHealth Winter

Park f/k/a Winter Park Memorial Hospital (AdventHealth) in Winter Park, Florida, on November 4, 2016.

On November 27, 2019, DOAH mailed a copy of the Petition to Respondent, Dr. Acuna, and AdventHealth via certified mail.

Respondent was served with the same on December 2, 2019.

On January 9, 2020, Respondent filed a Motion for Summary Final Order (Respondent’s Motion), requesting that a summary final order be entered finding that the claim is not compensable because Cesar did not meet the requisite minimum statutory birth weight as required by section 766.302, Florida Statutes.

Petitioner did not file a response to Respondent’s Motion.

On January 16, 2020, an Order to Show Cause was issued directing Respondent to show cause in writing as to why Respondent’s Motion should not be denied for failing to provide a sufficient evidentiary basis to support the finding of fact at issue; Cesar’s birth weight. On January 22, 2020, Respondent filed its Response to the Order to Show Cause wherein Respondent established that the medical records attached to Respondent’s Motion were provided to Respondent by Petitioner pursuant to section 766.305.1/ Respondent further provided supplemental medical records.

FINDINGS OF FACT

1. Cesar was born on November 4, 2016, at AdventHealth in Winter Park, Florida. He was a single gestation.

   
   

2. The unrefuted medical records provided by Petitioner to NICA document that Cesar’s birth weight was 2360 grams.

   CONCLUSIONS OF LAW

   
   

3. DOAH has jurisdiction over the parties to and the subject matter of these proceedings. §§ 766.301-766.316, Fla. Stat.

4. The Plan was established by the Legislature “for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims” related to births occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

5. 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.

6. NICA has determined that Petitioner does not have a claim that is compensable under the Plan and has filed a Motion for Summary Final Order, requesting that an order be entered finding that the claim is not compensable.

   
   

7. In ruling on Respondent’s Motion, the administrative law judge must make the following threshold 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. 766.302(2).

      
      

      § 766.309(1), Fla. Stat.

      
      

8. 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.

   
   

9. The evidence, which is not refuted, established that Cesar was a single gestation and did not weigh at least 2,500 grams at birth. Thus, Cesar did not sustain a birth-related neurological injury because he did not meet the minimum statutory weight as set forth in the definition of “birth-related

   
   

   neurological injury,” in section 766.302(2). Accordingly, Petitioner’s claim for benefits is not compensable under the Plan.

   CONCLUSION

   
   

   Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petition is dismissed with prejudice.

   DONE AND ORDERED this 4th day of February, 2020, in Tallahassee, Leon County, Florida.

   S

   TODD P. RESAVAGE

   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 February, 2020.

   
   

   ENDNOTE

   
   

   1/ Section 766.305(3) provides that the claimant shall furnish to NICA the following information within 10 days after the filing of the petition:

   
   

   1. All available relevant medical records relating to the birth-related neurological injury and a list identifying any unavailable records known to the claimant and the reasons for the records’ unavailability.

      
      

   2. Appropriate assessments, evaluations, and prognoses and such other records and

      
      

      documents as are reasonably necessary for the determination of the amount of compensation to be paid to, or on behalf of, the injured infant on account of the birth-related neurological injury.

      
      

   3. Documentation of expenses and services incurred to date which identifies any payment made for such expenses and services and the payor.

      
      

   4. Documentation of any applicable private or governmental source of services or reimbursement relative to the impairments.

COPIES FURNISHED:

(via certified mail)

Destiny Ruiz

1450 Winding Trail

Orlando, Florida 32825

(Certified No. 7018 3090 0000 2181 3638)

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308 (eServed)

(Certified No. 7018 3090 0000 2181 3645)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

(Certified No. 7018 3090 0000 2181 3652)

Mary C. Mayhew, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308 (eServed)

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: 19-006155N

Orders for Case No: 19-006155N