STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HILDA LOPEZ AND JORGE ZULUAGA, )

on behalf of and as parents and ) natural guardians of DANIEL ) ZULUAGA, a minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 11-3287N

)

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's Motion for Summary Final Order served and filed with the Division of Administrative Hearings (DOAH) on December 12, 2011.

STATEMENT OF THE CASE

1. On June 27, 2011, Hilda Lopez and Daniel Zuluaga, on behalf of and as parents and natural guardians of

   Daniel Zuluaga, a minor, born August 19, 2010, filed a petition (claim) with DOAH against the Florida Birth-Related Neurological Injury Compensation Association (NICA).1/

2. DOAH served NICA with a copy of the claim/petition on June 3, 2011; served Florida Hospital-Deland, on or about July 5, 2011; and served Richardo Jose Larrain, M.D., on or

   
   

   about July 5, 2011. These are the only health care providers named in the Petition. No person or entity has moved to intervene.

3. On August 11, 2011, Respondent NICA filed a Motion for Extension of Time in Which to Respond to Petition, which motion was unopposed. The motion was granted by an Order entered August 16, 2011.

4. On September 2, 2011, Petitioners filed a Motion to Amend Party Name/Correct Scrivenor's [sic] Error, and on the same day filed an Amended Motion to Amend Party Name/Correct Scrivenor's [sic] error. No response in opposition to either motion was timely filed. The Amended Motion was granted by Order entered September 14, 2011, and an Amended Petition correctly naming Daniel's father as "Jorge Zuluaga," as set out in the style above, was filed on September 16, 2011.

5. On September 21, 2011, NICA filed a letter-report of Donald Willis, M.D., dated August 1, 2011, and another letter- report of Dr. Willis dated August 29, 2011.

6. On October 10, 2011, NICA served and filed another Motion for Extension of Time in Which to Respond to Petition. The Motion was granted by an Order entered November 1, 2011, requiring the Response contemplated by section 766.305(4), be filed by November 23, 2011.

   
   

7. On October 21, 2011, Petitioners served a Motion for Summary Final Order, attaching Dr. Willis' unsworn medical report(s) as grounds therefor. NICA filed a Response to Petitioner's [sic] Motion for Summary Final Order on October 31, 2011, stating NICA did not oppose Petitioners' Motion for Summary Final Order.

8. On November 1, 2011, an Order was entered, providing:

   
   

   This cause came on for consideration upon Petitioners' Motion for Summary Final Order, served October 21, 2011, and same being deficient on its face, due to the absence of any affidavits or other testimony supporting same, is denied without prejudice.

   
   

9. On December 9, 2011, Respondent NICA filed the Affidavit of Donald Willis, M.D., executed December 6, 2011, and on December 12, 2011, Respondent NICA filed a Motion for Summary Final Order. The predicate for NICA's motion is that

   Dr. Willis' affidavit attests that, "Daniel Zuluaga did not suffer a 'Birth-Related Neurological Injury' as defined by Florida Statutes Section 766.302(2), as there was no oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post delivery [sic] period which resulted in injury to Daniel's brain or spinal cord."

10. Dr. Willis' Affidavit, executed December 6, 2011, is rendered within a reasonable degree of medical probability, and opines2/:

    
    

    1. My name is DONALD WILLIS, M.D., and I am a medical doctor licensed to practice medicine in the State of Florida and currently board certified as an OBGYN. Attached hereto as Exhibit 1 is my current Curriculum Vitae.

       
       

    2. I have reviewed the medical records for Daniel Zuluaga DOB 08/19/2010.

       
       

    3. Based upon my education and experience, it is my professional opinion, within a reasonable degree of medical probability that Daniel Zuluaga did not suffer a "Birth-related Neurological Injury" as defined by Florida Statutes Section 766.302(2) as there was no oxygen deprivation or mechanical injury during labor, delivery, or resuscitation in the immediate post delivery period which resulted in injury to Daniel's brain or spinal cord. A detailed report of my review of Daniel Zuluaga's medical records is attached hereto as Exhibit 2. (emphasis added).

       
       

       * * *

       
       

11. The attached (and presumably incorporated) detailed report, dated August 1, 2011, provides, in pertinent part:

    * * *

    
    

    The mother was admitted to the hospital at

    39 weeks gestational age with spontaneous rupture of the membranes and labor. Cervix was dilated 3 cms. Amniotic fluid was meconium stained. Penicillin antibiotic was given during labor for a positive Group B streptococcus vaginal culture. Fetal heart rate monitor tracing during labor was reviewed and does not suggest fetal distress.

    
    

    Vagina birth was accomplished with McRobert's maneuver (hyperflexion of the

    
    

    mother's thighs) and vacuum assistance for poor maternal pushing effort. Birth weight was 3,705 grams. Shoulder dystocia was not described. There was one loop of umbilical cord around the baby's neck at birth and described as loose. Thick meconium was present. The baby was suctioned for meconium on the perineum.

    
    

    The newborn was not depressed. Apgar scores were 9/9. No resuscitation was required at birth. The baby was managed in the normal nursery. Physical exam was suspicious for a fractured clavicle. X-ray was done and confirmed a fractured right clavicle.

    Clavicle fractures occur in about 1% of live births. Although clavicle fracture can result from shoulder dystocia, more than half of the cases have no risk factors.

    There were no physical findings to suggest injury related to the vacuum extractor.

    
    

    The newborn was apparently doing well until about 36 hours after birth. Two episodes of apnea were observed. Within a few hours stiffening of the extremities, rhythmic movements and tongue thrusting were observed, consistent with seizure activity. Medication was started for control of the seizures. MRI on DOL 3 was normal. The baby was transferred to Florida Hospital South. A repeat MRI at 3 weeks of age was also reported as normal.

    
    

    In summary, the mother presented with rupture of the membranes in labor. No fetal distress was present during labor. Delivery was assisted with vacuum extractor. The newborn was not depressed. Apgar scores were 9/9. The newborn was doing well until apnea and seizures developed at about 36 hours of life. MRI was negative.

    
    

    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.

    
    

12. On December 12, 2011, Petitioners filed a Notice of Non-Objection to Respondent's Motion for Summary Final Order.

13. Given the record, there is no dispute of material fact. Specifically, there is no dispute that Daniel Zuluaga did not suffer a birth-related neurological injury in that he suffered no oxygen deprivation or mechanical injury in the course of labor, delivery, or the immediate postdelivery resuscitative period in a hospital. The only injury related is a fractured right clavicle, which is not part of the brain or spinal cord. Although Daniel Zuluaga may have suffered a broken clavicle at birth, there was no injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury.3/

    CONCLUSIONS OF LAW

    
    

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

15. The Florida Birth-Related Neurological Injury Compensation 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.

    
    

16. 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 the Division of Administrative Hearings. §§ 766.302(3), 766.303(2), 766.305(1), and 766.313, Fla. Stat. The Florida Birth-Related Neurological Injury Compensation Association, 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.

17. 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.

18. 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.

19. Pertinent to this case, "birth-related neurological injury" is defined by section 766.302(2), to mean:

    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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis added).

    
    

20. Here, Daniel Zuluaga may, conceivably, have suffered a mechanical injury to his clavicle at birth, but it did not affect his brain or spinal cord, and he indisputably did not suffer oxygen deprivation in the statutory period of labor, delivery, or the immediate postdelivery resuscitative period in a hospital. Given the provisions of section 766.302(2), Daniel does not qualify for coverage under the Plan. See also Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial mental and physical impairment.); Humana of Fla. Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995)("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms."), approved, Fla. Birth-Related Neurological Injury

Comp. Ass'n v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

CONCLUSION

Based upon the foregoing Statement of the Case and Conclusions of Law, it is ORDERED:

1. NICA's Motion for Summary Final Order is granted.

   
   

2. The Amended Petition herein filed by Hilda Lopez and Jorge Zuluaga on behalf of and as parents and natural guardians of Daniel Zuluaga, a minor, be and the same, is dismissed with prejudice.

DONE AND ORDERED this 30th day of December, 2011, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 30th day of December, 2011.

ENDNOTES

1/ Despite the initial petition's style, the father's name is actually "Jorge Zuluaga" as in the Amended Petition. (See paragraph 4 of this Order). Both petitions titled, " . . .

Under Protest Pursuant to Florida Statute Section 766.301 et seq.," and allege that requiring a NICA claim as a precursor to a malpractice action is unconstitutional; that Petitioners took the position that the injuries of the minor are not compensable

under NICA; and that the Petition was filed to preserve the statute of limitations under NICA and further allege that the child, Daniel, had ". . . suffered injuries which include, but may not be limited to, a brachial plexus injury. It is alleged that any injuries suffered by Daniel Zuluaga are not compensable under NICA."

2/ See, e.g., Vero Beach Care Ctr v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("Lay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. Gen. Parcel Servs., 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The

determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Ins. Co. v. Tillman, 765 So. 2d 123,

124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection.").

3/ When, as here, the "moving party presents evidence to support the claimed non-existence of a material issue, he . . . [is] entitled to a summary judgment unless the opposing party comes forward with some evidence which will change that result; that is, evidence to generate an issue of a material fact. It is not sufficient for an opposing party merely to assert that an issue does exist." Turner Produce Co., Inc. v. Lake Shore Growers Coop. Ass'n, 217 So. 2d 856, 861 (Fla. 4th DCA 1969).

Accord, Roberts v. Stokley, 388 So. 2d 1267 (Fla. 2d DCA 1980); Perry v. Langstaff, 383 So. 2d 1104 (Fla. 5th DCA 1980).

COPIES FURNISHED:

(Via Certified Mail)

Maria D. Tejedor, Esquire

Diez-Arguelles and Tejedor, P.A.

505 North Mills Avenue Orlando, Florida 32803

(Certified Mail No. 7010 3090 0000 0717 2243)

Jeffrey P. Brock, Esquire Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900 Post Office Box 15200

Daytona Beach, Florida 32118

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7010 3090 0000 0717 2298)

Elizabeth Dudek, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 2304)

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: 11-003287N

Orders for Case No: 11-003287N