STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUMMARY FINAL ORDER

This case is before Administrative Law Judge Lisa Shearer Nelson of the Florida Division of Administrative Hearings for resolution of the Motion for Summary Final Order, filed September 4, 2019, by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA).

STATEMENT OF THE ISSUES

The issues to be determined are: 1) whether Petitioners’ claim for compensation is time-barred pursuant to section 766.313, Florida Statutes (2011); and 2) whether Isai Lopez Martinez, a minor child, has suffered a birth-related neurological injury as defined in section 766.302(2),

compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On October 15, 2018, Natividad Martinez and Silvestre Lopez, as parents and natural guardians for Isai Lopez Martinez (Isai), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq., (the Petition). The Petition alleged that Isai was born at Manatee Memorial Hospital (Manatee Memorial) on September 8, 2011, and suffered brain damage as a result of a birth-related neurological injury. The attending physician was identified as Elias Caltenco, M.D.

On November 13, 2018, copies of the Petition were sent to NICA, Dr. Caltenco, and Manatee Memorial by certified mail.

Although return receipts were received indicating that service was accomplished on both NICA and Manatee Memorial, the copy of the Petition served on Dr. Caltenco was returned as undeliverable. No other address was available for him.

NICA sought and received several extensions of time to file a response, due to difficulties in getting the documents necessary for review of the claim, and difficulties in scheduling an independent medical examination (IME) of the child. On May 22, 2019, NICA requested additional time, and reported that while an IME had been scheduled for May 8, 2019, Petitioners did not appear for the appointment, and NICA had not

been able to reach them. As a result, on May 23, 2019, an Order Granting Extension of Time was filed. While the Order granted the motion, it stated that no further extensions would be granted absent documentation of exigent circumstances. The Order directed Petitioners to make the child available for examination no later than June 14, 2019, and advised that failure to do so without affirmatively seeking an extension with a detailed explanation why the examination could not be completed at that time would result in the determination that Petitioners have not presented a completed claim, and the case would be dismissed.

On June 13, 2019, NICA filed a Status Report that stated attempts were made to schedule the IME by June 14, but

Dr. Duchowny had no available time, and while Petitioners had attempted contact, they had not actually spoken with the person coordinating the appointment. As a result, on June 18, 2019, an Order Granting Final Extension of Time was entered, noting that since filing the Petition, Petitioners had not filed anything at the Division of Administrative Hearings (DOAH), and communications had been sparse between NICA and Petitioners.

The Order directed that the parties work together to schedule an IME no later than August 15, 2019. The Order further stated that if the examination was not completed by August 15, 2019, due to any reason other than Dr. Duchowny’s availability, then

Petitioners were to file an explanation as to why the examination could not be performed.

On August 7, 2019, NICA filed another Status Report, detailing its attempts to reach Petitioners. Because of the inability to reach them, NICA rescheduled the examination for August 6, 2019, with plans to notify Petitioners of the date and reschedule it if they could not attend that day. Notice of the examination was sent by U.S. Mail and Federal Express, providing the date and time, and notifying Petitioners that they needed to confirm with NICA whether they would be able to attend.

Petitioners did not attend the scheduled IME.

On August 13, 2019, Natividad Martinez filed a letter with DOAH, explaining that she could not travel without great difficulty from her home in Bradenton to Dr. Duchowny’s office in Miami, because she has two disabled children. She requested that she be able to attend the IME after the beginning of the school year, as that would make the trip easier to accomplish. As a consequence, on August 15, 2019, an Order was issued that stated, “[i]n an effort to achieve a resolution of this case on the merits, the parties are given one more opportunity for an IME. Petitioner is directed to contact NICA and advise when she is best able to bring her child for the IME. NICA is to work with Petitioner and with its expert to schedule an IME no later than September 30, 2019.”

On September 4, 2019, NICA filed a Motion for Summary Final Order, along with an affidavit and expert report of Dr. Donald Willis. There is no mention of an IME by Dr. Duchowny, and no report from Dr. Duchowny was filed in support of the Motion for Summary Final Order. Petitioners did not respond to the Motion for Summary Final Order, so on September 13, 2019, an Order to Show Cause was issued, providing that any response must be received by September 25, 2019, or the undersigned would conclude that Petitioners did not dispute the basis for the Motion for Summary Final Order, and the motion would be granted. To date, Petitioners have not responded to the Motion for Summary Final Order.

All references to Florida Statutes are to the 2011 codification. The pertinent portions of chapter 766 related to these proceedings have not been amended in any material respect since 2003.

FINDINGS OF FACT

1. Isai was born on September 8, 2011, at Manatee Memorial in Bradenton, Florida. His birth certificate, attached to the Petition, states that his birth weight was 6 pounds, 10 ounces.

2. The medical records available for review included the mother’s medical records for labor and delivery, and out-patient office visits and physical therapy records for Isai. Newborn hospital records for the child were not provided.

3. Birth was by Cesarean section at 40 weeks, because the infant was in breech presentation. Fetal heart tracings were not available for review. Apgar scores were 7 and 9, and the placenta pathology was negative for infection.

4. Isai had out-patient evaluations for severe hypotonia (low muscle tone) and developmental delay. MRI results were normal, and although a genetic evaluation was performed, no results were available for review.

5. Dr. Willis is an obstetrician, specializing in meternal-fetal medicine. At NICA’s request, he reviewed the

   medical records made available to NICA, and opined that based on the available medical records, there was no apparent obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. Dr. Willis’s opinion is credited.

6. Although given multiple opportunities to do so, Petitioners have not filed anything to rebut Dr. Willis’s opinion.

7. The Petition was filed on October 15, 2018, more than five years from Isai’s birth.

   CONCLUSIONS OF LAW

   
   

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

9. 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.

10. 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 the Division.

    §§ 766.302(3), 766.303(2), and 655.305(1), Fla. Stat. Section

    
    

    766.305(4) provides that NICA, which administers the Plan, has

    
    

    45 days from the date that a complete claim is served to file a response to the petition and to submit relevant written information relating to whether the injury is a birth-related neurological injury.

11. If NICA determines that the alleged injury is a birth- related neurological injury that is compensable under the Plan, it may award compensation to the claimant, provided that the award is approved by the assigned administrative law judge.

    § 766.305(7), Fla. Stat. However, if NICA disputes the claim, as it does in this case, the dispute must be resolved by the

    administrative law judge in accordance with chapter 120, Florida Statutes. §§ 766.304, 766.30, and 766.31, Fla. Stat.

12. The first issue for resolution is whether Petitioners’ claim for compensation by the Plan is time-barred. Section

    766.313 provides that any claim for compensation under sections

    
    

    766.301 through 766.316 that is filed “more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred.” Isai was born

    September 8, 2011. The Petition was filed October 15, 2018, well past the five-year limitation in section 766.313.

13. While Petitioners’ claim is time-barred because it was filed more than five years after Isai’s birth, whether the claim presented is compensable must still be determined. University of Miami v. Exposito ex rel. Gonzalez, 87 So. 3d 803 (Fla. 3d

    DCA 2012).

    
    

14. A birth-related neurological injury is defined by section 766.302(2), which provides:

    (2) “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 impaired. This definition shall apply to live births only and shall

    not include disability or death caused by genetic or congenital abnormality.

    
    

15. If the administrative law judge determines that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that as a result, the infant was rendered permanently and substantially mentally and physically impaired, then section 766.309(1) provides that there is a rebuttable presumption that the injury is a birth- related neurological injury. The presumption requires evidence of both the injury and the mental and physical impairments as a result of that injury.

16. In this case, the evidence presented does not support a finding that Isai suffered a birth-related neurological injury. Dr. Willis indicates in his report that while he reviewed

213 pages of medical records, the records available to him did not include the newborn hospital records for the infant. The records that were reviewed included the mother’s records for labor and delivery, and the child’s out-patient records for office visits and physical therapy. However, based on the records available for review, there was no indication of an obstetrical event that resulted in oxygen deprivation or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate postdelivery period. Petitioners provided no evidence to rebut this opinion. Without an

obstetrical event, there can be no birth-related neurological

injury.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that Respondent’s Motion for Summary Final Order on the issue of compensability is granted, and Petitioners’ claim is found to be time-barred. It is further determined to be not compensable. Accordingly, the Petition is dismissed with prejudice.

DONE AND ORDERED this 15th day of October, 2019, in Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 15th day of October, 2019.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7012 1640 0000 7861 2238)

Mary C. Mayhew, Secretary

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7012 1640 0000 7861 2245)

Manatee Memorial Hospital Attention: Risk Management

206 2nd Street East Bradenton, Florida 34208

(Certified Mail No. 7012 1640 0000 7861 2252)

Elias Caltenco, M.D. 3218 Manatee Avenue

Bradenton, Florida 34205

(Certified Mail No. 7012 1640 0000 7861 2269)

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: 18-005930N

Orders for Case No: 18-005930N