STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISBEL GARRIGA, on behalf of and as parent and natural guardian of STEPHANIE VALDES, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

Case No. 19-2534N

SUMMARY FINAL ORDER OF DISMISSAL

This case is before Administrative Law Judge Lisa Shearer Nelson of the Division of Administrative Hearings (DOAH) on a Motion for Summary Final Order (Motion) filed on August 29, 2019, by Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA).

STATEMENT OF THE CASE

The issue to be determined is whether the infant, Stephanie Valdes (Stephanie), suffered a birth-related neurological injury as that term is defined by section 766.302(2), Florida Statutes (2013), compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

PRELIMINARY STATEMENT

On May 13, 2019, Lisbel Garriga, as parent and natural guardian of Stephanie Valdes, filed a Petition for Benefits Pursuant to Section 766.301 et seq. (the Petition). The Petition alleged that Stephanie was born at St. Joseph’s Women’s Hospital (St. Joseph’s) on June 7, 2014, and suffered brain damage as a result of a birth-related neurological injury. The attending physician providing obstetrical services was identified as Dr. Luciano Martinez, of Tampa, Florida.

On May 20, 2019, the Petition was served by certified mail on NICA, St. Joseph’s, and Dr. Martinez. Certified mail receipts were received indicating that service was accomplished on all three.

NICA requested additional time to respond to the Petition, based on the need to obtain all of the relevant records and to obtain expert review of those records, as well as an independent medical examination (IME) of Stephanie. Additional time was granted by Orders dated July 17, 2019, and August 13, 2019. On August 29, 2019, NICA filed the Motion considered herein, relying on the affidavits and opinions of Dr. Donald Willis and Dr. Michael S. Duchowny. When the time allowed by Florida Administrative Code Rule 28-106.204 expired with no response from Petitioner, an Order Requiring a Response to Motion for Summary Final Order was filed, which directed Petitioner to file

a response no later than September 16, 2019. The Order provided that “[f]ailure to timely respond to this Order will result in the conclusion that Petitioner does not dispute the basis for the Motion for Summary Final Order, and an Order granting the motion will be filed.”

To date, Petitioner has filed no response to the Petition, and the time provided in the Order has passed.

FINDINGS OF FACT

1. Stephanie was born at St. Joseph’s on June 7, 2014.

   
   

   She was a child born of single gestation.

   
   

2. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA has submitted his expert report dated August 17, 2019, and affidavit dated August 23, 2019, as Exhibit 1 in support of its Motion.

3. According to Dr. Willis’s expert report, hypertension was noted at Ms. Garriga’s office visit at 36 weeks, but at that time, there was no indication of fetal distress. Labor was induced at 37 weeks for gestational hypertension. Fetal heart rate tracings were reported to be category 1, which indicates no fetal distress. Dr. Willis’s report states that delivery was by spontaneous vaginal birth, with a birth weight of 2,430 grams.

4. Stephanie was depressed at birth, and although she had a “good heart rate,” there was no respiratory effort. Evaluation in the NICU showed overall decreased activity and

   
   

   poor muscle tone. Her chest x-ray revealed streaky infiltrates, consistent with retained lung fluid. Stephanie’s newborn hospital stay was complicated by poor feeding due to a very weak gag reflex, and g-tube feedings were required, with eventual fundoplication performed.

5. Dr. Willis’s report also indicates that an evaluation was performed because of her poor muscle tone, and the neurological evaluation did not identify an etiology for the issue. Other tests were also normal. Dr. Willis’s ultimate opinion is that 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. He also noted that Stephanie’s birth- weight was below the threshold for eligibility for NICA compensation. Dr. Willis’s opinion is credited.

6. Stephanie was also examined by Michael S. Duchowny, M.D., a pediatric neurologist. Dr. Duchowny’s August 14, 2019, expert report and August 26, 2019, affidavit were submitted as Exhibit 2 in support of NICA’s Motion.

7. Dr. Duchowny’s IME occurred when Stephanie was five years old. Upon examination, she could not swallow, sit alone, crawl, or walk. Cognitively, Stephanie speaks well and has achieved age-appropriate speech, and Dr. Duchowny’s neurologic evaluation indicates,

   
   

   Neurologic evaluation reveals a sociable cooperative fully fluent 5-year-old girl. Stephanie was brought to the office in a wheelchair. She is socially interactive and answers questions with accurate verbal content. She correctly identified letters and knew primary and secondary colors. She told me her first and last names. Her speech sounds are fluent and reasonably well articulated, and she maintains an age- appropriate stream of attention.

   
   

8. Dr. Duchowny summarized his opinion, which is credited, in his affidavit, stating:

   In summary, Stephanie’s general physical and neurological examinations reveal profound hypotonia and hypo-reflexia with preserved cognitive status. She is diagnosed with myasthenia gravis (along with her sister), immunodeficiency syndrome neuromuscular scoliosis and bilateral hip dislocations. .

   . .

   
   

   I reviewed the medical records sent on August 12, 2019. Stephanie was born at

   37 weeks’ gestation following a pregnancy complicated by hypertension. She was born floppy with no respiratory effort, but following responded favorably to positive pressure ventilation. Apgar scores were 2, 5, and 6 at 1, 5, and 10 minutes; a venous cord pH was 7.35 with a base excess of -5.6. Severe hypotonia was noted at birth leading to early gastrostomy placement and evaluation into potential genetic causes. A neonatal MR imaging study was read as normal, while a second study at age 4 months revealed delayed myelination.[1/]

   
   

   Based on the record review, clinical diagnoses and the results of the IME, it is my opinion that Stephanie did not suffer an injury to the brain or spinal cord due to oxygen deprivation or mechanical injury in the course of labor, delivery or

   
   

   resuscitation in the immediate postdelivery period which rendered her permanently and substantially mentally and physically impaired.

   
   

9. Based on the evidence presented in support of the Motion, Stephanie is not eligible for compensation under the Plan because her birth weight does not meet the criteria established by statute for a birth-related neurological injury.

10. Based upon the evidence presented in support of the Motion, Stephanie has substantial physical impairments. However, the evidence does not indicate that these impairments are caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

11. Finally, no evidence presented demonstrates that Stephanie suffers from any mental impairment.

12. Petitioner has presented no evidence in response to the Motion to rebut the opinions of Dr. Willis and Dr. Duchowny as detailed in their affidavits and expert reports.

    CONCLUSIONS OF LAW

    
    

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

14. 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.

15. An injured child, his or her personal representative, parents, dependents, or 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 766.305(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 a petition, and to submit relevant written information relating to whether the alleged injury is a birth- related neurological injury.

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

17. 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 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.

    
    

18. 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.

19. In this case, the unrebutted evidence indicates that Stephanie weighed 2,430 grams at birth, which is below the threshold weight for a single birth. Having a birthweight under 2,500 grams for a single gestation is dispositive with respect to compensability. Moreover, while there was evidence of physical impairment, there was no evidence that the impairment was caused by 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. Finally, even assuming that there was such an injury caused by an obstetrical event, there is no evidence to establish that Stephanie suffers

from a mental or cognitive impairment, and compensability requires both mental and physical impairment. Based upon the evidence presented, Stephanie did not sustain a birth-related neurological injury as defined in section 766.302(2), and is not eligible for benefits under the Plan.

CONCLUSION

Based on the Findings of Fact and Conclusions of Law provided above, Petitioner’s claim is not compensable under the Plan, and the Petition is dismissed with prejudice.

DONE AND ORDERED this 7th 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 7th day of October, 2019.

ENDNOTE

1/ Neither Dr. Willis nor Dr. Duchowny explained the terms and/or conditions mentioned in the reports and affidavits, such as hypotonia, mayasthenia gravis, and myelination. While a full understanding of these terms in this case is not necessary in order to reach a conclusion regarding compensability because of

Stephanie’s birthweight and absence of a mental impairment, it would be helpful in future cases if the experts would provide some explanation of the terms they use so that those lay persons (including the ALJ) reading their opinions would have a better understanding of what has transpired.

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 2160)

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 2177)

Luciano Martinez, M.D.

2727 West Dr. Martin Luther King Boulevard Tampa, Florida 33607

(Certified Mail No. 7012 1640 0000 7861 2184)

St. Joseph’s Women’s Hospital Attention: Risk Management

3030 West Dr. Martin Luther King Boulevard Tampa, Florida 33607

(Certified Mail No. 7012 1640 0000 7861 2191)

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: 19-002534N

Orders for Case No: 19-002534N