STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISMAIDY LORENZO, AS PARENT AND NATURAL GUARDIAN OF MATEO CAMACHO, A MINOR,

vs.

Petitioner,

Case No. 19-4860N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came for consideration on a Motion for Summary Final Order filed by Respondent, Florida Birth-Related Neurological Injury Compensation Association (“NICA”), on February 14, 2020.

STATEMENT OF THE CASE

On August 28, 2019, Petitioner, Lismaidy Lorenzo, as parent and natural guardian of Mateo Camacho (“Mateo”), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (the “Petition”) with the Division of Administrative Hearings (“DOAH”) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (the “Plan”).

The Petition named Simpson Velez, M.D., as the physician who provided obstetrical services at Mateo’s birth on July 10, 2019, at Winnie Palmer Hospital (the “Hospital”) in Orlando, Florida.

DOAH served Dr. Velez with a copy of the Petition on or about September 17, 2019, and served the Hospital that same date. NICA was also served with a copy of the Petition on September 17, 2019.

On February 14, 2020, NICA filed a Motion for Summary Final Order requesting the administrative law judge enter a summary final order finding that the claim is not compensable because Mateo did not suffer a “birth- related neurological injury” as defined in section 766.302(2), Florida Statutes. NICA asserts that Mateo’s birth weight fell below the statutory threshold of 2,500 grams.

On February 28, 2020, the undersigned issued an Order to Show Cause directing Petitioner to show cause, in writing, why NICA’s motion should not be granted. As of the date of this Order, Petitioner has not responded to NICA’s motion or the Order to Show Cause.

FINDINGS OF FACT

1. Based on all available evidence, the undersigned makes the following findings of fact.

2. Mateo was born on July 10, 2019, at the Hospital located in Orlando, Florida.

3. Petitioner filed the Petition with DOAH on August 28, 2019. DOAH then served a copy of the Petition on NICA on September 17, 2019.

4. In reviewing the claim, NICA obtained medical records regarding Mateo’s birth. The medical records document that Mateo’s weight at birth was 2,365 grams.

5. A review of the medical records submitted in this matter reveals no evidence disputing a finding that Mateo weighed under 2,500 grams at his delivery at the Hospital.

   
   

6. Based on the evidence that Mateo weighed less than 2,500 grams at birth, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Summary Final Order asserting that Mateo did not suffer a “birth-related neurological injury” as defined by section 766.302(2).

   
   

   CONCLUSIONS OF LAW

7. An administrative law judge has exclusive jurisdiction over the subject matter of this proceeding. § 766.304, Fla. Stat.

8. The Florida Legislature established the Plan “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.

9. 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, then 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.

10. 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.

11. In this matter, however, NICA determined that Petitioner’s claim is not compensable under the Plan. Therefore, NICA filed a Motion for Summary Final Order, requesting an order be entered finding that the claim is not compensable.

    
    

12. In ruling on NICA’s motion, section 766.309(1)(a) provides that the administrative law judge must make the following determination based upon the available evidence:

    Whether the injury claimed is a birth-related neurological injury.

    
    

13. 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 post-delivery 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)

    
    

14. The undisputed evidence in the record establishes that Mateo did not weigh at least 2,500 grams at birth. Accordingly, the undersigned determines that Mateo has not suffered a “birth-related neurological injury” as defined in section 766.302(2). Therefore, he is not eligible for NICA benefits.

DISPOSITION

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 24th day of March, 2020, in Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER 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 24th day of March, 2020.

COPIES FURNISHED:

(via certified mail)

Lizmaidy Lorenzo 12940 Cooper Road

Groveland, Florida 34736

(Certified No. 7011 3500 0003 3840 6421)

Kenney Shipley, Executive Director Florida Birth-Related Neurological Injury Compensation Association Suite 1

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified No. 7011 3500 0003 3840 6438)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified No. 7011 3500 0003 3840 6445)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified No. 7011 3500 0003 3840 6452)

Simpson Velez, M.D. 83 West Miller Street

Orlando, Florida 32806

(Certified No. 7019 1640 0000 2306 4986)

Winnie Palmer Hospital Attention: Risk Management 83 West Miller Street Orlando, Florida 32806

(Certified No. 7019 1640 0000 2306 4993)

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: 19-004860N

Orders for Case No: 19-004860N