STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASANDRA NUNEZ AND MIGUEL NUNEZ, AS PARENTS AND NATURAL GUARDIANS OF MIGUEL NUNEZ, JR., A MINOR,

vs.

Petitioners,

Case No. 20-0382N

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

/

SUMMARY FINAL ORDER

On February 14, 2020, Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a Motion for Summary Final Order, which is due for consideration. The Motion relies on the infant’s birth certificate and medical records provided by St. Joseph’s Hospital

(St. Joseph’s), submitted to NICA as part of Petitioners’ submission of their claim.

STATEMENT OF THE ISSUE

The issue to be determined is whether the infant, Miguel Nunez, Jr. (Miguel Jr.), suffered a birth-related neurological injury as that term is defined by section 766.302, Florida Statutes (2017).

PRELIMINARY STATEMENT

On February 4, 2019, Miguel Jr., by and through his natural parents, Casandra and Miguel Nunez (collectively, Petitioners), filed a Petition for Benefits with the Division of Administrative Hearings (DOAH). While the

Petition for Benefits attached a copy of Miguel Jr.’s birth certificate, it did not contain all of the information required by section 766.305. By letter dated February 20, 2019, Petitioners were notified that they needed to provide the complete name and address of the hospital where Miguel Jr. was born and the name and address of the physician providing obstetrical services.

Petitioners were advised that the date that they provided the requested information would be deemed to be the official filing date of the Petition for Benefits. By January 21, 2020, DOAH received the information needed to complete the Petition for Benefits. The Petition named St. Joseph’s as the hospital where Miguel Jr. was born, and Dr. Carolina Herrnandez as the attending physician providing obstetrical services.

On January 30, 2020, DOAH notified NICA, St. Joseph’s, and

Dr. Hernandez by certified mail that the Petition for Benefits had been filed. A return mail receipt was received indicating that NICA had received service. However, no return receipt has been received for either St. Joseph’s or

Dr. Hernandez.

On February 3, 2020, Kenney Shipley, Executive Director of NICA, filed a Motion to Act as Qualified Representative. The motion is granted. On February 14, 2020, NICA filed a Motion for Summary Final Order, alleging that the claim was not compensable because Miguel Jr.’s birth weight did not meet the statutory threshold. Petitioners are not represented by counsel, so in an abundance of caution, on February 27, 2020, an Order to Show Cause was issued, directing Petitioners to respond to the Motion for Summary Final Order. The Order to Show Cause advised Petitioners that if they failed to timely file a response, then a Final Summary Order would be issued. To date, Petitioners have not filed a response.

FINDINGS OF FACT

1. On March 15, 2018, Casandra Nunez gave birth to a baby boy named Miguel Jr.

2. The birth certificate attached to the Petition for Benefits, and the medical records from St. Joseph’s supplied by Petitioners, indicate that Miguel Jr. weighed one pound, nine ounces, or 700 grams, at birth.

   
   

   CONCLUSIONS OF LAW

3. DOAH has jurisdiction over the parties to and the subject matter of these proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes (2019), as well as section 766.304.

4. The Florida Birth-Related Neurological Injury Compensation Plan (Plan) was established by the Florida 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. 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 DOAH. §§ 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 the petition and to submit relevant written information regarding whether the injury suffered is a birth-related neurological injury.

6. 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. 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. §§ 766.304, 766.30, and 766.31, Fla. Stat.

7. The definition of a “birth-related neurological injury” in section 766.302(2) determines whether a claim is compensable, and 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 last 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).

   
   

8. If the administrative law judge determines that the infant meets the statutory weight threshold and has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and finds that as a result of the injury, 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.

9. In this case, the evidence does not support such a finding. The undisputed evidence presented indicates that Miguel Jr. weighed 700 grams at birth, well below the threshold weight specified in section 766.302(2). The finding that Miguel Jr.’s birth weight is below the statutory threshold is dispositive with respect to compensability. Based upon the evidence presented in support of the Motion, Miguel Jr. 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 upon the Findings of Fact and Conclusions of Law, NICA’s Motion for Summary Final Order is granted, and Petitioners’ claim is found to be not compensable. Accordingly, the Petition for Benefits is dismissed with prejudice.

DONE AND ORDERED this 8th day of April, 2020, 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 8th day of April, 2020.

COPIES FURNISHED:

(via certified mail)

Casandra Nunez Miguel Nunez Apartment 201

13916 Sandy Hill Loop Tampa, Florida 33163

(Certified Mail No. 7019 1640 0000 2208 6521)

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

2360 Christopher Place

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7019 1640 0000 2208 6538)

Amie Rice, Investigation Manager Consumer Services Unit Department of Health

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

(Certified Mail No. 7019 1640 0000 2208 6545)

Mary C. Mayhew, Secretary Health Quality Assurance

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

Tallahassee, Florida 32308 (eServed)

(Certified Mail No. 7019 1640 0000 2208 6552)

Carolina Hernandez, M.D. 2716 West Virginia Avenue Tampa, Florida 33607

(Certified Mail No. 7019 1640 0000 2208 6569)

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

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

(Certified Mail No. 7019 1640 0000 2208 6576)

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: 20-000382N

Orders for Case No: 20-000382N