Findings Of Fact By stipulation filed December 27, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of GEANCARLO RODRIGUEZ, PATRICIA RODRIGUEZ and GUSTAVO RODRIGUEZ (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, GEANCARLO RODRIGUEZ, was born at Hialeah Hospital on August 22, 1991, and Hialeah Hospital was a licensed Florida Hospital and the attending physician, Dr. Laida N. Casanova was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 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. The parties agree that GEANCARLO RODRIGUEZ suffers from a right brachial plexus injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated April 28, 1993, and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1 and 2. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Geancarlo reveal that he suffered a right Erb's palsy directly related to the right brachial plexus injury he received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Geancarlo's mental functioning is normal and not impaired due to any birth related complications.
The Issue Whether Emmanuel Jared Marinez, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the death benefit, the amount owing for attorney's fees and costs, and the amount owing for past expenses.
Findings Of Fact Findings related to compensability Magaly N. Marinez is the natural mother of Emmanuel Jared Marinez, a deceased minor. Emmanuel was born a live infant on December 26, 2001, at Orlando Regional South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight exceeded 2,500 grams. Emmanuel expired January 6, 2002, following removal from life support. The physician providing obstetrical services at Emmanuel's birth was Stephen Phillips, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.1 Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Emmanuel suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered him permanently and substantially mentally and physically impaired and which, following removal from life support, resulted in death. Consequently, the proof demonstrates that Emmanuel suffered a "birth-related neurological injury" and, since obstetrical services were provided by a participating physician at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31 provides for an award providing compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . At hearing, the parties agreed that Petitioner receive a parental award of $100,000.00, to be paid in lump sum; a death benefit for the infant of $10,000.00; an award of $10,500.00 for attorney's fees ($10,000.00) and other expenses ($500.00) incurred in connection with the filing of the claim; and no award for past expenses, since any such expenses have been paid by a collateral source. Such agreement is reasonable, and is approved.
Findings Of Fact Scott was born on September 14, 2019, at Brandon Hospital located in Brandon, Florida. The Petition alleges that Karm Alvarez, M.D., Julia King, D.O., and Camille Christelle Imbo-Nlogo, M.D., provided obstetrical services at Scott’s birth.1 Upon receiving the Petition, NICA retained Donald Willis, M.D., a board-certified obstetrician/gynecologist specializing in maternal-fetal medicine, as well as Luis E. Bello-Espinosa, M.D., a pediatric neurologist, to review Scott’s medical records and condition. NICA sought to determine whether Scott suffered a “birth-related neurological injury” as defined in section 766.302(2). Specifically, NICA requested its medical consultants opine whether Scott experienced an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury which occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period. And, if so, whether this injury rendered Scott permanently and substantially mentally and physically impaired. Dr. Willis reviewed Scott’s medical records and noted that: The mother was admitted to the hospital at 36 weeks for induction of labor due to severe Preeclampsia. * * * The baby was depressed at birth. … The baby was floppy and cyanotic at birth with an initial heart rate < 100 bpm. Bag and mask ventilation was started with good response. The baby was taken to the nursery on oxygen. * * * 1 No evidence was presented to the undersigned regarding whether these doctors were “participating physicians” under the Plan at the time Scott was born. See § 766.302(7), Fla. Stat. Neurologic exam was abnormal after birth and with no improvement and the abnormal [arterial blood gas], cooling protocol was initiate for suspected hypoxic-ischemic encephalopathy (HIE). * * * The newborn hospital course was complicated by respiratory distress, elevated liver functions and mild thrombocytopenia … . Head Ultrasound after birth was normal. Continuous EEG during the initial 4 days of life was reported as normal. MRI on DOL 7 was reported as normal. * * * There was an apparent obstetrical event that resulted in oxygen deprivation during labor, delivery and continuing into the immediate post- delivery period. Fortunately, the oxygen deprivation does not appear to have resulted in brain injury, based on a normal MRI on DOL 7. Dr. Willis concluded, within a reasonable degree of medical probability, that “there was no apparent obstetrical event or mechanical trauma to the brain or spinal cord during labor, delivery, or the immediate post-delivery period.” Dr. Bello-Espinosa agreed with Dr. Willis that Scott did not suffer injuries that qualify for inclusion in the NICA Plan. Dr. Bello-Espinosa reviewed Scott’s medical records, as well as conducted an independent medical examination of Scott on August 28, 2020. Dr. Bello-Espinosa opined, within a reasonable degree of medical probability: Scott is an Eleven and a half month-old boy [with] history of therapeutic cooling for hypoxic-ischemic encephalopathy which occurred at birth. Scott’s comprehensive neurological examination is normal today. There was no evidence of upper or lower motor neuron signs, nor finding to indicate any residual encephalopathy or brain dysfunction. His development and cognitive abilities are appropriate for his age despite his history of perinatal asphyxia. Considering the clinical presentation, I do feel that there is not enough evidence to recommend Scott is included in the NICA program. Dr. Bello-Espinosa concluded that Scott does not suffer from a permanent and substantial mental or physical impairment. Dr. Bello- Espinosa did not find any evidence of neurological injury related to Scott’s birth. Based on the statements from Dr. Willis and Dr. Bello-Espinosa, NICA determined that Petitioners’ claim was not compensable under section 766.302(2). A review of the documents in the record reveals no contrary evidence to dispute the findings and opinions of Dr. Willis and Dr. Bello-Espinosa. Their opinions are credible and persuasive.
