STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
YOLANDA SANTIAGO AND WILFREDO )
TORRES, individually and on ) behalf of YANDEL TORRES- )
SANTIAGO, a minor, )
)
Petitioners, )
)
vs. )
)
FLORIDA BIRTH-RELATED )
NEUROLOGICAL INJURY )
COMPENSATION ASSOCIATION, )
)
Respondent, )
)
and )
) ORLANDO HEALTH, INC., d/b/a ) WINNIE PALMER HOSPITAL FOR ) WOMEN & BABIES; WINNIE PALMER ) OUTPATIENT CENTER OB/GYN )
FACULTY PRACTICE; JEANNIE )
MCWHORTER, M.D.; MARTHA ) KUFFSKI, M.D.; NORMAN LAMBERTY, ) M.D.; PENNY A. DANNA, M.D.; AND ) AMANPREET S. BHULLER, M.D., )
)
Intervenors. )
Case No. 10-3030N
)
FINAL ORDER
Upon due notice, a final hearing was conducted by Ella Jane
Davis, an Administrative Law Judge of the Division of Administrative Hearings on June 29, 2011, by video teleconference with sites in Orlando and Tallahassee, Florida.
APPEARANCES
For Petitioners: Maria D. Tejedor, Esquire
Christopher J. Bilecki, Esquire Carlos Diez-Arguelles, Esquire Diez-Arguelles and Tejedor, P.A.
505 North Mills Avenue Orlando, Florida 32803
For Respondent: Jeffrey P. Brock, Esquire
Smith, Hood, Perkins, Loucks, Stout, Bigman, & Brock P.A.
444 Seabreeze Boulevard, Suite 900 Daytona Beach, Florida 32118
For Intervenors: Bradley Paul Blystone, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
315 East Robinson Street, Suite 550 Orlando, Florida 32801
STATEMENT OF THE ISSUES
Whether Yandel Torres-Santiago, a minor, sustained a compensable injury under the Florida Birth-Related Neurological Injury Compensation Plan (Plan); and
Whether appropriate pre-delivery notice was provided to the mother and obstetrical patient, Yolanda Santiago.
PRELIMINARY STATEMENT
On June 1, 2010, Yolanda Santiago and Wilfredo Torres, individually and on behalf of Yandel Torres-Santiago (Yandel), filed a petition (claim) with the Division of Administrative Hearings (DOAH) to resolve whether Yandel qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.1/
DOAH served NICA with a copy of the claim on June 3, 2010; served Penny A. Danna, M.D., on June 7, 2010; and served Orlando Health, Inc., d/b/a Winnie Palmer Hospital for Women & Babies, on June 8, 2010. These were the only persons/hospital named in the petition connected with Yandel's birth.
The original petition was dismissed sua sponte on June 7, 2010, due to Petitioners' failure to name the Florida Birth- Related Neurological Injury Compensation Association (NICA) as the Respondent. Petitioners filed an amended petition, properly naming NICA as the Respondent, on June 10, 2010. The amended petition was dismissed on June 15, 2010, due to its inconsistent birth dates for Yandel. This case then proceeded on the second amended petition filed on June 22, 2010.2/
Upon appropriate motion, an order entered July 8, 2010, granted Orlando Health, Inc., d/b/a Winnie Palmer Hospital for Women & Babies (the hospital), Winnie Palmer Outpatient Center OB/GYN Faculty Practice, Jeannie McWhorter, M.D., Martha Kuffski, M.D., Norman Lamberty, M.D., Penny A. Danna, M.D., and Amanpreet S. Bhuller, M.D., leave to intervene. Each of these medical professionals was named in the second amended petition as having provided obstetrical services in connection with Yandel's birth.
On May 9, 2011, following an extension of time in which to do so, NICA responded to the second amended petition for
benefits and gave notice that NICA was of the view that the claim is compensable because the injury to Yandel met the definition of a birth-related neurological injury as defined in section 766.302(2), Florida Statutes.
Respondent and Intervenors filed a Joint Pre-Hearing Statement on June 14, 2011, and Petitioners filed a separate
Pre-Hearing Statement on June 16, 2011. A telephonic prehearing conference was held on June 23, 2011. The case proceeded to final hearing on the issues of compensability and notice on
June 29, 2011.
At final hearing, ALJ Exhibits 1 and 2 (Petitioners' and Respondent's/Intervenors' respective prehearing statements); Petitioners' Exhibits A through T; Petitioners' Exhibits V through Z; Petitioners' Exhibit AA (with corrected page); Petitioners' Exhibit BB; and Petitioners' Exhibits DD through GG and Respondent's and Intervenors' Exhibits Joint 1 through 23 were admitted in evidence.3/
At hearing, Petitioners presented the oral testimony of Yolanda Santiago. Respondent and Intervenors presented no oral testimony.
A transcript of the final hearing was filed with DOAH on July 25, 2011. Upon motion, the parties were granted 30 days from the filing of the transcript in which to file proposed final orders. Each party timely filed its respective proposal,
and each proposed final order has been considered. Thereafter, due to incompleteness of certain exhibits, a period of time was allotted for correcting and completing same.4/
POSITIONS OF THE PARTIES AND BURDENS OF PROOF AS TO COMPENSABILITY
Petitioners take the position that the claim is not compensable because the injury that Yandel sustained (1) was not the result of oxygen deprivation or mechanical injury occurring in the course of "labor, delivery, or resuscitation in the immediate postdelivery period in a hospital" (a/k/a "the statutory period"), and (2) because Yandel's physical and mental problems were caused by a genetic or congenital abnormality.
Respondent and Intervenors take the position that Yandel's injury is compensable, in that it occurred within the statutory period and meets the definition of a "birth-related neurological injury" found at section 766.302(2). See also § 766.302(9).
As proponents of the issue, the burden of proof as to compensability is upon Respondent and Intervenors.
§ 766.309(1)(a), Fla. Stat. See also Balino v. Dep't of Health
and Rehab. Servs., 348 So. 2d 349, 350 (Fla. 1st DCA 1997). The presumption of compensability provided-for by section 766.309(1)(a), may only be exercised by the Petitioners/claimants, and is not available to the other
parties. Bennett v. St. Vincent's Med. Ctr., 2011 Fla. LEXIS 1571; 36 Fla. L. Weekly S 366 (Fla. July 7 2011).
POSITIONS OF THE PARTIES AND BURDEN OF PROOF AS TO NOTICE
Petitioners contend that no physician involved in labor, delivery, or resuscitation in the immediate postdelivery period in the hospital gave pre-delivery notice and that the notice provided by the hospital was insufficient. See §§ 766.309(1)(d) and 766.316.
Respondent NICA has taken no position on the notice issue. Intervenors contend that notice was appropriately given.
As proponents of the proposition that appropriate notice was given, the burden of proof on that issue is upon Intervenors. See Balino v. Dep't of Health and Rehab. Servs., supra.
FINDINGS OF FACT
Stipulated and Threshold Matters
Petitioners, Yolanda Santiago, and Wilfredo Torres, are the parents and natural guardians of Yandel Torres-Santiago, a minor.5/
Winnie Palmer Hospital for Women & Babies is a Florida- licensed hospital, participating in the NICA Plan, and all individual Intervenors (Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny A. Danna, M.D.; and Amanpreet
S. Bhuller, M.D.) were at all times material participating physicians under the NICA plan. (TR-46-47).
Yandel was born at Winnie Palmer Hospital for Women & Babies on July 19, 2008. (Stipulated among the parties in their respective pre-hearing statements).
Yandel was delivered vaginally. (Stipulated among the parties in their respective pre-hearing statements).
Obstetrical services were delivered by
Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny Danna, M.D.; Amanpreet S. Bhuller, M.D.; and George Amyradakis, M.D., in the course of Ms. Santiago's labor and delivery.6/ All of the foregoing physicians were participants in the NICA Plan at all times material.
The physician providing obstetrical services at birth was George Amyradakis, M.D., a hospital "resident," with Norman Lamberty, M.D., as the attending physician.7/
Yandel was the result of a single gestation, and his birth weight was 2,735 grams. (Stipulated among the parties, and see TR-15).
Yandel's Apgars8/ at birth were 3/7. (Stipulated among the parties).
Yandel suffered from neonatal alloimmune thrombocytopenia at birth. (Stipulated among the parties).
Yandel is permanently and substantially mentally and physically impaired. (Stipulated among the parties).
Yandel's medical condition and treatment is documented in the birth records of Winnie Palmer Hospital for Women & Babies. (Stipulated among the parties).
Wilfredo Torres and Yolanda Santiago have been together and/or married for 25 years. They had three healthy sons prior to Yandel's conception. Yolanda Santiago suffered two miscarriages prior to Yandel's conception.
Findings of fact as to compensability
In July 2008, while pregnant with Yandel,
Yolanda Santiago was 41 years old with diabetes mellitus and ulcerative colitis. Hypertension developed at 37 weeks' gestation. She was admitted to Winnie Palmer Hospital for Women & Babies on July 17, 2008, with pre-eclampsia.9/ Her blood pressure on admission was elevated to 152/100, and she was complaining of a headache. Magnesium sulfate was started for management of preeclampsia and labor was induced.
On Ms. Santiago's admission to the hospital on July 17, 2008, Drs. Jeannie McWhorter and Stephanie Ladowski were attending obstetricians. On July 18, 2008, Dr. Martha Kuffski was the attending obstetrician.
Yandel's baseline fetal heart rate (FHR) during labor was 130 to 140 beats per minute (BPM). Overall, there was
reduced FHR variability during labor. Severe variable FHR decelerations with FHR below 60 BPM occurred prior to Yandel's delivery.
On July 19, 2008, Ms. Santiago's membranes were artificially ruptured, and at 3:41 p.m., Yandel was delivered vaginally without forceps.
The attending physician at Yandel's birth,
Dr. Lamberty, and Ms. Santiago recognized each other in the delivery room at Winnie Palmer Hospital for Women & Babies.
Dr. Lamberty described Yandel's delivery by a hospital resident as "completely uneventful."
At birth, Yandel had visible petichiae. There also were pale bluish, non-blanching spots on his right axilla and over the left chest; slightly decreased tone; and bruising of the face and head, but his scalp was not torn and no physical abnormalities were noted.
Petichaie are pinpoint red spots marking tiny hemorrhages under the skin. Some testifying physicians thought they were, more likely than not, evidence that a brain hemorrhage also could have occurred during labor and delivery. Others did not consider that an obvious connection, and felt that thrombocytopenia alone can cause a petechial rash.
Yandel required only manual stimulation and minimal oxygen in the first minutes of life. He was quickly stabilized and breathing room air.
Yandel's Apgar scores of "3" at one minute and "7" at five minutes do not indicate distress. Respiratory effort was "weak" at birth, but respiratory effort improved and was noted to be good at five minutes of age.
Yandel's "7" Apgar score at five minutes indicated that Yandel was pink, had a good heart rate, good respiratory effort, and was breathing on his own. Yandel never required intubation or placement on a ventilator in the delivery room. Nonetheless, he was transferred to the transitional nursery, instead of being transferred to the new-born nursery, which provided a lesser level of care than the transitional nursery, or to the new-born intensive care unit (NICU), which provided a higher level of care than the transitional nursery.
Yandel was transported to the transitional nursery in an open crib and breathing room air. There is no evidence of continued or continuous resuscitative efforts or of any need for resuscitative efforts after Yandel was stabilized in the delivery room and no evidence of any need for resuscitative efforts during his transfer to the transitional nursery.
Yandel arrived at the transitional nursery breathing on his own and in presumably good condition, except for some
bluing of the extremities, but his condition declined several hours later.
According to NICA's witness, Dr. Donald C. Willis, a board-certified obstetrician with special competence in maternal-fetal medicine, the "immediate postdelivery
resuscitative period" would have ended for Yandel with the five- minute Apgar recordation.
All of the other physicians who testified on the subject considered the end of resuscitation in the immediate postdelivery period to have occurred when Yandel was stabilized. As might be expected, there was some disagreement as to what constituted stabilization.
The four physicians deposed in this case for their expertise in determining condition and causation were the obstetrician, Dr. Willis; Dr. Michael Duchowny, a pediatric neurologist; Dr. Claudio Sandoval, a pediatrician and pediatric hematologist-oncologist; and Dr. Robert DiGeronimo, a neonatologist. Their respective testimonies as to what each believed happened after Yandel left the delivery room and regarding the etiology of Yandel's impairments differ in many respects, but all four physicians clearly and unequivocally agree that Yandel was born with a condition termed "alloimmune thrombocytopenia"; that alloimmune thrombocytopenia is an
abnormal condition; and that Yandel's alloimmune thrombocytopenia existed in utero and at his birth.
Yandel's fetal alloimmune thrombocytopenia existed in the uterus and constituted neonatal alloimmune thrombocytopenia in the newborn.
All the testifying physicians agreed that alloimmune thrombocytopenia is not "genetic," in that it does not pass as a defect of the genes from parent(s) to child. All were willing to call the condition "congenital" or "hereditary," but several preferred the term, "acquired condition" as well. Nonetheless, it is clear that the condition is "acquired" by the infant before birth, and the only difference between fetal alloimmune thrombocytopenia and neonatal alloimmune thrombocytopenia is that the child has been born. It is, however, a condition that is treatable after birth.
The Legislature has not defined the word, "congenital" within sections 766.301-766.316, nor indeed, anywhere within the current statutes. Dorland's Illustrated Medical Dictionary, page 1988 (28th ed. 1994), defines "congenital" as, "existing at, and usually before, birth; referring to conditions that are present at birth, regardless of their causation. Cf. hereditary."
Apparently, there are other forms of thrombocytopenia which may develop in different ways. However, alloimmune
thrombocytopenia is a condition acquired in the mother's uterus, due to incompatibility between the mother's blood platelet type and that of the baby. It occurs when the baby inherits the same platelet type as the father, whose platelet type is incompatible with that of the mother. The mother's blood crosses the placenta and attacks the baby's platelets as if the baby's platelets were foreign bodies. The mother's antibodies then proceed to destroy the platelets of the baby, resulting in thrombocytopenia (low platelet count). Alloimmune thrombocytopenia occurs in less than one in 1,000 births.
For the first hour and 20 minutes after birth on July 19, 2008, Yandel was in the transitional nursery. He was somewhat bluish during this time, but breathing on his own.
At approximately 5:00 p.m., an assessment (history and physical) was performed by a pediatrician who concluded that Yandel was stable. At that time, Yandel's eyes, lungs, heart, and abdomen were recorded as normal. His trunk, spine, and extremities were recorded as normal. His head and neck were normal. His anterior fontenels10/ were recorded as "soft and flat," and thus, normal. The fontenels permit a baby's head to pass through the birth canal with minimal "molding" of his head and permit the baby's brain to grow as his head and body grow and mature after birth. From the 5:00 p.m., assessment, it appears that no bulge was visible at that time as might have
been expected with bleeding or swelling in Yandel's head. Yandel had normal grasp, normal sucking instinct and normal suck, and he could move all his extremities. His vital signs were recorded as "normal." He was fed 20 ml of formula and transferred to the newborn nursery.
Between 4:05 and 7:30 p.m., of July 19, 2008, Yandel's heart rate decreased from 150 to 118.
At four hours of life, (approximately 7:00 p.m., on July 19, 2008) Yandel had a brief episode of apnea (interruption in the ability to breathe). He desaturated (in this context, "lost oxygen" in his blood) to 69%. Thirty minutes thereafter, he had a 20-second desaturation episode to 44%, and was placed on supplemental oxygen. He experienced two more desaturation episodes lasting 40 and 45 seconds.
At 10:00 p.m., on July 19, 2008, Yandel's blood platelet level was 41,000. The normal range is 150,000 to 350,000. His hemoglobin and hematocrit levels were also low at
13.3 and 39.8, respectively.
At approximately 1:42 a.m., on July 20, 2008, Yandel was transferred to NICU, on a ventilator, but his fontenels were still open, soft and flat. He was awake and alert and with his reflexes intact, and stable, but he was recorded as having intermittent tremors. No bleeding was reported.
At 3:10 a.m., on July 20, 2008, at approximately 12 hours of life, Yandel's platelet level was 19,000, with hemoglobin of 11.7 and hematocrit of 35.9. The foregoing measurements constitute a 50% drop in platelet count over a period of five hours and are consistent with loss of oxygen through a brain bleed.
At 8:11 a.m., on July 20, 2008, a head ultrasound confirmed that Yandel had experienced a large intraventricular and intraparietal brain bleed with a midline shift.
At 10:14 a.m., on July 20, 2008, an ultrasound encephalogram report stated that the examination was abnormal with large amounts of blood in the lateral third ventricle of Yandel's brain.
At 5:27 p.m., on July 20, 2008, Dr. Olavarra noted Yandel's fontenels were full and tight, which meant something (in this case, blood) was filling up the brain and its ventricles.
At 3:50 a.m., on July 21, 2008, Yandel received a transfusion of blood products which increased his platelet count to 235,000, but he had lost blood volume.
At 8:54 a.m., on July 21, 2008, the extent of the brain bleed was confirmed by a CT scan of Yandel's head, which revealed blood in the lateral and third ventricles and the parietal lobes.
On July 21, 2008, a pediatric hematologist diagnosed the brain bleed as resulting from alloimmune thrombocytopenia.
The parties and their respective experts have different views both of when Yandel's brain bleed began and of at what point the bleed caused injury to his brain.
Respondent NICA's and Intervenors' experts assert that the brain bleed began while Yandel was passing through the birth canal and occurred due to the "mechanical forces" or "shearing effect" of the contractions of a normal vaginal delivery, whereby the infant's soft head, followed by his body, passed through the mother's pelvis and vagina, resulting in a long- term, continuous bleed. Petitioners advocate for a finding that there was a spontaneous bleed at some point beyond the period of "labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." (The statutory period). They contend that the bleed began no sooner than four hours after birth; after Yandel had been stabilized; and after the immediate postdelivery resuscitative period had ended. They further suggest that the injury to Yandel's brain may have occurred even beyond the lapse of four hours.
Obstetrician Dr. Donald C. Willis reviewed Yandel's and Ms. Santiago's medical records for Respondent NICA. He testified that, despite Yandel's improving Apgar scores within five minutes of birth at 3:41 p.m., on July 19, 2008; favorable
newborn pediatric assessment at approximately 4:00 p.m.; and stabilized condition for nearly four hours on July 19, 2008, nonetheless, within reasonable medical certainty, significant brain hemorrhage had occurred to Yandel during labor and delivery because, with thrombocytopenia, the most common time for hemorrhage is at the time of delivery, when the baby's head has to mold into the birth canal. Dr. Willis also suggested that even the brief loss of oxygen during any normal uterine contraction could constitute sufficient loss of oxygen to produce the brain bleed discovered much later.
Dr. Willis' testimony suggests that any baby suffering from fetal alloimmune thrombocytopenia will suffer a mechanical brain hemorrhage and subsequent oxygen deprivation through the normal birthing process, in which case, Yandel's situation would seem to represent a congenital condition not subject to compensation under the statute, but he also stated that labor and birth are simply the most common time for such babies to hemorrhage in the brain.
There is no dispute that alloimmune thrombocytopenia, acquired by an infant in utero, makes that infant more susceptible to a brain bleed during birth than an infant without such acquired condition. However, all four physicians, including Dr. Willis, concede that not every baby with alloimmune thrombocytopenia suffers a brain bleed due to an
uneventful vaginal delivery, or even suffers apneic episodes, as did Yandel.
Dr. Claudio Sandoval is an eminent pediatric hematologist-oncologist. Although he deferred to either a neonatologist (such as Dr. DiGeronimo) or a pediatric neurologist (such as Dr. Duchowny) to determine whether or not Yandel had a bleed in his brain at the time of birth significant enough to have caused brain damage more than 12 hours later, Dr. Sandovol provided insight that there is a difference between some loss of oxygen versus mechanical injury to the brain via a brain bleed.
Dr. Sandoval's opinion, in sum, was that the statutory period for compensability ended once the baby was stabilized in the delivery room. He placed the beginning of Yandel's brain bleed at some point between the complete blood count (CBC) reading of 41,000 platelets at approximately 10:00 p.m., on July 19, 2008, and the CBC reading of 19,000 platelets the next morning at about 3:00 a.m., on July 20, 2008. Dr. Sandoval's reasoning was that the injury had to have occurred at that point in time, because only at that point in time had the bleed reached "critical mass" sufficient to cause oxygen deprivation to the brain. He opined that although thrombocytopenic babies may be susceptible of bleeding, very few thrombocytopenic babies have a bleed into their brains as a result of the birthing
process. He relied on the NICU admission assessment at
1:42 a.m., on July 20, 2008, that the child was stable with no evidence of active bleeding, and best-timed Yandel's injury caused by oxygen deprivation to when Yandel's fontenels began to bulge from the released blood.
Dr. Michael Duchowny is a pediatric neurologist, selected by Respondent NICA. Like Dr. Sandoval, selected by Petitioners, Dr. Duchowny also concluded that the claim was not compensable because the injury occurred outside the statutory period. He assessed the birth record and observed an older Yandel via video. Dr. Duchowny could not make up his mind as to whether or not alloimmune thrombocytopenia was, or was not, congenital (see his deposition, pages 53, 54, and 71), but he stated that some type of insult of record, other than the birth itself, was necessary for him to reach a conclusion that the damage to Yandel's brain occurred during the birth.
Dr. Duchowny found no such insult in the birth records, and concluded that Yandel suffered a spontaneous bleed occurring when Yandel's platelet count fell below 20,000. Although at one point, in a very long deposition, he was mistaken as to the point in time at which the platelet count fell below 20,000 (he believed the platelet count was continually dropping through the 3:10 a.m., platelet count at 12 hours of life until the baby was transfused at 7:45 p.m., on July 20, 2008) Dr. Duchowny
ultimately timed Yandel's brain damage as beginning when the desaturations began to occur and the first apneic episodes were recorded.
On the other hand, neonatologist Dr. DiGeronimo acknowledged that the mechanical forces of labor and birth can cause immediate brain damage in a baby with alloimmmune thrombocytopenia and opined that a brain capillary may have been torn by the shearing forces of labor and delivery (mechanical injury) and bled out. He also opined that apnea is not restricted to thrombocytopenic babies or to babies with brain bleeds. Apnea can occur for a wide range of reasons and with a wide range of manifestations and etiologies. Dr. DiGeronimo also considered it common for newborns who have sustained a brain injury at birth to not evidence any symptomatology of that bleed until hours later:
Q: Why did it take four hours after birth for him to start having an apnea event as a result of his brain injury?
A: [Dr. DiGeronimo] So apnea is just one sign of a brain injury, and there are babies that often have significant brain injury that don't have any apnea or don't present with apnea. Apnea can also occur for different reasons outside of brain injury. Babies -- some babies just have apnea. But it's -- it's very well known if you look at brain injury, babies go through kind of an acute injury and then they have a kind of a latent period where they recover and often aren't symptomatic, or improve transiently, and then subsequently as brain
injury continues and the cells of the brain suffer ongoing injury and don't recover, their brain essentially goes into a secondary phase of injury, and this is typically when you see seizures and you may see apnea. And that can be a variable period, but it's very common in clinical practice where you'll have a baby that will have an insult and then will look better for a period of time, and then subsequently will get symptomatic with systems. [sic]
Q: Is that the course that Yandel Torres-Santiago took after his birth?
A: Yeah. I believe there was a component of that. I -- you know, I still think he was symptomatic at birth, he required resuscitation, but he did have a period where he appeared stable enough where they sent him to the transition nursery, but
-- but then obviously later on and not too long a period developed apnea, and then later on clinical seizures as well, which is consistent with kind of the timing of a brain injury occurring during the labor and delivery process.
The division of opinion of the several experts is troubling, particularly since the pediatric oncologist- hemotologist, Dr. Sandoval, deferred to either a neonatologist or a pediatric neurologist and those two specialists disagree on causation and timing of the insult to the brain. It is tempting to find that Dr. Duchowny's mistake as to when Yandel's platelet count first fell below 20,000 is cause to discount the remainder of his testimony, but it is more reasonable to say that his testimony, as a whole, could support a spontaneous brain hemorrhage at 12 hours of life as much as it could support a
slow bleed beginning earlier, at around four hours of life, and does not support a finding that a mechanical injury occurred in the statutory period.
The undersigned has thoroughly reviewed voluminous medical records and carefully assessed, compared, and weighed all the threshold assumptions of the various medical experts, with particular attention to those of Dr. Willis and Dr. DiGeronimo, whose medical disciplines (obstetrics and neonatology, respectively) cover the time period of labor, delivery and newborn care when the intracranial bleed and resulting damage are alleged to have occurred.
According to Drs. Willis and DiGeronimo, alloimmune thrombocytopenia, without any activity by the obstetricians, accounted for an initial insult to Yandel's brain during labor or delivery. However, it is noteworthy that neither of these specialists was able to point to a specific objective incident during labor, delivery, or resuscitation in the delivery room when they alleged the "mechanical shearing" injury to Yandel's brain occurred. Also, neither expert had correlated any statistical probability that there had been a tear to the brain as described by Dr. DiGeronimo. In sum, their assessment was that not all alloimmune thrombocytopenic babies suffer an insult to their brains during labor and delivery, but most who do suffer such an insult suffer it in that time frame. While their
testimony suggests that there may be an unquantified statistically higher occurrence of injury in such babies across the spectrum of such births, it is not objective evidence of an actual insult/injury to Yandel's brain within the statutory period. If anything, it tends to demonstrate the existence of a congenital abnormality without which the ultimate injury and impairment would not have occurred.11/
In contrast, the objective records show Yandel was an infant compromised by thrombocytopenia, a noncompensable congenital abnormality. He had an uneventful labor and delivery without external mechanical intervention by the obstetricians, such as forceps or vacuum extraction. There was no identifiable obstetrical incident, event, or apparent complication during labor, delivery, or the immediate postdelivery manual stimulation, which constituted his immediate postdelivery "resuscitation", which can be pointed-to as an insult to his brain or spinal cord. There was no observable injury to his head or scalp upon delivery. His petechial rash did not necessarily evidence injury to his brain. There was no bleeding from the mouth or nose which various opinions suggest might signal a brain bleed. Yandel achieved the wholly acceptable five minute Apgar score of "7," and he evidenced no symptoms of oxygen deprivation or other injury until after leaving the delivery room and the parameters of obstetrical care.
Here, the statutory presumption in favor of compensability does not exist because Petitioners have not elected to claim it, and each of the parties has cited Bennett v. St. Vincent's Medical Center, supra, as instructive on how to resolve this case. However, the opinion in Bennett, while establishing that only Petitioners may claim the statutory presumption in favor of compensability and providing important dicta about the purpose and limitations of the NICA statute,12/ only addressed a situation in which the infant suffered a material and substantial mental and physical impairment as the result of oxygen deprivation in the statutory period, which is not the case here.13/
Bennett dealt with the more typical case in which NICA and the health care providers took the position that the infant suffered 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," and petitioners/claimants therein took the position that it was not a case of "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." However, in the instant case, NICA and Intervenors assert that Yandel sustained an "injury to the brain . . .
caused by . . . mechanical injury, occurring in the course of labor [or] delivery, . . ."
Herein, it has been shown that Yandel's brain injury, whenever it occurred, may have at least partially been the result of his congenital alloimmune thrombocytopenia, but it is unlikely that he suffered any substantial neurologic impairment until after he experienced a series of profound oxygen deprivations beginning no sooner than four hours after the statutory period had ended. Upon the evidence as a whole, Respondent and Intervenors have not demonstrated that, more likely than not, Yandel sustained a mechanical injury to his brain . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period.
Findings of fact as to notice
Apart from contesting compensability, Petitioners also sought the opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the statutory NICA notice provisions were not satisfied by the health care providers. See Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings, et al., 29 So. 3d 992 (Fla. 2010). ". . . [I]f either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and forgo any civil suit against any other person or
entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA." Galen of Fla., Inc. v.
Braniff, 696 So. 2d 308, 309, (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.").
Consequently, it is necessary to resolve whether the hospital and the participating physicians complied with the notice provisions of the Plan. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). Accord O'Leary v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum."); University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v.
Fla. Birth-Related Neurological Injury Comp. Ass'n, 880 So. 2d 1253 (Fla. 1st DCA 2004).
The statutory notice requirement is expressed at section 766.316, as follows:
Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s.
766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association, and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s.
395.002(8)(b) or when notice is not practicable. (emphasis added).
Intervenors have not raised the defenses of "emergency" or "not practicable," and as the proponents of the notice issue they bear the burden of proving that notice was given.
It is Petitioners' position, based upon Florida Birth- Related Neurological Injury Compensation Association v.
Department of Administrative Hearings, that neither the hospital nor any of the physicians involved in labor, delivery, or resuscitation in the immediate postdelivery period in the hospital gave appropriate pre-delivery notice of participation in the NICA Plan. Intervenors contend otherwise.
Winnie Palmer Outpatient Center OB/GYN Faculty Practice (hereafter Faculty Practice) is located at 89 West Copeland Drive, Orlando, Florida. It is one of a number of offices and hospitals in the Orlando, Florida, area operated by Orlando Health Inc. Winnie Palmer Hospital for Women & Babies is a teaching hospital located in the same downtown area and is part of the same medical network operated by Orlando Health, Inc.
In 2007, Ms. Santiago began receiving prenatal care at the Faculty Practice for her sixth pregnancy (Yandel), because the Faculty Practice provided "high risk pregnancy" services and she had a problem with her cervix which had resulted in two prior miscarriages.
Ms. Santiago continued to have regular periodic appointments at the Faculty Practice for the remainder of her pregnancy with Yandel.
At all times material to Ms. Santiago's pregnancy with Yandel and Yandel's birth on July 19, 2008, the Faculty Practice employed 22-27 physicians. Ms. Santiago had no regularly-
assigned physician at the Faculty Practice. At each visit there, she was seen by whichever Winnie Palmer Hospital for Women & Babies' resident and/or attending physician was available. As a group practice, all Faculty Practice physicians (attending obstetricians and residents) rotated delivery calls at the hospital, so it was possible any of the Faculty Group obstetricians or residents would participate in Yandel's delivery, and the parent company paid NICA participation fees for all of them.
At all times material, Jeannie McWhorter, M.D., Martha Kuffski, M.D., and Armanpreet Bhuller, M.D., were employees of Orlando Health, Inc. who provided care and treatment to obstetrical patients at the Faculty Practice.14/
At all times material, Dr. Norman Lamberty and
Dr. Penny A. Danna were employed by Physicians Associates, P.A., a private medical practice corporation not associated with the Faculty Practice. At all times material, Physicians Associates, P.A., had offices in location(s) different than the Faculty Practice, but the competent, credible evidence herein does not support a finding that either Dr. Lamberty or Dr. Danna ever saw Ms. Santiago in connection with their private P.A. for
Ms. Santiago's pregnancy with Yandel. Regardless of
Dr. Lamberty's speculation that he could have been present in the hospital and at Yandel's delivery as the "on call" physician
on behalf of his private P.A., the totality of the competent credible evidence herein does not support a finding that
Dr. Lamberty ever saw Ms. Santiago in connection with her pregnancy with Yandel prior to entering the delivery room on July 19, 2008, although he may have seen Ms. Santiago in connection with the private P.A. for one of her previous pregnancies.
At all times material, Dr. Norman Lamberty and Dr. Penny A. Danna also were paid a stipend as part of the
teaching staff of Winnie Palmer Hospital for Women & Babies, and in that capacity they assisted physicians in that teaching hospital's residency program with delivering babies. At all times material, they relied on the hospital to provide notice to patients and on the hospital or parent corporation to pay their NICA fees.
Apparently, Dr. Danna did not see Ms. Santiago at all during her pregnancy with Yandel until after Ms. Santiago was admitted to the hospital on July 17, 2008, for labor and delivery, and there is merely an equipoise of testimony as to whether or not Dr. Lamberty saw Ms. Santiago during the two days she was in the hospital awaiting Yandel's birth.15/
It is, however, clear that Dr. Lamberty was an "on call" attending physician overseeing residents on behalf of the hospital on the date of Yandel's delivery. Dr. Lamberty is
credible that he was the attending physician at Yandel's birth and that a hospital resident delivered Yandel in his presence. Dr. Lamberty did not give the resident's name, but the parties have agreed that the delivering hospital resident was George Amarydakis. (See Finding of Fact 6 and n.7).
In 2007-2008, over the course of Yandel's gestation, Ms. Santiago made multiple prenatal visits to the Faculty Practice, and to Winnie Palmer Hospital for Women & Babies. She also pre-registered for her delivery at the hospital. (See
Finding of Fact 83). During these visits, she signed at least five forms acknowledging her receipt of the NICA-published "Peace of Mind" brochure which explained her rights under the NICA Plan and her right to choose a non-NICA-affiliated provider if she wished to do so. Each acknowledgment form bore the heading, "ORLANDO REGIONAL HEALTHCARE." Each acknowledgment read as follows:
FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN
ACKNOWLEDGEMENT OF PATIENT RECEIPT OF NOTICE
I have been advised that Orlando Regional Healthcare System, Inc., and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth-
Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191 /1(800)398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. (emphasis added).
The acknowledgment forms do not name or otherwise identify any particular physician as a NICA participant.
part:
The NICA Peace of Mind brochure read, in pertinent
If your health care provider has provided you with a copy of this informational form, your healthcare provider is placing you on notice that one or more physicians at your health care provider participates in the NICA plan.
At final hearing, Ms. Santiago testified in English with an Hispanic accent, but she did not represent that she had a global inability to read or understand spoken or written English, and she was able to accurately read aloud the items printed in English which were placed in front of her. She identified her signature on all five NICA acknowledgment forms, and ultimately acknowledged that she had printed her name under her signature and filled in her Social Security number and Yandel's expected delivery date on four of them. Each of these particular four forms bears a sticker showing the name of either Dr. Carolyn Ladowski or Dr. Stephen Carlan, each of whom was
then associated with the Faculty Practice. Ms. Santiago represented that she had never received the NICA brochure she had repeatedly acknowledged receiving and that she had volitionally signed one or more NICA acknowledgement forms without reading it/them simply because there were a lot of papers presented for her to sign each time she went to the Faculty Practice.
As to all of the acknowledgment forms, Ms. Santiago variously represented that she had not understood the forms she was signing, because if she had understood them, she would not have signed them; that if she had understood them, she would have selected another hospital to go to for Yandel's birth; and that if she had understood the forms, then each time a form was presented to her after the first one was presented, she would have told the presenter of the form, the equivalent of "I signed this before, so I should not have to sign it again now," or "I will not sign again." Her "in the alternative" explanations, provided after the fact and in the course of litigation, are not credible.
Nurse Kathy Winkleblack signed as the Faculty Practice's witness to Ms. Santiago's January 8, 2008, NICA acknowledgement form. As might be expected, she did not specifically recall Ms. Santiago. However, she testified that her usual procedure, in presenting the NICA brochure to an
obstetrical patient and in securing that patient's signature on the acknowledgment form(s), was to explain orally that "all the physicians" or "all the doctors" at the Faculty Practice were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. In these oral explanations, Nurse Winkleblack made no distinction between "residents" and "resident physicians," and she did not name any specific physicians associated with the Faculty Practice. She simply said that "all the physicians" or "all the doctors" at the Faculty Practice participated in the NICA program. She used acknowledgment forms printed in English unless the obstetrical patient evidenced an inability to understand English, in which case she would use a brochure and acknowledgement form in one of three languages, including Spanish. She had an interpreter available if she needed one.
The fact that Nurse Winkleblack had used an English form for Ms. Santiago on January 8, 2008, indicated to her that
Ms. Santiago spoke and understood English reasonably well at that time. Nurse Winkleblack always signed as a witness after the patient signed.
Three employees of Winnie Palmer Hospital for Women & Babies (Kyle Monroe, Francessca Torres, and Charlotte Wray),
signed as witnesses to Ms. Santiago's signature at the hospital on the three acknowledgment forms of January 28, 2008, March 6, 2008, and March 20, 2008, respectively. None of them had a current recollection of Ms. Santiago, either. However, they consistently testified that their usual procedure, in presenting the NICA brochure to an obstetrical patient and in securing that patient's signature on the acknowledgment form(s) at the hospital, was to explain orally that "all the physicians" or "all the doctors" at the hospital were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. Each witness testified that s/he had made no distinction, in any oral explanation to any patient, between "residents" and "resident physicians." None of these witnessing hospital employees had named any specific physicians associated with the hospital in speaking with any obstetrical patients.
Additional paperwork supports the January 28, 2008, acknowledgment form as being signed in the hospital, in that it shows that on January 29, 2008, Ms. Santiago underwent a procedure at the hospital. There is also testimony that suggests that one of the forms was associated with a pre- registration for delivery of Yandel.
Ms. Winkleblack is credible that the January 8, 2008, form had been signed at the Faculty Practice by Ms. Santiago and by Ms. Winkleblack on Ms. Santiago's first visit to the Faculty Practice. Additional paperwork supports this.
The foregoing clear, coherent, and consistent testimony of those who witnessed Ms. Santiago's signature(s), Ms. Santiago's identification of her own signature and other pertinent data on the acknowledgment forms, and Ms. Santiago's inconsistent and less than credible reasons why she would not have knowingly signed any acknowledgements after the first one, are persuasive that Ms. Santiago not only signed all the acknowledgment forms but that she signed them after she had the opportunity to read the NICA brochure and the opportunity to ask any questions she might have wished to ask, even if she did not actually utilize those opportunities.
Despite the foregoing, Petitioners submit that the notices herein were faulty because the acknowledgment forms utilized the term, "resident physicians," instead of the individual names of the 22-27 Faculty Practice physicians and the more than 100 physicians on staff at the hospital in the same period. Petitioners reason that, although Ms. Santiago signed acknowledgment forms at both the hospital and the Faculty Practice, the notices she received only used the term "resident physicians" and so did not apprise her that anyone except
residents at the Faculty Practice and the hospital were NICA participants.
To support their theory, Petitioners rely upon Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, supra, which held, in pertinent part, that:
. . . we find that both participating physicians and hospitals with a participating physician on staff are required to provide notice to obstetrical patients of their rights and limitations under the plan.. . .
* * *
Consequently, under our holding today, if either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimants can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA. (emphasis in original)
Petitioners also rely on Florida Administrative Code Rule 64B8-6.004, which provides:
64B8-6.004 Resident Physician and Assistant Resident Physician; Definition of.
A resident physician is one who has completed an internship and is engaged in a program of training designed to increase his knowledge of the clinical disciplines of medicine, surgery, or any of the other special fields which provide advanced training in preparation for the practice of
a specialty. In the first year following the internship, the person is usually referred to as an assistant resident physician. In the second year, he is usually referred to as a resident physician.
Even upon Petitioners' theory, it is abundantly clear that the hospital and Faculty Practice acknowledgment forms gave the notice required by section 766.316, covering the hospital and Faculty Practice residents and assistant residents, regardless of whether those types of residents were contemplated by section 766.314(4)(c). (See § 766.316 quoted at Finding of Fact 64).
On the other hand, given that none of the physicians who attended Ms. Santiago for labor, delivery, or the postdelivery resuscitative period were specifically named on the acknowledgment forms presented to her at the Faculty Practice and at the hospital, and given that none of the Intervenors or Dr. Amyradakis gave individual pre-delivery notice of their NICA participation to Ms. Santiago in connection with Yandel's gestation or birth, it is fairly debatable whether the Faculty Practice or Winnie Palmer Hospital for Women & Babies gave notice on behalf of any physician other than their residents and assistant residents.
In determining whether there was a lack of NICA notice by those other than Winnie Palmer Hospital for Women & Babies and its residents and assistant residents, and the Faculty
Practice's residents and assistant residents, the case of Jackson v. Florida Birth-Related Neurological Injury
Compensation Association, 932 So. 2d 1125 (Fla. 5th DCA 2006), has been considered. In that case, personnel taking the obstetrical patient's acknowledgment of NICA coverage on behalf of a professional association of obstetricians had represented that "all our doctors are NICA participants," and the court concluded that they had thereby given satisfactory notice on behalf of all members of the professional association of obstetricians.
The implications of Jackson, supra, have been carefully weighed and considered in light of the subsequent case of Florida Birth-Related Neurological Injury Compensation
Association v. Department of Administrative Hearings, supra, as well as in light of the "real world" consideration that most patients would not know or comprehend the Florida Administrative Code's legalistic definition of "resident," any more than the hospital and Faculty Practice employees who presented the NICA acknowledgment forms and brochure to Ms. Santiago comprehended that any distinction "at law" might exist between the terms "residents," "resident physicians," "physicians" and "doctors."
Herein, the hospital provided its notice, using the same NICA brochure and the same acknowledgment form that the Faculty Practice did. Each of them provided those notices at
their separate locations. Each form had the name "Orlando Regional Healthcare" at the top of the acknowledgment form. Each time Ms. Santiago signed one of the acknowledgment forms, she was told the equivalent of "all our doctors participate in NICA." Therefore, the record supports a finding that
Ms. Santiago received NICA notice covering both the physicians and the hospital and does not support a finding that
Ms. Santiago was misled with regard to NICA coverage.
Intervenors have borne their burden of proof to show that the obstetrical patient herein acknowledged receipt of the NICA notice and have thereby established the rebuttable presumption that the notice requirements of section 766.316 were met. Petitioners have not rebutted that presumption.
Accordingly, it is found that the NICA notice provided to Ms. Santiago was sufficient as to all hospital staff physicians and all physicians at the Faculty Practice.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. §§ 766.301-766.316, Fla. Stat.
Compensability
The Florida Birth-Related Neurological Injury Compensation Plan was established by the Legislature "for the
purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring after January 1, 1989. § 766.303(1), Fla. Stat.
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 the Division of Administrative Hearings. §§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. The Florida Birth- Related Neurological Injury Compensation Association, which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury."
§ 766.305(4), Fla. Stat.
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. If, on the other hand, NICA disputes the claim, or the claimants assert that the child's injury is not compensable, the dispute must be resolved by the assigned Administrative Law Judge in accordance with the provisions of chapter 120, Florida Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.
In discharging this responsibility, the Administrative Law Judge must make the following determinations based upon all available evidence:
Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.303(2).
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.
§ 766.309(1), Fla. Stat. An award may be sustained only if the Administrative Law Judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." § 766.31(1), Fla. Stat.
Pertinent to this case, "birth-related neurological injury" is defined by section 766.302(2), to mean:
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 an 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).
Here, Petitioners, who wish to pursue a circuit court action, took the position that the NICA claim was not compensable and declined to assert the presumption of compensability afforded only the Petitioners, as stated in section 766.309(1)(a). Therefore, the burden was upon Intervenors and Respondent to demonstrate that Yandel suffered a "birth-related neurological injury" without aid of the statutory presumption. § 766.309(1)(a), Fla. Stat. See also Balino v. Dep't of Health and Rehab. Servs., supra ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal."); and Bennett v. St. Vincent's Med. Ctr., supra.
Here, the proof failed to support the conclusion that, more likely than not, Yandel suffered an injury to the brain or spinal cord caused by mechanical injury 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. It is not enough that he be permanently and substantially mentally and physically impaired, which is conceded by all parties. A finding of compensability requires that the remainder of the statutory definition must be met, and it was not. Consequently, given the provisions of section 766.302(2), Florida Statutes, Yandel does not qualify for coverage under the Plan. See also §§ 766.309(1) and 766.31(1), Fla. Stat.; Humana of Fla., Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly constructed to include only those subjects clearly embraced within its terms."), approved, Fla. Birth-Related Neurological
Injury Comp. Ass'n v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996); Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass'n., 813 So.2d at 160 ("[T]he oxygen deprivation or mechanical injury must take place during labor, delivery, or immediately afterward.").
Notice
Apart from contesting compensability, Petitioners also sought the opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the health care providers. As the proponent of the immunity claim, the burden
rested on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied. See cases cited supra. Intervenors, who bore the burden to do so, established that appropriate pre-delivery notice was given on behalf of the hospital, its residents, the Intervenors, and all members of the Faculty Practice.
Where, as here, the Administrative Law Judge determines that ". . . the injury alleged is not a birth-related neurological injury . . . she or he [is required to ] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." § 766.309(2), Fla. Stat. Such an order constitutes final agency action subject to appellate court review. § 766.311(1),
Fla. Stat.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that the second amended petition filed by Yolanda Santiago and Wilfredo Torres, individually and as parents and natural guardians of Yandel Torres-Santiago, a minor, is dismissed with prejudice.
DONE AND ORDERED this 10th day of November, 2011, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 10th day of November, 2011.
ENDNOTES
1/ The petition and all amended petitions were filed "under protest" for the reasons set out therein, including but not limited to an assertion of statutory unconstitutionality and an assertion that Petitioners are not seeking compensation under the NICA Plan, but are instead seeking to establish the right to sue in circuit court the obstetricians and neonatologists who attended the infant, Yandel. The Administrative Law Judge is without power, authority, or jurisdiction to hold a statute unconstitutional. Fla. Hosp. v. Agency for Health Care Admin., 823 So. 2d 844, 849 (Fla. 1st DCA 2002). Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249 (Fla. 1987)(An administrative agency has no power to declare a statute void or otherwise unenforceable.).
2/ Petitioners filed a third petition on October 29, 2010, but it was withdrawn as of November 9, 2010. Accordingly, this claim proceeded to final hearing upon Petitioners' Second Amended Petition.
3/ ALJ Exhibit 1 is Petitioners' Prehearing Statement. ALJ Exhibit 2 is Respondent's/Intervenors' Prehearing Statement. They are not identical in their factual stipulations, and were orally modified at hearing as related herein.
Petitioners' Exhibits admitted in evidence are: Petitioners' P- A medical records of Yolanda Santiago and Yandel Torres-Santiago (Bates stamped 1-1727). P-B is the petition under protest. P-C is the amended petition under protest. Petitioners' P-D is the second amended petition under protest. P-E is the third amended petition under protest. P-F is Petitioners' notice of withdrawal of third amended petition under protest. P-G is Respondent's response to Intervenors' request for admissions.
P-H is Intervenors' response to Petitioners' request to produce. P-I is Intervenors' notice of serving answers to Petitioners' expert interrogatories. P-J is Petitioners' answers to Intervenors' expert interrogatories. P-K is Intervenors' response to Petitioners' request to produce. P-L is Petitioners' disclosure of expert witnesses. P-M is Respondent's response to Intervenors' (second) request for admissions. (All items to this point appear on DOAH's electronic docket; are procedural; and are superfluous to any factual issues. However, they were not objected-to and accordingly were admitted.)
P-N is the deposition transcript of Yolanda Santiago. P-O is the deposition transcript of Wilfredo Torres. P-P is the deposition transcript of Martha Kuffski, M.D. P-Q is the deposition transcript of Jeannie McWhorter, M.D. P-R is the deposition transcript of Amanpreet S. Bhuller, M.D. P-S is the deposition transcript of Norman Lamberty, M.D. P-T is the deposition transcript of Penny Danna, M.D. There is no Exhibit P-U/ (see TR 18-21). P-V is the deposition transcript of Donald Willis, M.D., Part One. P-W is the deposition transcript of Donald Willis, M.D., Part Two. P-X is the report of Donald Willis, M.D. P-Y is the deposition transcript of Michael S. Duchowny, M.D. P-Z is the report of Michael S. Duchowny, M.D.
P-AA is the deposition transcript of Claudio Sandoval, M.D. (By agreement a substitute translation of one page of this deposition was substituted). P-BB is the deposition transcript of Robert DiGeronimo, M.D. (There is no Exhibit P-CC; see TR 21).
P-DD is the deposition transcript of Kathy Winkleblack, RN. P- EE is the deposition transcript of Kyle Monroe. P-FF is the deposition transcript of Francessca Torres. P-GG is the deposition transcript of Charlotte Wray. The parties stipulated to use the foregoing numbering system although exhibits P-DD, P- EE, P-FF, and P-GG, were intended for use by the Intervenors, who subsequently filed true copies. When notified by the undersigned ALJ's letter, dated September 19, 2011, that the
exhibits named in Exhibits P-DD, P-EE, P-FF, and P-GG were not attached to those depositions, the appropriate deposition exhibits were transmitted to the undersigned.
Respondent's and Intervenors' Joint Exhibit 1: the records of Yolanda Santiago from Winnie Palmer Hospital for dates of admission 7/17/08-7/21/08. Joint Exhibit 2: the records of Yolanda Santiago from Winnie Palmer Hospital for date of admission 7/15/08. Joint Exhibit 3: the records of
Yolanda Santiago from Winnie Palmer Hospital for date of admission 3/20/08. Joint Exhibit 4: the records of Yolanda Santiago from Winnie Palmer Hospital for date of admission 3/6/08. Joint Exhibit 5: the records of Yolanda Santiago from Winnie Palmer Hospital for dates of admission
1/28/08. Joint Exhibit 6: the records of Yolanda Santiago from Winnie Palmer Hospital for date of admission 12/12/07. Joint Exhibit 7: the records of Yolanda Santiago from Winnie Palmer Hospital OB/GYN Faculty Practice. Joint Exhibit 8: the records of Yandel Torres-Santiago from Winnie Palmer Hospital for dates of admission 7/19/08-8/22/08. Joint Exhibit 9: the NICA brochure. (See TR 24-25). Joint Exhibit 10: the NICA Notice Acknowledgment Forms signed by Yolanda Santiago dated 12/12/07, 1/8/08, 1/28/08, 3/6/08, and 3/20/08. Joint Exhibit 11: the deposition transcript of Wilfredo Torres with exhibits. Joint Exhibit 12: the deposition transcript of Yolanda Santiago with exhibits. Joint Exhibit 13: the deposition transcript of Donald Willis, M.D. with any exhibits. Joint Exhibit 14: the deposition transcript of Michael Duchowny, M.D., with any exhibits. Joint Exhibit 15: the deposition transcript of Claudio Sandoval, M.D., with any exhibits. (Corresponds to P- AA, including a substituted interpreter's page). Joint Exhibit 16: the deposition transcript of Robert DiGeronimo, M.D., with any exhibits. Joint Exhibit 17: the deposition transcript of Martha Kuffski, M.D., with any exhibits. Joint Exhibit 18: the deposition transcript of Jeannie McWhorter, M.D., with any exhibits. Joint Exhibit 19: the deposition transcript of Amanpreet Bhuller, M.D., with any exhibits. Joint Exhibit 20: the deposition transcript of Norman Lamberty, M.D., with any exhibits. Joint Exhibit 21: the deposition transcript of
Penny Danna, M.D., with any exhibits. Joint Exhibit 22: the report from Donald Willis, M.D., dated August 20, 2010. Joint Exhibit 23: the report from Michael Duchowny, M.D., dated March 29, 2010.
Note: some deposition copies did not contain the exhibits named therein but the exhibits were attached to duplicate exhibits provided by another party and have been reviewed in that manner.
Although Petitioners' counsel refers at TR-88 to an Exhibit 690, there is no such numbered exhibit admitted in evidence. It is probable that counsel was referring to Bates stamped page 690.
4/ See description of Exhibits P-DD, P-EE, P-FF, and P-GG, at n.3.
5/ Respondent and Intervenors declined to stipulate that Wilfredo Torres is Yandel's father. (TR 14-15). However, Mr. and Mrs. Torres were married at the time of Yandel's conception, so Florida law presumes Mr. Torres' paternity.
6/ Petitioners' unilateral Prehearing Statement and Respondent's and Intervenors' Joint Prehearing Statement do not "match" on this issue. However, this finding of fact employs the language "stipulated" by Respondent and Intervenors in their Joint Prehearing Statement, which language was also asserted as true and correct by Petitioners in their Proposed Final Order and the facts of which were otherwise proven.
7/ The parties' respective prehearing statements do not "match" on this issue, although Petitioners stipulated that George Amyradikis provided obstetric services at birth, with Norman Lamberty as attending physician. In their proposed final order, Petitioners claimed, on the basis of an NICU admission record, that Lori Lambert, M.D., delivered Yandel. (Lori Lambert, M.D., and George Amyradakis have never been named in a petition or served with a petition in this case, nor have they intervened.) Also, upon Petitioners' motion and without objection, the undersigned took official recognition that Dr. Norman Lamberty's name appears on Yandel's birth certificate as having delivered Yandel. (TR-129-130). Finally, Dr. Norman Lamberty testified credibly that he was the attending physician at Yandel's birth and that a resident delivered Yandel. It is hospital policy for the attending physician to sign-off on birth certificates.
Residents' NICA participation is paid by the hospital or parent company.
8/ An Apgar score is a numerical expression of the condition of a newborn infant, usually determined at 60 seconds after birth, being the sum of points gained on assessment of the heart rate, respiratory effort, muscle tone, reflex irritability, and color. Dorland's Illustrated Medical Dictionary, page 1497 (28th ed.
1994).
9/ "Pre-eclampsia" is a complication of pregnancy characterized by hypertension, edema, and/or proteinuria; when convulsions and coma are associated, it is called eclampsia. Dorland's Illustrated Medical Dictionary, page 1346 (28th ed. 1994).
10/ "Fontenelle," also spelled "fontanel" is a softspot, such as one of the membrane-covered spaces (fonticuli crania [NA]) remaining in the incompletely ossified skull of a fetus or infant. Dorland's Illustrated Medical Dictionary, page 647 (28th ed. 1994).
11/ Section 766.302(2) specifically excludes from NICA compensability any "congenital abnormality."
12/ In Bennett v. St. Vincent's Med. Ctr., supra, the Florida Supreme Court commented,
We hold that a narrow construction of the statute is the more reasonable interpretation. First, it restricts the impact of the statute to those situations involving obstetricians, who are the group of physicians that the NICA Plan was designed to benefit. Otherwise, as NICA points out in its brief, under the First District's interpretation, the statute would be expanded to cover situations where an infant is "transferred from the delivery room" and the "obstetrician relinquishes responsibility of the infant to other health care providers."
13/ In Bennett v. St. Vincent's Med. Ctr., supra, the Florida Supreme Court held:
Accordingly, we hold that in order for a "birth-related neurological injury" to occur, the injury to the brain caused by oxygen deprivation, which renders the infant permanently and substantially impaired, must occur during labor, delivery or resuscitation in the immediate postdelivery period. That period does not encompass an additional "extended period of time when a baby is delivered in a life-threatening condition" unless there are on-going and continuous efforts of resuscitation. Both
the incident of oxygen deprivation and the brain injury resulting from oxygen deprivation must occur in this time period. (emphasis added).
14/ Petitioners proposed a finding that Dr. Norman Lamberty attended Ms. Santiago at the Faculty Practice for her pregnancy with Yandel, but the records cited actually show Dr. Lamberty only as providing a Pap test in 2007, pre-pregnancy.
Ms. Santiago's testimony on whether she saw him for her pregnancy with Yandel at the Faculty Group Practice prior to July 17, 2008, is unclear and unpersuasive, but she testified clearly that she saw him before she was pregnant with Yandel.
15/ Ms. Santiago testified she saw Dr. Lamberty in the hospital during her labor with Yandel (July 17-19, 2008) before delivering the baby. Dr. Lamberty testified that he did not see her in the hospital until he entered the delivery room on
July 19, 2008, for Yandel's delivery by a resident. (See Finding of Fact 17).
COPIES FURNISHED:
(Via Certified Mail)
Kenney Shipley, Executive Director Florida Birth Related Neurological
Injury Compensation Association 2360 Christopher Place, Suite 1
Tallahassee, Florida 32308
(Certified Mail No. 7010 3090 0000 0717 1727)
Maria D. Tejedor, Esquire
Diez-Arguelles and Tejedor, P.A.
505 North Mills Avenue Orlando, Florida 32803
(Certified Mail No. 7010 3090 0000 0717 1734)
Jeffrey P. Brock, Esquire
Smith, Hood, Perkins, Loucks, Stout, Bigman, & Brock P.A.
444 Seabreeze Boulevard, Suite 900 Daytona Beach, Florida 32118
(Certified Mail No. 7010 3090 0000 0717 1741)
Bradley Paul Blystone, Esquire
Marshall, Dennehey, Warner, Coleman & Goggin
315 East Robinson Street, Suite 550 Orlando, Florida 32801
(Certified Mail No. 7010 3090 0000 0717 1758)
Amie Rice, Investigation Manager Consumer Services Unit Department of Health
4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275
(Certified Mail No. 7010 3090 0000 0717 1765)
Elizabeth Dudek, Secretary Health Quality Assurance
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
(Certified Mail No. 7010 3090 0000 0717 1772)
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this Final Order is entitled to judicial review pursuant to sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See § 766.311, Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v.
Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 14, 2013 | Mandate | |
| Nov. 10, 2011 | DOAH Final Order | Petitioners did not invoke statutory presumption of compensability; compensability not found on facts involving alloimmune thrombocytopenia and timing of injury; diverse notice issues addressed. |
