STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JACKSON JOSEPH FISCHLER, a minor )
child, by and through KENNETH J. ) FISCHLER and LAURA P. FISCHLER, )
as parents and legal guardians, ) and KENNETH J. FISCHLER and LAURA )
FISCHLER, individually, )
)
Petitioners, )
)
vs. ) CASE NO. 94-2299N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
)
FINAL ORDER
On October 9, 1995, the Division of Administrative Hearings, by and through its duly designated Hearing Officer, William J. Kendrick, held a telephone conference in the above-styled case.
At such time, the parties stipulated to certain factual matters, discussed more fully in the preliminary statement which follows, and agreed to submit this case for resolution on a stipulated record.
APPEARANCES
For Petitioner: C. Rufus Pennington, III, Esquire
Margol & Pennington, P.A.
One Independent Drive, Suite 1700 Jacksonville, Florida 32202
For Respondent: W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM
300 East Park Avenue Tallahassee, Florida 32301
STATEMENT OF THE ISSUE
At issue is whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the hospital.
PRELIMINARY STATEMENT
On April 28, 1994, Kenneth J. Fischler and Laura P. Fischler, as parents and natural guardians of Jackson Joseph Fischler, a minor, and Kenneth J. Fischler and Laura P. Fischler, individually, filed a claim with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on April 29, 1994. NICA reviewed the claim and on July 10, 1995, gave notice that it had "determined that such claim is not a 'birth related neurological injury' within the meaning of Section 766.302(2), [Florida Statutes] (1991), because the physician delivering obstetrical services is not a 'participating physician' within the meaning of Section 766.302, Florida Statutes," and requested that the Hearing Officer "enter an order setting a hearing in this cause on the issue of the compensability of this claim."
On August 8, 1995, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on October 5, 1995, to address the issue of "[w]hether obstetrical services were delivered by a participating physician in the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital." Such hearing was subsequently cancelled due to the anticipated arrival of Hurricane Opal, and on October 9, 1995, a telephone hearing was held to address the need to reschedule the hearing. At that time, the parties agreed to submit the case for resolution upon an agreed record.
The record agreed to by the parties during the course of the telephone conference consisted of the parties stipulation to the ultimate facts set forth in findings of fact 1 and 2 which follow, as well as the medical records which accompanied the claim for compensation, the deposition of Charles Kalstone, M.D., to be filed post-hearing (filed October 25, 1995), and the parties' written stipulation, with attached medical records, to be filed post-hearing (filed October 25, 1995). The parties further stipulated that if they were to proceed to hearing they would offer no other proof.
The parties were accorded leave until October 23, 1995, to serve proposed final orders. Petitioners elected to submit such a proposal, and the proposed findings of fact contained therein are addressed in the appendix to this final order.
FINDINGS OF FACT
Fundamental findings
Jackson Joseph Fischler (Jackson) is the legally adopted son of Kenneth J. and Laura P. Fischler. He was born a live infant on June 1, 1992, at Memorial Hospital West, a hospital located in Pembroke Pines, Florida, and his birth weight was in excess of 2,500 grams.
During the course of labor, delivery or resuscitation in the immediate post-delivery period in the hospital, Jackson sustained an injury to the brain or spinal cord caused by oxygen deprivation and/or mechanical injury which rendered him permanently and substantially mentally and physically impaired.
As a consequence of the foregoing, the sole issue to be resolved in deciding whether this claim should be accepted for compensation is whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, as required by Subsections 766.309(1)(b) and 766.31(1), Florida Statutes.
The birth of Jackson Joseph Fischler
At or about 7:09 p.m., June 1, 1992, the Pembroke Pines Fire Department, Emergency Medical Services (EMS), arrived at the residence of Shirley George, Jackson's birth mother, in response to a 911 call. At the time, Ms. George reported that she was at term, with a caesarean section scheduled 5 days hence for a breach presentation and that her "water may have broken." Subsequent medical records reflect a spontaneous rupture of the membrane at 7:00 p.m. When examined by EMS, Ms. George was experiencing contractions approximately 2 minutes apart, lasting 30-40 seconds.
EMS transported Ms. George to Memorial Hospital West, where she was admitted through the emergency room at approximately 7:15 p.m., in labor. Ms. George was then taken to an examination room, and the labor and delivery unit was requested to provide a nurse to examine her.
At or about 7:17 p.m., a labor and delivery nurse performed a pelvic examination of Ms. George and immediately diagnosed a prolapse of the umbilical cord, and a fetal heart rate of approximately 60 beats per minute. A prolapsed umbilical cord is a obstetrical emergency, which in the instant case required prompt surgical intervention to address fetal distress. Consequently, Ms. George was immediately rushed to the operating room for an emergency caesarean section.
At the time, the on-call obstetrician, Robert Klein, M.D., was at Hollywood Memorial East, where he had been called for surgery. Therefore, shortly after 7:17 p.m., Dr. Klein was advised by telephone of the emergency involving Ms. George, and was requested to come to Memorial Hospital to attend to the situtation. Consequently, according to Dr. Klein, he "unscrubbed the patient of mine at Hollywood Memorial East . . . and in my greens I drove to Memorial Hospital West."
Following notice to Dr. Klein and prior to his arrival at Memorial Hospital West, an overhead page was made for any obstetrician or surgeon in house to call the operating room, and 2-3 minutes later a blue alert to the operating room was called.
The emergency room physician responded to the blue alert. Upon arrival in the operating room, he was apparently advised that the fetal heart rate was in the 40 beat per minute range and was asked if he could perform a caesarean section. The emergency room physician, not being qualified to perform the operation, declined, and Rudy Zepeda, M.D., the house physician, who was also present, agreed to perform the caesarean section "to save the baby's life."
At this point in the factual narrative it is worth observing, considering the central issue in this case, that Dr. Zepeda, an unlicensed house physician, was not, at anytime material to this case, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Conversely, Dr. Klein, the on-call obstetrician, albeit not in attendance at the time, was a "participating physician" in the Plan.
In the operating room, Ms. George was on the table at 7:23 p.m., anesthesia was started at 7:25 p.m., and Dr. Zepeda commenced the operation at 7:38 p.m. Jackson was delivered at 7:48 p.m., and the placenta at 7:49 p.m.
Upon delivery, Dr. Zepeda handed Jackson to Dr. McIntyre, the on-call neonatologist, and he was immediately intubated and bagged with 100 percent oxygen, with good response in heart rate and color only, and first gasp was noted at 7 minutes. Apgar scores were 2 at one minute, 3 at 5 minutes, and
4 at 10 minutes, and at or about 8:00 p.m. Jackson was transferred to the neonatal intensive care unit (ICU) with positive ventilator support.
Following Dr. Zepeda's delivery of Jackson and the placenta, but before Jackson's transfer to the neonatal ICU, Dr. Klein entered the operating room. Observing the situation, Dr.
Klein reportedly asked Dr. Zepeda to finish the case on his own, but Dr. Zepeda "told him to scrub in."
Dr. Klein was noted to have entered the operative field at 7:55 p.m., at which time he observed "the uterus was closed in the first layer," which would be the first step in the procedure after delivery of the placenta, and he proceeded to complete the operation. According to his operative report, Dr. Klein provided, inter alia, the following services incident to the caesarean section:
. . . UPON ENTERING THE OPERATIVE FIELD THE
UTERUS WAS [observed to have been] CLOSED IN THE FIRST LAYER AND I USED NUMBER 0 CHROMIC TO CLOSE THE SECOND LAYER. IT WAS VERY DIFFICULT TO FIND THE BLADDER FLAP WHICH WAS NOT CREATED UPON ENTRY TO THE UTERUS. TWO
VIALS OF METHYLENE BLUE WERE INJECTED INTRAVENOUS BY THE ANESTHESIOLOGIST. APPROXIMATELY TEN MINUTES LATER METHYLENE BLUE DYE WAS NOTED
IN THE FOLEY BAG.
UPON CLOSURE OF THE UTERUS THE OVARIES AND TUBES WERE FOUND TO BE WITHIN NORMAL LIMITS. THE PERITONEUM WAS NOT CLOSED BUT APPROXIMATED.
THE MUSCLE WAS CLOSED IN THREE SEGMENTS CREATING NORMAL LOOKING MUSCLE, APPROXIMATING LONGITUDINAL AND VERTICAL INCISION OF THE MUSCLE WHICH WAS DONE UNDER EMERGENCY CONDITIONS BY THE SURGICAL RESIDENT.
THERE WAS MODERATE AMOUNT OF BLEEDING, HOWEVER, THIS WAS CONTROLLED WITH THE BOVIE AND THREE PIECES OF SURGICEL WERE PLACED OVER THE MUSCLE ABOVE THE FASCIA. THE FASCIA THEN WAS CLOSED WITH
NUMBER 0 VICRYL IN A CONTINUOUS INTERLOCKING FASHION IN TWO SEGMENTS.
SUBCUTANEOUS TISSUE WAS IRRIGATED. HEMODYNAMICALLY THE PATIENT WAS UNDER GOOD CONTROL AND THERE WAS NO EVIDENCE OF LOW PRESSURE DURING THE SURGERY. SHE WAS GIVEN FLUIDS AND PITOCIN 20 UNITS AND FULL LITER OF HALF NORMAL SALINE. SHE WAS ALSO GIVEN TWO GRAMS OF MEFOXIN BY THE ANESTHESIOLOGIST
THE SKIN WAS APPROXIMATED AND CLOSED WITH STAPLES. COVERED WITH TELFA, 4X4, STERILE TAPE. THE URINE OUTPUT WAS ADEQUATE MIXED WITH METHYLENE BLUE. ROUTINE POSTOP ORDERS WERE WRITTEN IN THE CHART.
The services Dr. Klein provided Ms. George, albeit post-delivery, were an integral part of the caesarean section
delivery procedure, and were unquestionably obstetrical services. 1/ Moreover, such services were provided, at least in part, while Jackson was being resuscitated in the immediate post- delivery period. 2/
16 As heretofore noted, Jackson was transferred to the neonatal ICU, with positive ventilator support, at or about 8:00
p.m. Upon arrival in the ICU, Jackson was placed on a respirator ("Baby Bird" mechanical ventilator support), with initial settings being an IMV of 50, pressure of 22/4 and 100 percent oxygen. Jackson's first movement, which consisted of some flexion of the extremities, was noted at or about 30 minutes of life, and there was some associated twitching of the lower jaw, which was thought to represent seizure activity.
At or about 10:30 p.m., June 1, 1992, Jackson was discharged from Memorial Hospital West and transported to the neonatal ICU at Hollywood Memorial East. At the time he was on stable ventilator settings, and his seizures were under control with phenobarbital. Diagnosis on discharge was perinatal asphyxia secondary to prolapsed cord, and seizure disorder.
Jackson remained at Memorial Hospital until discharged on June 23, 1992. At the time, examination revealed "slight increased tone, intermittent arching of back and retracting of head, cortical thumbs bilaterally with excessive fisting, brisk DTR's bilaterally, moro present, . . . and oral thrush." An MRI of June 6, 1992, "showed abnormal brain signal in each parietal lobe and decreased white matter signal in the basal gaglion, brain stem, mid brain and cerebellar hemispheres, possible watershed ischemia." Following maturation, neurologic examination revealed evidence of four limb spasticity with double hemiparesis, marked expressive language and motor delay. Severe swallowing and sucking difficulties necessitated gastrostomy placement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes (1993).
The Florida Birth-Related Neurological Injury Compensation Plan (the "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 on or after January 1, 1989. Section 766.303(1), Florida Statutes.
The injured "infant, 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 within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1) and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (NICA), 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 to submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury." Section 766.305(3), Florida Statutes.
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 Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.
In discharging this responsibility, the Hearing Officer must make the following determination based upon the available evidence:
Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the hearing officer, 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 post- delivery 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 post-delivery period in a hospital.
Section 766.309(1), Florida Statutes. An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.
Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:
. . . injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical
injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall
apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.
Here, consistent with the parties' stipulation, the proof demonstrates that Jackson was born a live infant, that his birth weight was in excess of 2,500 grams, and that he suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, which rendered him permanently and substantially mentally and physically impaired. Consequently, it has been established that Jackson suffered a "birth-related neurological injury," as defined by law, and the sole issue remaining for resolution is "[w]hether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period" in the hospital, as required by Subsection 766.309(1)(b), Florida Statutes.
Given the uncontroverted proof that Dr. Klein, a participating physician, rendered obstetrical services during the course of Jackson's resuscitation in the immediate post-delivery period, one would expect the resolution of this dispute to be apparent. The parties are, however, in disagreement as to how subsection 766.309(1)(b) is to be interpreted.
Regarding the dispute, it was NICA's position, as stated in its notice of noncompensability, that:
. . . the physician who delivered Jackson Joseph Fischler was not a participating physician, however, a participating physician
[Dr. Klein] did arrive after delivery of the child by caeserean section and closed the mother's surgical wound. The respondent believes that the delivery of this isolated service to . . . [the mother] . . . after the delivery of the infant does not constitute the provision of obstetrical services during the course of labor or delivery within the meaning
of Section 766.309(1)(b), Florida Statutes. . . .
Stated differently, the issue is whether the provision of obstetrical services by a participating physician during the course of the infant's resuscitation in the immediate post- delivery period, but not during labor and delivery, satisfies the requirements of subsection 766.309(1)(b) for coverage under the Plan.
Here, as contended by NICA, the proof clearly demonstrates that obstetrical services were not rendered by a participating physician during the course of labor or delivery; however, NICA overlooks that the provisions of subsection 766.309(1)(b) are written in the disjunctive, and accord coverage where the "obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period." 3/
It is axiomatic that the Legislature is presumed to have a working knowledge of the English language, and that it knows the ordinary rules of grammar and the meaning of words. Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla. 1958). In its elementary sense, the work "or," as used in a statute, is a disjunctive article indicating an alternative. Consequently, when used in a statute the word "or" is generally to be construed in the disjunctive. Sparkman v. McClure, 498 So.2d 892 (Fla. 1986). There are, however, instances in which the conjunction "or" is held equivalent in meaning to the conjunction "and," and such meaning may be given to effectuate the intention of the legislature where it is clear that the word is used in a copulative and not in a disjunctive sense. See, Byte International Corp. v. Maurice Gusman Residuary Trust Number 1, 629 So.2d 191 (Fla. 3d DCA 1993). Indeed, "[i]t is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided [in construing enactments of the legislature]." State v. Webb, 398 So.2d 820, 824 (Fla. 1981).
Here, it is observed that the language of section 766.309(1) is so plain and unambiguous as to fix the legislative intent, since it is apparent the Legislature's choice of the word "or" was plainly meant to be applied in the disjunctive sense.
Consequently, the only proper function of the Hearing Officer is to effectuate this legislative intent. Florida State Racing Commission v. McLauglin, supra.
In reaching the foregoing conclusion, it is observed that section 766.309(1) requires that the Hearing Officer make only two determinations, based upon the available evidence, to resolve whether a claim is compensable under the Plan. First, "[w]hether the injury claimed is a birth-related neurological injury." Second, "[w]hether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period."
Resolution of the first inquiry, whether the injury claimed is a "birth-related neurological injury," is directed toward a consideration of the infant's insult, and if, pertinent to this case, the brain injury was occasioned by oxygen deprivation "occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," then the injury is deemed a "birth-related neurological injury." Resolution of the second inquiry, is directed toward the provision of obstetrical services to the mother and, again, if "obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period," the "birth-related neurological injury" suffered by the infant is compensable under the Plan.
Notably, each area of inquiry is independent of the other, and the Hearing Officer is not called upon to resolve at what point during "labor, delivery or resuscitation in the immediate post-delivery period" the infant was injured, nor whether the provision of obstetrical services coincided with the stage at which the infant was injured. Such directive is consistent with the express legislative intent in enacting the Plan "to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries." Section 766.301(2), Florida Statutes. It is further consistent with the fundamental purpose of the Plan to "provide a system in which liability is limited and determinative and the remedy is expeditious and independent of proof of fault." Humana of Florida, Inc. v. McKaughn, 20 Fla.
L. Weekly D565, D567 (Fla. 2nd DCA 1995).
Consequently, it is concluded that Dr. Klein, a "participating physician," by rendering obstetrical services to the mother while Jackson was being resuscitated in the immediate post delivery period, delivered obstetrical services "in the course of labor, delivery or resuscitation in the immediate post delivery period" as required by subsection 766.309 for coverage under the Plan. In so concluding, it has not been overlooked that Dr. Klein did not participate in the labor or delivery
itself, and did not personally resuscitate the child. Such circumstance is not, however, unusual. Indeed, as observed by Dr. Kalstone in his deposition, at page 23, "[o]bstetricians don't take care of newborns, even when they are well, [l]et alone when they have a low Apgar, and [here the neonatologist was present]." The prevalence of such practice was certainly not lost on the Legislature since, at Section 766.303(2) it provided that the rights and remedies granted by the Plan were exclusive, and that they:
. . . exclude all other rights and remedies of such infant, his personal representative,
parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury. . . . [Emphasis added.]
Consequently, when Dr. Klein, a "participating physician," elected to perform obstetrical services while the child was being resuscitated, he, as the attending obstetric physician, the child and other persons involved with the birth were entitled to the protections and benefits of the Plan.
Where, as here, the Hearing Officer determines that "the infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth," the Hearing Officer is required to make a determination as to "how much compensation, if any, is to awardable pursuant to s. 766.31." Section 766.309(1)(c) and 766.31(1), Florida Statutes. In this case, the issues of compensability and the amount of compensation to be awarded were bifurcated. Accordingly, absent agreement by the parties, a further hearing will be necessary to resolve any existent disputes regarding "actual expenses," the amount and manner of payment of "an award to the parents or natural guardians," and the "reasonable expenses incurred in connection with the filing of the claim." Section 766.31(1), Florida Statutes.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that:
The petition for compensation filed by Kenneth J. Fischler and Laura P. Fischler, as parents and natural guardians
of Jackson Joseph Fischler, a minor, and Kenneth J. Fischler and Laura P. Fischler, individually, be and the same is hereby granted.
NICA shall make immediate payment of all actual expenses, as defined by Section 766.31(1)(a), Florida Statutes, previously incurred and shall make payment for future expenses as incurred.
Jurisdiction is hereby reserved to enforce this award and to resolve any disputes that may arise concerning the compensability of any previously incurred or future "actual expenses," and to establish the amount and manner of payment of "an award" to the parents, and the "reasonable expenses incurred in connection with the filing of the claim."
The parties are accorded thirty (30) days from the date of this order to resolve, subject to the approval of the Hearing Officer, any dispute they may have regarding the compensability of any previously incurred "actual expenses," the amount and manner of payment of "an award" to the parents, and the "reasonable expenses incurred in connection with the filing of the claim." If not resolved within such period, the parties shall so advise the Hearing Officer, and a hearing will be scheduled to resolve such issues.
DONE AND ORDERED this 9th day of November 1995 in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 9th day of November 1995.
ENDNOTES
1/ "Obstetrics" is defined by the American Heritage Dictionary of the English Language, New College Edition, as "[t]he branch of medicine concerned with the care of women during pregnancy, childbirth, and the recuperative period following delivery." Accord, Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition, and deposition testimony of Dr. Kalstone. Here, the Legislature focused on the rendition of obstetrical services during childbirth, which it chose to define as "labor, delivery, or resuscitation in the immediate post-delivery period."
2/ On November 3, 1995, a telephone conference was held regarding the timing of Dr. Klein's services. At that time, consistent with the medical records, the parties agreed that Dr. Klein had rendered obstetrical services while Jackson was being resuscitated in the immediate post delivery period.
3/ That the obstetrical services rendered by the participating physician were subsequent to delivery of the infant cannot seriously be questioned. "Delivery" is defined by the American Heritage Dictionary of the English Language, New College Edition, as "[t]he act of giving birth; parturition," and "parturition" is defined as [t]he act of giving birth; childbirth." Moreover, Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition, defines "delivery" as the "expulsion or extraction of the child and the afterbirth." See also, deposition testimony of Dr.
Kalstone, at page 9. Clearly, within the contemplation of subsection 766.309(1)(b), there is a phasing and timing distinction between "delivery," the expulsion or extraction of the infant from the mother, and "resuscitation in the immediate postdelivery period." Consequently, the time during which the participating physician in this case rendered obstetrical services was clearly postdelivery.
APPENDIX
Petitioners' proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraphs 4 and 5.
Addressed in paragraphs 7, otherwise rejected as contrary to the facts as found.
Addressed in paragraphs 5 and 6.
5 & 6. Addressed in paragraphs 8 and 9.
7. Addressed in paragraph 11.
8-10. Addressed in paragraphs 13 through 15.
11. Addressed in paragraphs 12 and 16.
12 & 13. Addressed in paragraph 14, otherwise subordinate or unnecessary detail.
14 & 15. Addressed in paragraph 10.
Rejected as contrary to the facts as found; however, Dr. Klein did render obstetrical services to Ms. George while Jackson was being resuscitated in the immediate post-delivery period. See paragraphs 11 and 14.
Addressed in paragraph 2.
COPIES FURNISHED:
C. Rufus Pennington, III, Esquire Margol & Pennington, P.A.
One Independent Drive, Suite 1700 Jacksonville, Florida 32202
W. Douglas Moody, Jr., Esquire BATEMAN GRAHAM
300 East Park Avenue Tallahassee, Florida 32301
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567
Robert Klein, M.D.
10067 Pines Boulevard No. B Pembroke Pines, Florida 33014-6136
Memorial Hospital West Legal Department
703 North Flamingo Road Pembroke Pines, Florida 33028
Rudy Zepeda, M.D.
c/o Memorial Hospital West 703 North Flamingo Road
Pembroke Pines, Florida 33028
Ms. Tanya Williams
Agency for Health Care Administration Division of Health Quality Assurance Hospital Section
2727 Mahan Drive
Tallahassee, Florida 32308 Ms. Charlene Willoughby
Department of Business and Professional Regulation
Consumer Services
1940 North Monroe Street Tallahassee, Florida 32399-0784
Dan Sumner, General Counsel Department of Insurance
The Capitol, PL-11
Tallahassee, Florida 32399-0300
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 one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association 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 |
|---|---|---|
| Nov. 09, 1995 | DOAH Final Order | Obstetrical services while infant was being resuscitated satisfied require- ment for coverage even tho physician did not participate in labor/delivery. |
