STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
GLORIA NIEVES and OSCAR NIEVES, )
as parents and natural ) guardians of DIEGO NIEVES, a ) minor, )
)
Petitioners, )
)
vs. )
)
FLORIDA BIRTH-RELATED )
NEUROLOGICAL INJURY )
COMPENSATION ASSOCIATION, )
)
Respondent, )
)
and )
)
ADVENTIST HEALTH ) SYSTEM/SUNBELT, INC., d/b/a ) FLORIDA HOSPITAL-ALTAMONTE and ) JUAN RAVELO, M.D., )
)
Intervenors. )
Case No. 01-4350N
)
ORDER ON COMPENSABILITY AND NOTICE
Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on July 23, 2002, by video teleconference, with sites in Tallahassee and Orlando, Florida, to address the issues of compensability and notice.
APPEARANCES
For Petitioners: Ronald S. Gilbert, Esquire
Morgan, Colling & Gilbert, P.A.
20 North Orange Avenue, Suite 1600 Post Office Box 4979
Orlando, Florida 32802-4979
For Respondent: Ronald A. Labasky, Esquire
Ronald A. Labasky, P.A.
318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302
For Intervenor Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital-Altamonte:
Robert A. Hannah, Esquire Hannah, Estes & Ingram, P.A.
37 North Orange Avenue, Suite 300 Post Office Box 4974
Orlando, Florida 32802-4974
For Intervenor Juan Ravelo, M.D.:
Thomas E. Dukes, III, Esquire McEwan, Martinez & Dukes, P.A.
108 East Central Boulevard Post Office Box 753
Orlando, Florida 32802-0753
STATEMENT OF THE ISSUES
At issue is whether Diego Nieves, a minor, qualifies for coverage under the Florida Birth-Related Neurological Compensation Plan (Plan).
If so, whether the notice provisions of the Plan were satisfied.
PRELIMINARY STATEMENT
On November 6, 2001, Petitioners, Gloria Nieves and Oscar Nieves, as parents and natural guardians of Diego Nieves
(Diego), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan. Thereafter, Petitioners were accorded leave to file an amended petition.
Pertinent to this case, the amended petition averred that Diego had suffered a "birth-related neurological injury," but sought to avoid any claim of Plan immunity by contending that the health care providers (the participating physician and hospital) failed to comply with the notice provisions of the Plan.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on November 8, 2001, and on March 21, 2002, NICA filed its Response to Petition for Benefits and agreed the claim was compensable.
In the interim, Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital-Altamonte, and Juan Ravelo, M.D., were accorded leave to intervene.
Given the pleadings, an evidentiary hearing was noticed for, and held on, July 23, 2002, to resolve whether NICA's proposal to accept the claim should be approved, and whether the notice provisions of the Plan were satisfied.
At hearing, the parties stipulated to the factual matters set forth in paragraphs 1, 2, and 4 of the Findings of Fact.
Petitioners, Gloria Nieves and Oscar Nieves, testified on their own behalf, and Petitioners' (Nieves') Exhibits 1A and 1B (the medical records, two volumes, filed with DOAH on November 6, 2001), as well as Petitioners' Exhibits A through H, were received into evidence. Respondent called no witnesses; however, Respondent's Exhibit 1, was received into evidence. Intervenor, Juan Ravelo, M.D., testified on his own behalf, and called Dvonne Kaplan as a witness. Dr. Ravelo's Exhibits A through G, as well as H1 and H2, were received into evidence.1 Intervenor, Florida Hospital-Altamonte, called Kay Settle as a witness, and Florida Hospital's Exhibits A through D were received into evidence.
The transcript of the hearing was filed August 29, 2002; however, the record was not closed until September 16, 2002.2 Consequently, the parties were accorded 10 days from
September 16, 2002, to file proposed orders. Intervenors elected to file such a proposal, jointly, and it has been duly- considered.
FINDINGS OF FACT
Preliminary findings
Petitioners, Gloria Nieves and Oscar Nieves, are the parents and natural guardians of Diego Nieves, a minor. Diego
was born a live infant on September 14, 2000, at Florida Hospital-Altamonte, a hospital located in Altamonte Springs, Florida, and his birth weight exceeded 2,500 grams.
The physician providing obstetrical services at Diego's birth was Juan Ravelo, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.
Coverage under the Plan
Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes.
Here, NICA has concluded, and the parties agree, that Diego suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA proposes to accept the claim as compensable under the Plan. Given the proof, NICA's proposal to accept the claim as compensable is approved.
Notice of Plan participation
While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the hospital and participating physician failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the health care providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000).
Pertinent to this issue, at the time of Diego's birth, Section 766.316, Florida Statutes, prescribed the notice requirements, as follows:
Each hospital with a participating physician on its staff and each participating physician
. . . 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(9)(b) or when notice is not practicable.
Responding to Section 766.316, Florida Statutes, NICA developed a brochure titled "Peace of Mind for an Unexpected Problem" (the NICA brochure) to comply with the statutory mandate, and distributed the brochure to participating physicians and hospitals so they could furnish the brochure to their patients.
Resolution of the notice issue
With regard to the notice issue, it is resolved that on March 14, 2000, Mrs. Nieves was provided timely notice that
Dr. Ravelo was a participating physician in the Plan, together with notice as to the limited no-fault alternative for birth- related neurological injuries provided by the Plan. Such conclusion is based on the more credible and persuasive proof which demonstrates that on such date, when Mrs. Nieves presented to Dr. Ravelo's office for her initial visit, she was, consistent with established practice, provided a form titled NOTICE TO OBSTETRIC PATIENT, which provided as follows:
NOTICE TO OBSTETRIC PATIENT
(See Section 766.316, Florida Statutes)
I have been furnished information by Mid-Florida Obstetric & Gynecology Specialists, Drs. Ravelo, Mowere & Geiling prepared by the Florida Birth-Related
Neurological Injury Compensation Association, and have been advised that Dr. Juan Ravelo, Dr. David Mowere & Dr. Michael Geiling are participating physicians in that program, wherein certain limited compensation is available in the event certain neurological
injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), 1543 Piedmont Drive East, Suite 101, Tallahassee, FL 32312, 1-800-398- 2129. I further acknowledge that I have received a copy of the brochure prepared by NICA.
Contemporaneously, Mrs. Nieves was given a copy of the NICA brochure titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Mrs. Nieves acknowledged her understanding of the form, as well as receipt of the NICA brochure, by dating and signing the form.3
Further addressing the issue of notice, it is resolved that on August 7, 2000, Florida Hospital-Altamonte also provided Mrs. Nieves notice as to the limited no-fault alternative for birth-related neurological injuries provided by the Plan. Such conclusion is again based on the more credible and persuasive proof which demonstrates that on such date, when Mrs. Nieves presented to the hospital for pre-registration, she was, consistent with established practice, provided a form titled NOTICE TO OBSTETRIC PATIENT, which provided as follows:
NOTICE TO OBSTETRIC PATIENT
Pursuant to Florida Statutes 766.316
I have been furnished with information by Florida Hospital that was prepared by the Florida Birth Related Neurological Injury Compensation Association (NICA). Under the
Association's NICA program, certain limited compensation is available in the event that certain neurological injury may occur during labor, delivery or resuscitation. I have also been informed that Florida Hospital, its related or affiliated organizations, and their employed physicians are participants in the NICA program.
I acknowledge and understand that my personal physician, or an on-call physician who I have been assigned to, may or may not participate in the NICA program. I understand that I may seek clarification from my physician as to his/her participation in the NICA program. I understand it is my responsibility to discuss this with my physician.
For specifics on the program, I understand that I can contact the Florida Birth Related Neurological Compensation Association (NICA), 1435 East Piedmont Drive, Suite 101,
Tallahassee, Florida 32312, (904) 488-8191, which is listed in the NICA brochure, I further acknowledge that I have received a copy of the NICA brochure called "Peace of Mind for an Unexpected Problem" from Florida Hospital prepared by NICA.
Contemporaneously, Mrs. Nieves was given a copy of the NICA brochure titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Again, Mrs. Nieves acknowledged her understanding of the form, as well as her receipt of the NICA brochure, by dating and signing the form.4
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.
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 on or after January 1, 1989. Section 766.303(1), Florida Statutes.
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. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. 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 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, as it has in
the instant case, 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. Section 766.305(6), Florida Statutes.
In discharging this responsibility, the administrative law judge 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 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 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 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 the 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.
As the claimants, the burden rested on Petitioners to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977) ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal").
Here, it has been established that the physician who provided obstetrical services at birth was a "participating physician," as that term is defined by the Plan, and that Diego suffered a "birth-related neurological injury," as that term is defined by the Plan. Consequently, Diego qualifies for coverage under the Plan. Sections 766.309 and 766.31, Florida Statutes.
While Diego qualifies for coverage under the Plan, Petitioners have sought to avoid the health care providers' attempt to invoke the Plan as their exclusive remedy by averring that the participating physician and hospital failed to comply with the notice provisions of the Plan. Consequently, it was necessary for the administrative law judge to resolve whether, as alleged by the health care providers, appropriate notice was given or, if not given, any failure to accord notice should be excused. O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, supra. As the proponent of such issue, the burden rested on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 311 (Fla. 1997)("[T]he assertion of NICA exclusivity is an affirmative defense"). See also Balino v. Department of Health and Rehabilitative Services, supra. Here, for reasons noted in the Findings of Fact, it has been resolved that the participating physician and hospital complied with the notice provisions of the Plan.
Where, as here, the administrative law judge determines that the infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth, he is required to make a determination as to how much compensation, if any, is awardable. Section 766.31,
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, and subject to approval by the administrative law judge, a hearing will be necessary to resolve any disputes regarding the amount and manner of payment of "an award to the parents or legal guardians of the infant," and the "[r]easonable expenses incurred in the connection with the filing of . . . [the] claim . . . including reasonable attorney's fees." Section 766.31(1)(b) and (c), Florida Statutes. As for medical expenses, they need not be separately addressed since the award will require, consistent with Section 766.31(2), "the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred." The final award will also reserve jurisdiction to resolve any disputes, should they arise, regarding the parties' compliance with the terms of the award.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that the claim for compensation filed by
Gloria Nieves and Oscar Nieves, as parents and natural guardians of Diego Nieves, a minor, and NICA's proposal to accept the claim for compensation be and the same are hereby approved.
It is FURTHER ORDERED that the participating physician and the hospital complied with the notice provisions of the Plan.
It is FURTHER ORDERED that the parties are accorded 20 days from the date of this order to resolve, subject to approval by the administrative law judge, the amount and manner of payment of an award to the parents or legal guardians, and the reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees. If not resolved within such period, the parties shall so advise the administrative law judge, and a hearing will be scheduled to resolve such issues.
Once resolved, a final award will be made consistent with 766.31, Florida Statutes.
DONE AND ORDERED this 9th day of October, 2002, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 2002.
ENDNOTES
1/ Dr. Ravelo's Exhibits H1 (the video tape of the deposition of Amy Magda) and Exhibit H2 (a copy of the transcript of the deposition of Amy Magda, with exhibits) were filed post-hearing (on September 13, 2002) and, there being no objection, received into evidence.
2/ At hearing, Amy Magda, although duly-subpoenaed, failed to appear as a witness on behalf of Dr. Ravelo. Consequently, the record remained open to allow Dr. Ravelo to enforce the subpoena or otherwise obtain Ms. Magda's testimony. Ms. Magda's testimony was taken by video deposition, and the video and transcript of the deposition (Dr. Ravelo's Exhibits H1 and H2, respectively) were filed with DOAH on September 13, 2002. By letter of September 16, 2002, the parties were advised that the record was now closed, and they were accorded 10 days to file proposed final orders.
3/ In reaching the conclusion that Dr. Ravelo complied with the notice provisions of the Plan, Petitioners' contentions that
Mrs. Nieves, whose first language is Spanish, should not be bound by the terms of the Notice to Obstetric Patient (notice), because she did not adequately understand the English language to appreciate its content, and that, in any event, she did not receive a copy of the NICA brochure, have not been overlooked.
However, it must be resolved that the more credible and persuasive proof compels a contrary conclusion.
First, with regard to the notice, the proof is less than compelling that, if read, Mrs. Nieves would not have understood its content. In so concluding, it is noted that Mrs. Nieves conducted her business with staff at Dr. Ravelo's office in English, notwithstanding the availability of bilingual personnel. Moreover, Mrs. Nieves' completion of other documentation on her initial visit (apart from the Notice to Obstetric Patient), also written in English, as well as her response to staff's questioning in English regarding her prior medical and family history, suggests a broader comprehension of the English language than she professed at hearing. As importantly, by signing the notice, Mrs. Nieves is held to the same knowledge she would have gleaned had she elected to inform herself of its content. See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Benton,
467 So. 2d 311, 313 (Fla. 5th DCA 1985)("Persons not capable of reading English, as well as those who are, are free to elect to bind themselves to contract terms they sign without
reading . . . . The burden is on the person who cannot read to
know that he cannot read and if he desires to have an instrument read and explained to him to select a reliable person to do so before he signs it"). Notably, copies of the notice were available in Spanish, if requested, and bilingual staff were available to assist, if requested. Moreover, Mr. Nieves, who was fluent in Spanish and English, was available to assist his wife, if requested.
In resolving that, more likely than not, Mrs. Nieves also received a copy of the NICA brochure contemporaneously with the notice, it is noted that, consistent with Dr. Ravelo's office practice, Mrs. Nieves received the notice, as well as other documentation a new patient would receive on her initial visit. Under the circumstances, it is unlikely that Mrs. Nieves did not receive the brochure. It is also unlikely, given the routine established by Dr. Ravelo and the hospital, discussed infra, that not one, but both health care providers would, as Mrs. Nieves' avers, fail to give her the brochure. Consequently, whether giving due consideration to the inferences to be drawn from the notice (regarding Mrs. Nieves' receipt of the NICA brochure) or not, the proof is compelling that Mrs. Nieves received the NICA brochure at Dr. Ravelo's office. Indeed, weighing the quality of the proof regarding Dr. Ravelo's established practice, with documentation, against the Nieves' testimony compels no other conclusion.
4/ In concluding that the hospital also complied with the notice provisions of the Plan, Petitioners' contentions that Mrs. Nieves should not be bound by the terms of the Notice to Obstetric Patient (notice), because she did not adequately understand the English language, and that, in any event, she did not receive a copy of the NICA brochure, have again not been overlooked.
However, it must again be resolved that the more credible and persuasive proof compels a contrary conclusion.
First, with regard to the notice, the proof, as heretofore noted, is less than compelling, that, if read, Mrs. Nieves would not have understood its content. As importantly, by signing the notice, Mrs. Nieves is held to the same knowledge she would have gleaned had she elected to inform herself of its content. See, e.g., Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Benton, supra. Notably, bilingual staff were available at the hospital to assist, if requested, as was Mr. Nieves.
With regard to the NICA brochure, and ignoring for the moment any inference to be drawn from the notice (regarding Mrs. Nieves' receipt of the NICA brochure), it must again be resolved that the
quality of the proof regarding the hospital's established practice, when weighed against the Nieves' testimony, compels the conclusion that, more likely than not, Mrs. Nieves received a copy of the NICA brochure when she presented for pre- registration. By having signed the notice, Mrs. Nieves only strengthens such conclusion.
COPIES FURNISHED:
Ronald S. Gilbert, Esquire Morgan, Colling & Gilbert, P.A.
20 North Orange Avenue, Suite 1600 Post Office Box 4979
Orlando, Florida 32802-4979
Robert A. Hannah, Esquire Hannah, Estes & Ingram, P.A.
37 North Orange Avenue, Suite 300 Post Office Box 4974
Orlando, Florida 32802-4974
Ronald A. Labasky, Esquire Ronald A. Labasky, P.A.
318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302
Thomas E. Dukes, III, Esquire McEwan, Martinez & Dukes, P.A.
108 East Central Boulevard Post Office Box 753
Orlando, Florida 32802-0753
Kenney Shipley, Acting Executive Director Florida Birth-Related Neurological
Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567
Tallahassee, Florida 32312
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 11, 2003 | DOAH Final Order | Final Order awarding attorneys` fees and costs, compensation to the parents, and providing for payment of expenses, past and future. |
| Oct. 09, 2002 | Other | Order resolving that claim was compensable and that health care providers complied with the notice provisions of the Plan. Still to be resolved is the amount of compensation to be awarded. |
