STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL S. LINTON AND TAMMY L. )

LINTON, on behalf of, and as ) parents and natural guardians ) of LILY MARIE LINTON, a minor ) child, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

) SOUTHERN BAPTIST HOSPITAL OF ) FLORIDA, INC., d/b/a BAPTIST ) MEDICAL CENTER and KATHRYN F. ) BING, M.D., )

)

Intervenors. )

Case No. 05-2210N

)

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 May 30, 2006, by video teleconference, with sites in Tallahassee and Jacksonville, Florida.

APPEARANCES

For Petitioners: James W. Gustafson, Jr., Esquire

Searcy Denney Scarola Barnhart & Shipley, P.A.

The Towle House

517 North Calhoun Street Tallahassee, Florida 32301

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South Laura Street, Suite 2110 Jacksonville, Florida 32202

For Intervenor Southern Baptist Hospital of Florida, Inc., d/b/a Baptist Medical Center:

Michael H. Harmon, Esquire Smith, Hulsey & Busey

225 Water Street, Suite 1800 Jacksonville, Florida 32202

For Intervenor Kathryn F. Bing, M.D.:

Mary Bland Love, Esquire

Gobelman, Love, Gavin, & Wasilenko 815 South Main Street, Suite 300

Jacksonville, Florida 32207 STATEMENT OF THE ISSUES

1. Whether Lily Marie Linton, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

2. If so, whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether notice was not required because the patient had an "emergency medical condition," as

defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.

PRELIMINARY STATEMENT

On June 20, 2005, Michael S. Linton and Tammy L. Linton, on behalf of, and as parents and natural guardians of Lily Marie Linton (Lily), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan), and to resolve whether the healthcare providers complied 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 June 21, 2005, and on October 17, 2005, following an extension of time within which to do so, NICA responded to the petition

and gave notice that it was of the view that Lily did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to resolve whether the claim was compensable. In the interim, Southern Baptist Hospital of Florida, Inc., d/b/a Baptist Medical Center, and Kathryn F. Bing, M.D., were granted leave to intervene. Thereafter, by Notice of Hearing dated November 8, 2005, a hearing was scheduled for April 13 and 14,

2006, and subsequently rescheduled for May 30 and 31, 2006, to resolve whether the claim was compensable and whether the

healthcare providers complied with the notice provisions of the Plan.

At hearing, Exhibits 1-34, as identified in the parties' Amended Notice of Filing Stipulated Record, filed May 24, 2006, were received into evidence. In addition, Petitioners offered Exhibit 35 (a composite exhibit that included five radiology reports), which was received into evidence, and Dr. Bing offered Exhibit 36 (a "Peace of Mind" brochure of unknown vintage), that was marked for identification, but not received into evidence.

Petitioners called Tammy Linton as a witness, and Dr. Bing testified on her own behalf and called Robin Batdorf as a witness.

The transcript of the hearing was filed June 14, 2006, and the parties were accorded 10 days from that date to file proposed orders. The parties elected to file such proposals and they have been duly-considered.

FINDINGS OF FACT

Stipulated facts

1. Michael S. Linton and Tammy L. Linton are the natural parents of Lily Marie Linton, a minor. Lily was born a live infant on January 14, 2001, at Baptist Medical Center, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Lily's birth by Kathryn F. Bing, 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

   
   

3. 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 or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."

   § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

4. Here, it is undisputed that Lily is permanently and substantially mentally and physically impaired. What must be resolved is whether the record supports a conclusion that, more likely than not, Lily's neurological impairment resulted from an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. As to that issue, Petitioners were of the view that Lily's impairments resulted from a brain injury

   caused by oxygen deprivation or mechanical trauma that occurred during labor, delivery, or resuscitation. In contrast, NICA was of the view that Lily's impairments were most likely developmentally based, as opposed to birth-related. Intervenors took no position regarding the compensability of the claim.

   Lily's birth and subsequent development

   
   

5. At or about 6:10 a.m., January 14, 2001, Mrs. Linton, with an estimated delivery date of January 25, 2001, and the fetus at 38 3/7 weeks' gestation, presented to Baptist Medical Center, following spontaneous rupture of the membranes (at 5:00 a.m.). At the time, mild occasional contractions were documented; vaginal examination revealed the cervix at 2

   centimeters dilation, 50 percent effacement, and the fetus at -2 station; and fetal monitoring was reassuring for fetal well- being, with a baseline of 140-150 beats per minute. Given rupture of the membranes, Mrs. Linton was committed to deliver and she was admitted for induction of labor.

6. Pitocin induction was started at 7:09 a.m., with normal progression of labor until 3:37 p.m., when full dilation was noted, and Lily was delivered at 4:56 p.m., with vacuum assistance (4-5 attempts). In the interim, starting at

   3:08 p.m., and continuing through delivery, fetal heart monitoring raised concerns regarding fetal reserves, and whether oxygen deprivation was occurring, with nonreassuring

   decelerations, and slow return to baseline starting at

   
   

   3:08 p.m.; wandering baseline, from 3:35 p.m. - 3:53 p.m., and 4:20 p.m., to 4:33 p.m., when tachycardia was first noted; and tachycardia from 4:42 p.m., until Lily was delivered, with intervening decelerations.

7. Dr. Bing's progress note charts Mrs. Linton's labor progress and Lily's delivery as follows:

   16:10 [4:10 p.m.] C/C/+1 . . . FHT 135 +

   accels [with] mild variables . . . Discussed vacuum delivery [with] Pt . . . Pt pushing x

   1 hr arrest of descent. Manual rotation attempted - [No] rotation made. Vacuum placed . . . Minimal descent with first pull. [No] descent [with] second pull and vacuum removed. At 16:30 FHT in 170's [with] variables noted [with] [decreas]ed variability and need for c-section if not rapidly delivered was discussed [with] pt. Pt was further encouraged to push harder

   . . . At that point pt. allowed to push on her own [with] further encouragement and fetal head delivered [at] 1656. Tight nuchal cord x 1 reduced and fetal body delivered and noted to be limp. NICU consult ordered [and] infant placed in warmer.

   
   

8. At delivery, Lily was floppy, pink centrally but extremely pale, with little movement noted, and with poor respiratory effort. Resuscitation efforts included blow-by oxygen for four minutes, with deep suctioning of "lots" of clear secretions. Cord pH was reported as 7.08, with p02 of 16.9, C02 of 81.5, HC02 of 23.2, and base excess (BE) of -10.3. Apgar

   scores (while on blow-by oxygen) were recorded as 6 and 7, at one and five minutes, respectively.1

9. Despite resuscitative efforts, Lily remained floppy, pale, and toneless, and she was transferred to the newborn intensive care unit (NICU), where she was received at 5:05 p.m. There, initial arterial blood gases (ABGs), while on blow-by oxygen, reported a pH of 7.20, pC02 of 20, p02 of 367, and BE of

   -19, with poor peripheral perfusion and borderline blood pressure (with a mean of 34 on admission, and a mean of 32, 31, 35, and 40, at 6:00 p.m., 7:00 p.m., 8:00 p.m., and 9:00 p.m., respectively). Since Lily was not exchanging air, she was intubated and remained in the NICU for further observation.

   Indications for admission included hypoperfusion, metabolic acidosis, respiratory depression, possible sepsis, and depression at birth.

10. Lily's Admission Summary noted the following vital signs and results on physical examination:

    ADMISSION VITAL SIGNS & PHYSICAL EXAM WEIGHT: 3.015kg LENGTH: 48.0 cm HC: 37.0 cm

    OVERALL STATUS: Critical and unstable. TEMP: 99.6 HR: 177 RR: 42 BP: 40/30 (34)

    GLUCOSE SCREENING: 70.

    CONDITION: Pale, acrocyanotic, floppy and depressed in mild respiratory distress.

    HEENT: AFF & soft, orally intubated, very severe caput succedaneum[2] subgaleal bleed

    ?, intact palate, patent nares, scalp bruising and scalp edema.

    RESPIRATORY: BLBS=and clear but with and poor respiratory effort.

    CARDIAC: RRR without murmur, pulses acceptable and poor perfusion.

    ABDOMEN: Soft no masses and 3-vessel cord. GU: Normal term female features.

    NEUROLOGIC: Generalized decreased tone and activity and decreased muscle tone. Mildly asymmetric. Moro and grasp reflexes.

    SPINE: No gross deformity and no dimpling. EXTREMITIES: Nondysmorphic and mildly decreased arm movement on the left.

    SKIN: Pink, warm and dry.

    
    

11. Lily's hospital course over the first 72 hours included mechanical ventilation for less than 24 hours, and empiric antibiotics for possible sepsis. Physical examination disclosed facial edema, very severe caput succedaneum, with likely subgaleal hemorrhage, bossing3 of skull (left temporal area), and scalp bruising. Subtle facial dysmorphisms were noted, with genetics consultation that resulted in a renal ultrasound revealing a right multicystic kidney (likely familial related) and an echocardiogram revealing atrial sepal defect (ASD). Genetics consult was otherwise unrevealing. Neurologic issues also arose the morning of January 16, 2001, when repetitive unsuppressible right arm clonic activity was noted, consistent with neonatal seizures, and treated with Phenobarbital. A second event was noted later than afternoon, and a CT of the brain was performed. That CT scan was reported, as follows:

    Considerable scalp swelling posteriorly in the parietal region. Lateral ventricles are minimally prominent for age, but there is no

    hydrocephalus. No extra-axial collections are seen. A tiny amount of hyperdensity consistent with blood layering in the right occipital horn. Prominent CSF space posterior to the cerebellum, likely an incidental note.

    
    

    IMPRESSION:

    Tiny amount of blood in the right occipital horn. No definite parenchymal abnormalities . . . .

    
    

12. A neurologic consult on January 17, 2001, noted no further seizure activity and recommended careful observation, without maintenance phenobarbital, and an electroencephalogram (EEG). The EEG was reported, as follows:

    This is an abnormal EEG for a patient of this age due to the presence of excessive discontinuity and asynchrony. This is a nonspecific abnormality but is indicative of diffuse central nervous system dysfunction.

    
    

    An eye exam on January 18, 2001, revealed retinal hemorrhages, likely birth related.

13. Lily was discharged home on January 29, 2001, with follow-up appointments with her primary care physician (Dr. Iris Eisenberg), as well as cardiology (for ASD), urology (for multicystic right kidney), and genetics (for possible chromosomal abnormalities). At discharge, Lily's overall status was noted as "convalescent," with "improving facial edema, left post[erior] scalp cont[inued] fluctuant[4] and bossing of skull Lt temporal area . . . [and] scalp bruising improving," and "increased spontaneous activity."

14. Notably, following discharge, Lily's multicystic kidney was surgically removed, her ASD closed naturally, and by three to four months of age she demonstrated significant developmental delays for most functions, including gross motor, fine motor, and language skills. Consequently, on June 7, 2001, Dr. Eisenberg, suspecting an evolving infantile cerebral palsy, referred Lily to Baptist Medical Center for an MRI brain scan. That scan, done June 8, 2001, was read, as follows:

    . . . The lateral ventricles are mildly dilated and the periventricular white matter is thin. Lateral ventricular contour is somewhat irregular, as well. The corpus callosum is present at least anteriorly and is somewhat thin. Pituitary gland present. Cerebellar vermis normal. No extra-axial collection. No intracranial mass. The posterior fossa and the brain stem are normal.

    
    

    IMPRESSION:

    Lateral ventricles mildly dilated with irregular contour with thin periventricular white matter in the cerebral hemispheres.

    
    

15. Further studies were done on January 11, 2002 (a CT of the Brain without contrast), and January 16, 2002 (an MRI of the Brain without enhancement and an MR Spectroscopy). (Exhibit 35). The CT of the Brain was read, as follows:

    No prior studies for comparison. There is moderate ventriculomegaly. There is lucency in the white matter of both cerebral hemispheres. Lucencies predominantly in the periventricular white matter. I am uncertain whether this lucency is chronic change from a disorder such as

    periventricular leukomalacia or minimal periventricular edema, hydrocephalus. A dysmyelinating disorder might also produce this appearance. MRI might better characterize the CT findings. No other areas of abnormal density seen in the brain. No extracerebral collections.

    
    

    Moderate ventriculomegaly with abnormal lucency in the white matter. See differential discussion above. MRI might better characterize these findings.

    
    

    The MRI of the Brain was read, as follows:

    
    

    The study shows moderate ventriculomegaly. T2 weighted images show prominent areas of increased signal in the white matter of both cerebral hemispheres. There is decreased white matter volume. The corpus callosum is thinned. There is delayed white matter myelination. The findings are probably secondary to changes of periventricular leukomalacia. Correlation with the birth history would be helpful. No other findings are identified.

    
    

    IMPRESSION:

    Abnormal study as described above. The findings probably represent late changes related to severe periventricular leukomalacia with delayed myelination, see above.

    
    

    The MR Spectroscopy was read, as follows:

    
    

    Single voxel spectroscopy was performed in the right frontal lobe white matter, the left high convexity left frontal lobe and the right posterior basal ganglia. In the high convexity left frontal lobe the NAA peak is slightly decreased related to the choline and Creatine. Spectroscopy in the other two sites is within normal limits. No significant abnormality is identified. The mild relative decrease in size of the NAA peak seen in the left frontal lobe may be

    related to a brain immaturity. Imaging of the brain was performed at the same time and is reported separately. The study is abnormal and has findings that probably represent late findings related to periventricular leukomalacia.

    
    

16. Notably, despite extensive diagnostic workups, including genetic testing, Lily's treating physicians have not identified a unifying etiology for her systemic difficulties. The likely cause of Lily's disability

17. To address the cause of Lily's disability, the parties offered the medical records related to Mrs. Linton's antepartal course, as well as those associated with Lily's birth and subsequent development. Additionally, the parties offered the testimony of Dr. Bing, the delivering obstetrician; Mary Edwards-Brown, M.D., a physician board-certified in radiology, with subspecialty certification in neuroradiology; Andrea Morrison, M.D., a physician board-certified in pediatrics, and board-eligible in neurology with special competence in child neurology; and Michael Duchowny, a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.5 The testimony of Doctors Bing, Edwards-Brown, and Morrison, were supportive of Petitioners' view on causation and the testimony of Doctor Duchowny was supportive of NICA's view on causation.

18. The medical records and the testimony of the parties' experts, as well as the remaining record, has been thoroughly reviewed. Having done so, it must be resolved that the record developed in the case compels the conclusion that, more likely than not, Lily's impairments resulted from an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital.6

19. In so concluding, it is noted that Dr. Bing, the only physician shown to have reviewed the fetal monitor strips, observed that beginning at 3:08 p.m., and continuing through delivery at 4:56 p.m., there were periods of concern with regard to fetal reserves and fetal oxygenation. Also of note,

    Dr. Edwards-Brown, who practices neuroradiology, with an emphasis on pediatric neuroradiology, examined the serial studies of Lily's brain, and resolved they were consistent with a brain injury (a gross loss of white matter), consistent with hypoxic ischemic encephalopathy (HIE), that resulted from partial prolonged hypoxia during birth.7 Finally, of note, are the observations of Dr. Morrison, a pediatric neurologist, who, based on her review of the medical records, was of the opinion that Lily's disabilities were most likely related to a hypoxic ischemic brain injury caused by oxygen deprivation or mechanical injury occurring during labor, delivery, or immediate

    postdelivery resuscitation. Such conclusion was supported, inter alia, by Lily's depressed state at birth (floppy, pale, with little movement, and with poor perfusion); severe metabolic acidosis; evidence of severe trauma (caused by a difficult delivery, with vacuum assistance), with a large subgaleal hemorrhage, and resultant low blood pressure/hypotension and drop in hematocrit. In sum, it was Dr. Morrison's opinion that Lily's brain injury started during the later stage of labor, with the onset of oxygen deprivation, and progressed through delivery, so that on delivery, there was evidence of profound injury, which was exacerbated by the subgaleal hemorrhage, with resultant hypotension, until Lily was resuscitated and stabilized following delivery. Given such proof, it is likely, more so than not, that Lily's impairments resulted from a brain injury caused by oxygen deprivation or mechanical injury that occurred during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital.

    The notice issue

    
    

20. While the claim qualifies for coverage under the Plan, Petitioners also averred, and initially requested a finding that the healthcare providers failed to comply with the notice provisions of the Plan, so they might pursue their civil remedies should they so elect. See Galen of Florida, 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.") However, in their proposed order, Petitioners concede, and the proof is otherwise uncontroverted, that the hospital either complied with the notice provisions of the Plan (by giving Mrs. Linton notice when she presented to Baptist Medical Center on January 14, 2001), or was not required to give notice because Mrs. Linton had an emergency medical condition when she presented to Baptist Medical Center on January 14, 2001 (with evidence of rupture of the membranes), and, since Mrs. Linton did not present to Baptist Medical Center prior to January 14, 2001, it was not practicable for the hospital to have given notice prior to that date. (Petitioners' Proposed Order, paragraph 20). Consequently, indisputably the hospital complied with the notice provisions of the Plan, and that issue need not be further addressed. However, with regard to Dr. Bing, the issue remains in dispute, and must be resolved.8 The notice provisions of the Plan

21. At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, 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(9)(b) or when notice is not practicable.

    
    

22. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean:

    (b) With respect to a pregnant woman:

    
    

    1. That there is inadequate time to effect safe transfer to another hospital prior to delivery;

       
       

    2. That a transfer may pose a threat to the health and safety of the patient or fetus; or

       
       

    3. That there is evidence of the onset and persistence of uterine contractions[9] or rupture of the membranes.

23. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary.").

    Findings related to the participating physician and notice

    
    

24. Mrs. Linton received her prenatal care at North Florida Obstetrics and Gynecological Associates, P.A., Baptist- Division I, a group practice that was, at the time of her initial visit, comprised of four physicians that practiced obstetrics and gynecology (Doctors H. Wade Barnes, Jr.,

    C. Cameron Greene, Kathryn Fipp Bing, and Sayra C. Sievert), and probably one other physician (Doctor Peter A. McCranie), who restricted his practice to gynecology.

25. On July 6, 2000, Mrs. Linton presented to Baptist- Division I for her initial visit. At the time, consistent with established office practice for new prenatal patients,

    Mrs. Linton was given information furnished by NICA regarding the Plan, together with a Notice to Obstetric Patient (to

    acknowledge receipt of the information). The Notice to Obstetric Patient provided as follows:

    NOTICE TO OBSTETRIC PATIENT

    (See Section 766.316, Florida Statutes)

    
    

    I have been furnished information by North Florida Obstetrical & Gynecological Associates, P.A. prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Drs. Barnes, Hill, and Greene 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), 1435 Piedmont Drive, East, Suite 101, Tallahassee, Florida, 32312, 1-800-398- 2129. I further acknowledge that I have received a copy of the brochure prepared by NICA.

    
    

    DATED this day of , 19 .

    
    

    Signature

    
    

    Printed name

    
    

    Social Security Number

    
    

    Attest:

    
    

    (Nurse or Physician) Date:

    The notice was printed on North Florida Obstetrics & Gynecological Associates, P.A. (North Florida OBGyn) stationary, and listed each of the fifteen offices within the association, including Baptist-Division I, vertically along the left side of its stationary, with the name of the physicians associated with each office. (Exhibit 1). Dr. Bing was named on the letterhead under Baptist-Division I, but was not included in the body of the notice. Mrs. Linton completed the form, by providing the requested information (name and social security number) and then signed and dated the form (albeit, incorrectly as July 7, 2000). Robin Batdorf, the OB educator who saw Mrs. Linton on her initial visit, witnessed her signature.

26. Mrs. Linton acknowledges she signed the Notice to Obstetric Patient, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the information furnished by NICA. Consequently, there being no proof to the contrary, the presumption that Doctors Barnes, Hill, and Greene, the physicians named in the notice, met the notice requirements of the Plan stands unrebutted.10 As for Dr. Bing, she contends the notice, even though it fails to name her, satisfies her obligation to give notice or, alternatively, that notice was not required because when Mrs. Linton presented to Baptist Medical

    Center on January 14, 2001, she had an emergency "medical condition" or the giving of notice of "not practicable."

27. With regard to the notice, it was Dr. Bing's contention that, while her name did not appear in the body of the notice, she was listed on the letterhead as one of the physicians associated with Baptist-Division I; that as part of the office routine Ms. Batdorf, when discussing the Notice to Obstetrics Patient form and the NICA program, routinely told all new patients "all our doctors participate;" and therefore satisfied her obligation to provide notice. However, considering the proof, it was most likely Ms. Batdorf used the phrase "our doctors participate," as opposed to "all our doctors participate," when discussing the NICA program. Moreover, whichever phrase she used, it was not, given the restrictive language of the notice (which named only Doctors Barnes, Hill, and Greene, as participants in the Plan), and notwithstanding the inclusion of Dr. Bing's name on the letterhead of North Florida OBGyn as a physician associated with Baptist-Division I, adequate to satisfy Dr. Bing's obligation to provide each patient with notice of her participation in the Plan.

28. As for her alternative contention, Dr. Bing, who was a participating physician in calendar year 2000 (when Mrs. Linton began her prenatal care at Baptist-Division I) and calendar year 2001 (when Lily was delivered), contends that notice was not

    required because when Mrs. Linton presented to Baptist Medical Center on January 14, 2001, she had an "emergency medical condition," as defined by Section 395.00(2)(b), Florida Statutes, and that, since she never personally provided services to Mrs. Linton prior to that date, the giving of notice was not otherwise "practicable."

29. Here, it is uncontroverted that when Mrs. Linton presented to Baptist Medical Center on January 14, 2001, she had an "emergency medical condition," as defined by Section 395.00(2)(b), Florida Statutes. However, given the office routine of Baptist-Division I, and notwithstanding that Dr. Bing never personally provided services for Mrs. Linton prior to her admission to the hospital, it was practicable for notice to have been given on behalf of Dr. Bing on Mrs. Linton's first prenatal visit to Baptist-Division I, and at any of Mrs. Linton's other ten visits.11 Consequently, for reasons appearing more fully in the Conclusions of Law, it must be resolved that Dr. Bing failed to comply with the notice provisions of the Plan.

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.

    Compensability and award

    
    

31. In resolving whether a claim is covered by the Plan, the administrative law judge must make the following determination based upon the available evidence:

    1. 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).

       
       

    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 the birth." § 766.31(1), Fla. Stat.

32. "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 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 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.

    
    

33. In this case, it has been established that the physician who provided obstetrical services at Lily's birth was a "participating physician," and that Lily suffered a "birth- related neurological injury." Consequently, Lily qualifies for coverage under the Plan, and Petitioners are entitled to an award of compensation. §§ 766.309 and 766.31, Fla. Stat. However, in this case, the issues of compensability and notice, and issues related to an award were bifurcated. Accordingly, absent agreement by the parties, and subject to the approval of 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 . . . of the infant," the "[r]easonable expenses incurred in connection with the filing of

    . . . [the] claim . . ., including reasonable attorney's fees," and the amount owing for "expenses previously incurred."

    § 766.31(1), Fla. Stat.

    Notice

    
    

34. While the claim qualifies for coverage, Petitioners have 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 healthcare providers. As the proponent of the immunity claim, the burden rested on the healthcare providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied. See Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004)("The ALJ . . . properly found that '[a]s the proponent of the issue, the burden rested on the health care provider to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied.'"); Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 311 (Fla. 1997)("[T]he assertion of NICA exclusivity is an affirmative defense.").

35. At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, 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(9)(b) or when notice is not practicable.

    
    

36. Here, for the reasons appearing in the Findings of Fact, it has been resolved that Dr. Bing did not provide notice of her participation in the Plan. Moreover, it has been resolved that, while Mrs. Linton presented to Baptist Medical Center with an emergency medical condition, because there was evidence of rupture of the membranes, Dr. Bing nevertheless failed to comply with the notice provisions of the Plan because, although there was a reasonable opportunity to do so during

Mrs. Linton's prenatal care at Baptist-Division I, notice was not provided. University of Miami v. Ruiz, 916 So. 2d 865 (Fla. 3d DCA 2005)(certifying conflict); Northwest Medical Center, Inc. v. Ortiz, 920 So. 2d 781 (Fla. 4th DCA 2006)(same). See also Board of Regents of the State of Florida v. Athey, 694 So. 2d 46 (Fla. 1st DCA 1997); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188

(Fla. 1st DCA 2002). But see Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005). Consequently, while the hospital complied with the notice provisions of the Plan, the participating physician did not.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the claim for compensation filed by Michael S. Linton and Tammy L. Linton, on behalf of, and as parents and natural guardians of Lily Marie Linton, a minor, be and the same is hereby approved.

It is FURTHER ORDERED that the hospital complied with the notice provisions of the Plan, but the participating physician did not.

It is FURTHER ORDERED that the parties are accorded 30 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, the reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees, and the amount owing for expenses previously incurred. 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, an award will be made consistent with Section 766.31, Florida Statutes.

DONE AND ORDERED this 28th day of July, 2006, in Tallahassee, Leon County, Florida.

S

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 28th day of July, 2006.

ENDNOTES

1/ An Apgar score is a numerical expression of the condition of a newborn infant, and reflects the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and color, with each category being assigned a score ranging from the lowest score of 0 to a maximum score of 2. See Dorland's Illustrated Medical Dictionary, 28th Edition, 1994. Here, at one minute, Lily's Apgar score totaled 6, with heart rate being graded at 2, and all other criteria being graded at 1 each. At five minutes, Lily's Apgar score totaled 7, with heart rate and reflex irritability being graded at 2 each, and all other criteria being graded at 1 each.

2/ A "caput succedaneum" is an "edema occurring in and under the fetal scalp during labor." Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition, 1994.

3/ "Boss[ing]" is "a rounded eminence, as on the surface of a bone or tumor." Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition, 1994.

4/ "Fluctuant" is the "sensation of or exhibiting wavelike motion on palpation owing to a liquid content."

Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition, 1994.

5/ The parties also offered photographs of Lily and her sisters, and the testimony of Tammy Linton, Wanda Sapp,

Michael Linton, and Heather Wesche. This testimony, as well as the exhibits, have been considered, but need not be separately addressed.

6/ In reaching such conclusion, the opinion of Dr. Duchowny, who was of the view that Lily's impairments were most likely related to brain development, as opposed to a birth-related injury, has not been overlooked. However, given the record presented, the opinions of Doctors Bing, Edwards-Brown, and Morrison are more persuasive with regard to the likely etiology of Lily's disabilities.

7/ Dr. Edwards-Brown examined the initial CT scan of January 16, 2001, and noted massive scalp edema and scalp

swelling, consistent with a large subgaleal hematoma caused by a subgaleal hemorrhage; moderate enlargement of the ventricles, consistent with hydrocephalus; blood layering in the right occipital horn, consistent with an intraventricular hemorrhage (IVH); a focal loss of gray and white matter differentation; and periventricular white matter lucency, findings which

Dr. Edwards-Brown found suggestive of an ischemic injury. On examination of the MRI of June 8, 2001, Dr. Edwards-Brown found findings consistent with hypoxic ischemic encephalopathy, which confirmed her initial suspicion that Lily had suffered a hypoxic brain injury at birth. According to Dr. Edwards-Brown, subsequent studies were consistent with those conclusions.

8/ O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 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.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Gugelmin v. Division of Administrative Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002); Behan v. Florida Birth-Related Neurological Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004)(certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA

2004)(same); Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same); and, Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Association, 893 So. 2d 636 (Fla. 2d DCA 2005)(same). See also Senate Bill (SB) 542, approved by the Governor May 2, 2006, which provided in pertinent part, as follows:

Section 1. Paragraph (d) is added to subsection (1) of section 766.309, Florida Statutes, to read:

766.309 Determination of claims; presumption; findings of administrative law judge binding on participants.--

(1) The administrative law judge shall make the following determinations based upon all available evidence:

(d) Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s.

766.316 are satisfied. The administrative law judge has the exclusive jurisdiction to make these factual determinations.

Section 2. It is the intent of the Legislature that the amendment to s. 766.309, Florida Statutes, contained in this act, clarifies that since July 1, 1998, the administrative law judge has had the exclusive jurisdiction to make factual determinations as to whether the notice requirements in s. 766.316, Florida Statutes, are satisfied. [Words underlined are additions.]

9/ The first stage of "labor" is commonly understood to "begin[] with the onset of regular uterine contractions." Dorland's Illustrated Medical Dictionary, 28th Edition, 1994. "Regular," is commonly understood to mean "[o]ccurring at fixed intervals, periodic." The American Heritage Dictionary of the English Language, New College Edition (1979). Similarly, "persistent," as that term is used in Section 395.002(9)(b)3, Florida Statutes, is commonly understood to mean "[i]nsistently repetitive or continuous." Id.

10/ At the time, Dr. Hill was most likely retired, and no longer associated with the practice.

11/ Notably, Dr. Bing never gave notice to a patient and relied on office routine to provide any needed notice.

COPIES FURNISHED:

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

James W. Gustafson, Jr., Esquire

Searcy Denney Scarola Barnhart & Shipley, P.A. The Towle House

517 North Calhoun Street Tallahassee, Florida 32301

Michael H. Harmon, Esquire Smith, Hulsey & Busey

225 Water Street, Suite 1800 Jacksonville, Florida 32202

M. Mark Bajalia, Esquire Brennan, Manna & Diamond

76 South Laura Street, Suite 2110 Jacksonville, Florida 32202

Mary Bland Love, Esquire Gobelman, Love, Gavin,

& Wasilenko

815 South Main Street, Suite 300

Jacksonville, Florida 32207

Docket for Case No: 05-002210N

Orders for Case No: 05-002210N