STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ARMANDO PAYAS, ESQUIRE, as )
guardian ad litem and trustee ) for LUIS VAZQUEZ, a minor AND ) TERESA VAZQUEZ AND RIGOBERTO )
VAZQUEZ, individually, )
)
Petitioners, )
)
vs. )
)
FLORIDA BIRTH-RELATED )
NEUROLOGICAL INJURY )
COMPENSATION ASSOCIATION, )
)
Respondent, )
)
and )
) BOND AND STEELE CLINIC, P.A., ) d/b/a BOND CLINIC, P.A.; EVA ) JENNIFER SALAMON, M.D.; TONYA ) BLANKENSHIP NICHOLSON, CNM; ) CARLOS GABRIEL, M.D.; WINTER ) HAVEN HOSPITAL, INC., d/b/a ) WINTER HAVEN HOSPITAL; REGENCY ) MEDICAL CENTER; AND MARIA KONG, ) M.D., )
)
Intervenors. )
Case No. 10-2922N
)
FINAL ORDER
Upon due notice, a final hearing was conducted by Ella Jane
Davis, an Administrative Law Judge (ALJ) of the Division of Administrative Hearings (DOAH) on October 6, 2011, by video teleconference with sites in Orlando and Tallahassee, Florida.
APPEARANCES
For Petitioners: Maria D. Tejedor, Esquire
Christopher J. Bilecki, Esquire Diez-Arguelles and Tejedor, P.A.
505 North Mills Avenue Orlando, Florida 32803
For Respondent: Jeffrey P. Brock, Esquire
Smith, Hood, Perkins, Loucks, Stout, Bigman, & Brock P.A.
444 Seabreeze Boulevard, Suite 900 Daytona Beach, Florida 32118
For Intervenors Bond and Steele Clinic, P.A., d/b/a Bond Clinic, P.A., Eva Jennifer Salamon, M.D., Tonya Blankenship Nicholson, CNM, and Carlos Gabriel, M.D.:
Andrew M. Brown, Esquire MacFarlane, Ferguson & McMullen Post Office Box 1531
Tampa, Florida 33601
For Winter Haven Hospital, Inc., d/b/a Winter Haven Hospital and Regency Medical Center:
Brian L. Smith, Esquire Christopher J. Steinhaus, Esquire
Hill, Adams, Hall & Schieffelin, P.A. Post Office Box 1090
Winter Park, Florida 32790-1090 For Maria Kong, M.D.:
Karissa Owens, Esquire Rissman, Barrett, Hurt,
Donahue and McLain, P.A.
201 East Pine Street, 15th Floor Post Office Box 4940
Orlando, Florida 32801
STATEMENT OF THE ISSUES
Whether this cause is barred by the statute of limitations found at section 766.313, Florida Statutes;
Whether Luis Vazquez, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan; and
Whether lawful pre-delivery notice was provided by the hospital and the obstetricians involved in labor, delivery, and resuscitation in the immediate postdelivery period related to
Luis Vazquez's birth.
PRELIMINARY STATEMENT1/
On May 10, 2010, Armando Payas, Esquire, as guardian ad litem, and trustee for Luis Vazquez (Luis); and Teresa Vazquez and Rigoberto Vazquez, individually and on behalf of
Luis Vazquez, filed a Petition (claim) with DOAH to resolve whether Luis qualifies for coverage under the Florida Birth- Related Neurological Injury Compensation Plan (Plan).2/
An amendment of the original Petition was ordered sua sponte on June 1, 2010. That Order required Petitioners to file a claim/petition conforming to sections 766.301-766.316, including naming the Florida Birth-Related Neurological Injury Compensation Association (NICA) as the Respondent. On June 10, 2010, an Amended Petition was filed.
DOAH served NICA with a copy of the original claim on June 2, 2010.
Upon appropriate motion, a July 13, 2010, Order granted Intervenor status to the Bond and Steele Clinic, P.A., d/b/a Bond Clinic, P.A.; Eva Jennifer Salamon, M.D.; Tonya Blankenship Nicholson, CNM; and Carlos Gabriel, M.D. Upon appropriate motion, an Order entered July 22, 2010, granted Intervenor status to Winter Haven Hospital, Inc., d/b/a Winter Haven Hospital and Regency Medical Center.
On September 30, 2010, following an extension of time in which to do so, NICA filed the response to the petition required under section 766.305(4), but reserved the right to amend after receiving the results of an independent medical examination of the child, Luis.
Upon appropriate motion, Maria Kong, M.D. (Kong), was granted Intervenor status by an Order entered October 7, 2010.
On October 28, 2010, Petitioners filed a Second Amended Petition, asserting that the claim is not compensable and that the hospital and participating physicians failed to provide NICA notice.
An Order entered November 17, 2010, permitted the case to proceed upon the Second Amended Petition.
On December 10, 2010, NICA filed its Amended Response, asserting that the claim is compensable because the injury to
Luis meets the definition of a birth-related neurological injury as defined in section 766.302(2), but also asserting a statute of limitations defense, pursuant to section 766.313.3/
There has been no motion to dismiss by NICA, and NICA has taken no position on the notice issue.
Inasmuch as the claim was filed more than five years after Luis's birth, the claim, as against NICA, is indisputably barred by the statute of limitations found at section 766.313.
However, the parties proceeded to hearing in line with previous cases which allow such a procedure so as to fully inform a circuit court dealing with issues of immunity in a related medical malpractice case.4/
DOAH has exclusive jurisdiction of issues of compensability and notice and the circuit court has exclusive jurisdiction of issues of immunity.5/ Herein, Petitioners sought to have their NICA claim found non-compensable, or for it to be determined that one or more health care providers failed to give lawful pre-delivery notice of NICA participation, in hopes that a circuit court will permit them to pursue a medical malpractice action against one or more of the intervenors, most notably Intervenor Kong, a neonatologist. Such an action was filed prior to proceeding against NICA in this forum. Petitioners also elected, as is their right, not to invoke the rebuttable presumption of compensability found at section 766.309(1)(a).6/
On the other hand, Intervenors (the hospital and all other health care providers) elected to invoke the rebuttable presumption afforded by section 766.316, and assert that they gave appropriate pre-delivery notice at the first opportunity to do so, or that notice was excused, pursuant to the "emergency" or "not practicable" provisions of that statute.7/
In light of the positions of NICA and the Intervenors supporting compensability and the opposing view of Petitioners denying compensability, the case proceeded to final hearing on October 6, 2011, upon both the issue of compensability and the issue of notice.8/
At final hearing, ALJ Exhibit A and Joint Exhibits J1-36, were admitted in evidence. (Joint Exhibit 37 was struck, as duplicative of Joint Exhibit 36.) Petitioners' Exhibits P2-6 were admitted in evidence. Intervenors' Exhibits I1-4 were admitted in evidence. Petitioners were permitted a proffer of photographs, designated P-5A, which were not admitted or considered. (Some exhibits or parts of exhibits were physically transmitted to the undersigned after the video hearing was concluded and have been considered.)9/ Petitioners also presented the oral testimony of Teresa Vazquez and Rigoberto Vazquez. Respondent and Intervenors did not present any oral testimony. All other witnesses, including all medical experts, testified by deposition.
A Transcript of the final hearing was filed on October 31, 2011, and the parties were granted until December 5, 2011, in which to file their respective proposed final orders.
Thereafter, due to a malfunction of their own or DOAH's electronic transmittal system(s) in use at the time, the parties stipulated among themselves to the later filing of some proposed orders. The parties' stipulation has been honored and all proposals filed under the parties' agreement have been considered.10/
Unless otherwise indicated, the statutes referred-to herein are those applicable to the years 2003-2004.
FINDINGS OF FACT
Stipulated Findings of Fact
Petitioners, Teresa Vazquez and Rigoberto Vazquez, are the mother and father/natural guardians of Luis Vazquez, a minor.
The on-call obstetrician during Teresa Vazquez's labor and delivery was Intervenor Eva Jennifer Salamon, M.D.
The delivery was performed by Intervenor Tonya Blankenship Nicholson, CNM.
Luis Vazquez was born at Winter Haven Hospital, d/b/a Regency Medical Center, a licensed Florida hospital in Winter Haven, Florida, on January 5, 2004.
Luis Vazquez's weight at birth was 3,313 grams.
Luis Vazquez was delivered vaginally.
Luis Vazquez's medical condition and treatment is as documented in the birth records of Winter Haven Hospital/Regency Medical Center.
Intervenors, with the exception of Maria Kong, M.D., and Bond and Steel Clinic, P.A., are NICA participants.
Intervenor Maria Kong, M.D., is a neonatologist who rendered medical care to Luis Vazquez.
Carlos Gabriel, M.D., did not provide obstetrical services during labor, delivery, or resuscitation in the immediate postdelivery period.
Luis's birth was a single gestation, and he was born alive.
COMPENSABILITY
Statute of Limitation
The birth herein occurred on January 5, 2004. The claim was filed May 10, 2010. The claim is barred as against NICA, pursuant to section 766.313.
Injury to Luis's brain or spinal cord
by oxygen deprivation or mechanical injury occurring in the course of labor, delivery,
or resuscitation in the immediate postdelivery period
On January 5, 2004, at 2:37 a.m., Mrs. Vazquez, Luis's mother, presented to the obstetrical department at Winter Haven Hospital. Mrs. Vazquez was at 38 weeks' gestation, and she
reported to hospital staff that she had already experienced a spontaneous rupture of her membranes at approximately 2:00 a.m.
Dr. Salamon was the on-call obstetrician and was notified at Mrs. Vazquez's admission.
An examination revealed that Mrs. Vazquez was one centimeter dilated, 50% effaced, and at minus two (-2) station.
At 2:50 a.m., labor orders were received, including oral orders from CNM Nicholson, to administer low dose Pitocin, to be started at 6:00 a.m., at 6 mu and increased every 15 to 30 minutes by 2 mu to a maximum of 24 mu.
At 4:00 a.m., January 5, 2004, Mrs. Vazquez had mild- to-moderate contractions every four to five minutes. Luis's fetal heart rate was 130 to 140 beats-per-minute (BPM) with moderate long-term variability and occasional decelerations to
100 with moderate contractions and good recovery. At 5:30 a.m., mild contractions were documented every two-to-five minutes with a fetal heart rate of 120 to 130 BPM, with minimal long-term variability. A large amount of clear amniotic fluid was noted.
Throughout the morning of January 5, 2004, Pitocin was gradually increased from 6 mu at 6:00 a.m., to 40 mu at
12:15 p.m. Moderate contractions occurring every one-and-a-half to three minutes, with the contractions increasing in intensity to "moderate-to-strong" after 9:45 a.m., were noted. Throughout
the morning, the fetal heart rate (FHR) remained consistent within 120 to 140 BPM, with average long-term variability.
Fetal heart rate decelerations, signaling a problem with the baby, began three hours prior to delivery (about
3:00 p.m., on January 5, 2004) and worsened as labor progressed, as shown on the fetal heart rate monitoring strips. There was fetal tachycardia and significant variable decelerations just prior to birth.
At approximately 3:20 p.m., the mother had a strong urge to push. The cervix was still palpable on the fetal head and not reducible. The mother was positioned on her side to await complete dilation.
At 4:00 p.m., dilation was complete, and the mother was pushing. The fetal heart rate was 145-155 BPM with average long-term variability. At 5:15 p.m., variable decelerations were noted during pushing. The baby began to crown. At
5:36 p.m., there was a spontaneous vaginal delivery.
When delivered by CNM Nicholson, Luis's umbilical cord was wrapped loosely once around his neck. He had decreased tone. He was limp; not moving; made no respiratory effort; and did not cry. He required immediate gastric suctioning, bag and mask ventilation, oral oxygen, and due to respiratory distress, an endotracheal tube was placed.
At delivery, Luis suffered from hypotension,11/ which subsequently required treatment with dopamine and other pressor agents for seven days.
At 5:50 p.m., Luis was transported to the Winter Haven Hospital/Regional Medical Center Neonatal Intensive Care Unit (NICU) with continuous amubag ventilation.
Luis's Apgar12/ scores were two at one minute, two at five minutes, three at 10 minutes, three at 15 minutes and eight at 20 minutes. The more immediate scores indicate that he was depressed at birth. The longer the Apgar scores remain low, the greater the hypoxia that has occurred. It is uncommon to take an Apgar score at 15 minutes or 20 minutes. However, by 20 minutes postdelivery, Luis was on a respirator/ventilator in the NICU, so the Apgar reading at 20 minutes does not demonstrate any real improvement.
Luis's initial umbilical artery cord blood had a pH-
7.05 with a base excess of 16.6. At 6:25 p.m., his arterial blood gas had a pH of 7.105 with a base excess of -22.6. This means that he had suffered metabolic acidosis prior to his delivery to the NICU unit.
At 6:50 p.m., Luis exhibited a one-time incident of posturing movements suggestive of seizure activity.
Upon his admission to the NICU, Luis's color and circulation were poor. Immediately upon arriving at the NICU on
January 5, 2004, Luis was placed on a respirator, and this artificial respiration was continuously maintained up to, and through, his transfer to Arnold Palmer Hospital's Neonatal Unit at 12:05 a.m., on January 6, 2004. The first time Luis breathed room air was in Arnold Palmer Hospital.
Neonatologist Kong saw Luis in the NICU within an hour of birth, and testified that he was not clinically stable until removed to Arnold Palmer Hospital.
Swelling of Luis's scalp was visible on January 5, 2004. That date, MRI and CT scans were normal. However, another MRI and CT scan on January 15, 2004, showed elevated signal in the thalami, the internal capsules and parieto- occipital lobes of Luis's brain. These scans are consistent with an hypoxic ischemic event and represent a fairly classic pattern for acute hypoxic ischemic insult.
Upon discharge from Arnold Palmer Hospital, Luis's diagnosis included hypoxic ischemic encephalopathy (brain damage from lack of oxygen).
All the medical experts who testified herein agree that Luis's injuries were not the result of a genetic or congenital abnormality.
With regard to the nature and timing of Luis's brain injury, Petitioners presented the testimony of
Camille DiCostanzo, RNP, MS, NNP, specializing in neonatal care, and Robert Cullen, M.D., a pediatric neurologist.
The opinion of a neonatal nurse practitioner is not generally accorded the same weight as that of an allopathic or osteopathic physician, even if the physician is not board- certified in the same medical specialty, but here, there are other reasons to assign little weight or credibility to the testimony of Nurse DiCostanzo.
Nurse DiCostanzo testified that her specialty is not labor or delivery; that she is not familiar with how the section 766.302(2) statutory phrase, "labor, delivery, or resuscitation in the immediate postdelivery period" has been interpreted by DOAH or Florida's courts; and that she has no opinion whether an injury by oxygen deprivation occurred during the labor or delivery related to Luis. However, in her opinion, because Luis was stable on the ventilator which was breathing for him in NICU at 20-30 minutes of life, then the immediate postdelivery period had ended at that point in time. Her conclusion to that effect is directly contrary to Florida case law, which provides NICA coverage for a baby delivered in a life-threatening condition provided there are ongoing and continuous efforts at resuscitation, as there were here.13/
Dr. Cullen, a board-certified pediatric neurologist, testified on Petitioners' behalf that Luis suffered both an
hypoxic brain injury (brain injury from oxygen deprivation) during labor and delivery and a brain injury from hypocarbia (excessive carbon dioxide to the brain) while Luis was on the ventilator in the NICU. However, Dr. Cullen was unable to apportion the amount of brain injury between the hypoxic episode during labor and delivery and the brain injury due to hypocarbia which he postulated had occurred in the NICU.
NICA presented the testimony of Donald C. Willis, M.D., a board-certified obstetrician with special competence in maternal-fetal medicine. Dr. Willis has reviewed hundreds of NICA cases, and herein, he reviewed the medical records of Luis and Luis's mother. He opined, within reasonable medical probability, that Luis suffered oxygen deprivation to his brain during labor and delivery, which oxygen deprivation continued at least an hour into the immediate postdelivery period (when the first blood gas was drawn), resulting in brain injury. According to Dr. Willis, the brain injury can be timed by the significant acidosis at birth; by the worsening of the arterial blood gas base excess over the first hour of life; and by the seizure immediately after birth, which indicators form a pattern typical of newborns who have suffered hypoxic brain injury.
In short, Dr. Willis testified credibly and coherently that Luis's postdelivery course was consistent with his having
suffered an hypoxic ischemic encephalopathy during labor, delivery, or resuscitation in the immediate postdelivery period.
Dr. Michael Duchowny is a board-certified pediatric neurologist who also is familiar with the NICA statute. He examined and tested Luis on November 10, 2010. He also examined all of the pertinent medical records. He concluded, within reasonable medical probability, that Luis had suffered an hypoxic brain injury during labor and delivery, but did not render an opinion as to when the immediate postdelivery period began or ended.
Louis Halamek, M.D., a board-certified neonatologist, testified at the behest of Intervenor Kong. He concluded that Luis was not stable until after he was treated by Dr. Kong in the NICU. Therefore, Dr. Halamek opined that Dr. Kong was involved in Luis's resuscitation during the immediate postdelivery period. However, Dr. Halamek, like Nurse DiCostanzo, did not evidence any familiarity with the cases interpreting the section 776.302(2) statutory phrase "in the course of labor, delivery, or resuscitation in the immediate postdelivery period."
Drs. Cullen, Willis, and Duchowny agreed that Luis suffered hypoxic ischemic encephalopathy due to hypoxia which occurred during labor and delivery. Intervenor Dr. Kong also testified that it was her impression that when she attended him
in NICU, that Luis was experiencing neonatal encephalopathy, of which hypoxic encephalopathy is a subset and suggestive of brain injury during labor and delivery.
Dr. Halamek's testimony was presented to refute Petitioners' assertion that the brain damage to Luis occurred after the immediate postdelivery period, and because Petitioners posit that Neonatologist Kong made some error in regard to Luis's respirator/ventilator in the NICU. Legal determinations in that regard are not within the purview of this proceeding.
It is within the purview of this proceeding to find, upon the credible competent and substantial evidence presented, that at no time between his birth and his transfer to Arnold Palmer Hospital, was Luis able to survive without respiratory assistance of some kind, and further to find his brain injury occurred during labor, delivery and/or resuscitation in the immediate postdelivery period in Winter Haven Hospital's delivery room and NICU.
Luis's permanent and substantial mental and physical impairment
Although the other parties proposed that Petitioners had conceded in their Second Amended Petition that Luis is permanently and substantially physically impaired, Petitioners' post-hearing filings do not concede that point.
Be that as it may, and even though, in this case, the burden of proof to establish that Luis is permanently and substantially mentally and physically impaired rests upon Respondent and Intervenors, the record affirmatively demonstrates that Luis is permanently and substantially physically impaired and permanently and substantially mentally impaired, as more fully described hereafter.
Examinations by pediatric neurologists, Dr. Cullen on January 30, 2009, and Dr. Duchowny on November 10, 2010, provided competent substantial evidence that Luis is suffering from, and will always suffer from, cerebral palsy. He also suffers from quadripariparesis. His four limbs are spastic. His trunk is unstable. He was not toilet trained until age five, and at seven years of age, he still has accidents.
As of Dr. Cullen's examination on January 30, 2009, (Luis's age five) and as of Dr. Duchowny's examination on November 10, 2010 (Luis's age of almost seven), Luis could not walk to any meaningful extent, and needed to use a wheelchair or braces to ambulate at all. At most, by age seven, he could walk only two steps together. Upon the evidence of the expert pediatric neurologists, it is found that this situation with regard to ambulation will not change significantly. In light of the foregoing, Luis's mother's and father's testimony that as of the date of the 2011 hearing, Luis uses a wheelchair only to get
to the school bus, and the mother's testimony that Luis walks throughout their house wearing his braces, has been interpreted as loving exaggeration.
Luis has repeatedly been treated for seizures and will probably continue to need anti-seizure medicines for the rest of his life. His life expectancy is diminished to approximately 50 years by his several disabilities.
Dr. Cullen had not seen Luis since 2009, but based on what he knew then and a review of Dr. Duchowny's 2010 report, Dr. Cullen was of the opinion that Luis has a deficit in expressive and receptive language, cognitive delay, and spastic quadriparesis, and that Luis will always have significant motor impairment and cognitive deficits which will impact his employability, rendering him unemployable. In terms of mental achievement, Dr. Cullen believes that Luis will always function with some cognitive defects and will be classified as mildly retarded.
Dr. Cullen declined to characterize Luis's permanent deficits as "substantial," preferring to call them "significant," but this is a distinction without a difference, based on Dr. Cullen's personal concept that because he has seen other children with worse defects (mostly physical) qualify for NICA benefits, because Luis is not so severely impaired as those NICA-accepted children, and because Luis has made the most
minimal of improvements in one year, Luis is not "substantially" impaired. Despite Dr. Cullen's reluctance to use the term, "substantially physically and mentally impaired," that is what his evidence reveals. As to the permanency of Luis's condition, Dr. Cullen agreed that Luis will not be able to live independently and will need people to manage his financial affairs. Luis will require the care of a neurologist in the future, and also physical, occupational, and speech therapy.
Luis will always have motor and mental deficits, including dependant ambulation.
The evidence as a whole shows that Luis has never met any of his developmental milestones in a timely manner.
On his 2010 examination by Dr. Duchowny, Luis's head circumference showed him to be microcephalic. (His head is too small for his body.) His fontanels were closed, so it is unlikely that his skull and brain will continue to grow. Luis exhibited a sucking response which only comes out when there is a paralysis of motor outflow for voluntary movement. His higher motor function is compromised. None of these features is likely to improve. At that point, Luis could only feed himself using a spoon and did not have the dexterity to use a knife or fork.
The school records in evidence are sparse and stale, and apparently Luis was due for re-evaluation by his school's Exceptional Student Education (ESE) program in 2011, but in the
2009 records in evidence, educators noted that an alternative communication system (other than speaking) should be considered for Luis.
Apparently, Luis's school administered four ESE evaluations on or about May 26, 2009: Bates, Vineland Adaptive Behavior Skills, DLS Domain, and Brigance Inventory of Early Development. One conclusion regarding the Bates review was, "In the cognitive area, Luis was successful on most items up to the 25-28 month level but was unable to complete most tasks at that level." On the Vineland Adaptive Behavior Skills portion, there is a notation that Luis could listen to a story for 30 minutes but was not able to listen to an informational talk for 15 minutes. Regarding the DLS Domain, there is a notation that Luis could use a fork with some spillage. On the Brigance scale, Luis was rated at the seven months' level for some activities; the 15 months' level for pointing to what he wants; and at the 12 months' level for fine motor skills.
Even though the 2009 school assessment documents in evidence state that in 2009, Luis could, contrary to
Dr. Duchowny's assessment a year later, use a fork "with minimal spillage," the undersigned has not assessed the two evaluations as a deterioration between 2009 and 2010 in Luis's ability to use a fork. If anything, it is merely a variation on different
types of assessment on different days, but it does not evidence any improvement over the intervening period.
The mother testified that current with the 2011 date of hearing, Luis could "eat anything," but this is an anecdotal assessment and does not, in the face of the expert evidence, demonstrate that Luis now can consistently and safely feed himself with a fork or manage the activities of daily living.
Giving the benefit of the doubt to the parental testimony concerning Luis's condition immediately before the 2011 date of hearing, to the effect that Luis had added about 25 words to the 25-word vocabulary he evidenced when examined by Dr. Duchowny in 2010, such a limited (50+ words) vocabulary in a child almost eight years old is still woefully inadequate to demonstrate normalcy of either the ability to learn or the mental facility to retain information. Even so, there is no clear evidence that Luis can, today, pronounce these 50 words clearly, although he attends school, spending some time in a regular class and some time in an ESE class to assist him with speaking and counting.
The parents testified that Luis currently likes to read books and play cards, but there is no competent evidence that he is doing more than looking at the pictures in the book or on the cards.
Apparently, in 2009-2010, Luis could only count to eight, and he can now count to ten. He can now recognize letters, and say them with prompts, but he cannot recite the alphabet.
The parents' testimony that Luis currently is able to say some words in Spanish, which is the family's primary language; play computer games and games on a cell phone; and reprogram a cell phone ring tone does not overshadow the foregoing evidence and expert testimony that Luis's cognitive abilities are permanently and substantially impaired.
Herein, the undersigned has not been afforded the benefit of testimony from expert educators interpreting their tests other than as written; a view of, or testimony by, the child, Luis; or any other evidence that would reasonably support a finding that Luis is "cognitively intact." See Fla. Birth- Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin.
Hearings, 686 So. 2d 1349 (Fla. 1997); Adventist Health System/Sunbelt, Inc. v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 865 So. 2d 561 (Fla. 5th DCA 2004).
Therefore, upon the expert and lay testimony and the evidence as a whole herein, it must be found that Respondent and Intervenors have demonstrated that Luis will not be able to translate his cognitive capabilities into adequate learning in a normal manner and that his vocational, as well as his day-to-day
coping skills are impaired as a result of his brain injury which occurred during the statutory period. It appearing that the assistance that Luis will always require will have to address, or make-up for, his profound mental deficits as well as his physical deficits, it also must be concluded that Luis is permanently and substantially mentally impaired, as well as permanently and substantially physically impaired.
Viewing the record as a whole, it is resolved that Luis suffered oxygen deprivation to the brain during labor, delivery, and/or resuscitation in the immediate postdelivery period in a hospital, which resulted in permanent and substantial mental impairment as well as permanent and substantial physical impairment.
Where a claim is found non-compensable, the issue of notice by the participating health care providers (hospital and obstetricians) is rendered moot. Where, as here, a claim is found compensable, Petitioners may only proceed against those participating health care providers who have failed to give appropriate pre-delivery notice.14/
Pre-delivery Notice
Section 766.316, provides:
Notice to obstetrical patients of participation in the plan.--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 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.[15/]
The formation of the provider/obstetrical patient relationship triggers the obligation to furnish notice. The determination of when this relationship commences is a question of fact. Once the relationship commences, the law implies that the notice must be given within a reasonable time. This determination depends upon the circumstances, but a central consideration should be whether the patient received the notice in sufficient time to make a meaningful choice of whether to select another provider prior to delivery, which is a primary purpose of the notice requirement. Pre-registration is an appropriate time for such notice to be given. See Galen of Fla., Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997); Tarpon Springs Hosp. Found., Inc. v. Anderson, 34 So. 3d 742 (Fla. 2d
DCA 2010); and Weeks v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 977 So. 2d 616 (Fla. 5th DCA 2008).
Luis's mother, Mrs. Vazquez, received all her pre- natal care with regard to Luis at the County Health Department. None of the health care providers herein are associated with the County Health Department.
The mother presented to Winter Haven Hospital, Inc., d/b/a Winter Haven Hospital, Regency Medical Center on December 15, 2003, December 29, 2003, January 2, 2004, and finally January 5, 2004, Luis's birth date.
Luis was delivered by Tonya Blankenship Nicholson, CNM, at Winter Haven Hospital/ Regency Medical Center on January 5, 2004. At all times material, Certified Nurse Midwife Nicholson was operating under a properly filed cooperative care plan/protocol/plan of treatment that named Drs. Carlos Gabriel and Eva Jennifer Salamon as her supervising obstetricians, and which permitted CNM Nicholson to administer Pitocin and perform vaginal deliveries.
The physician responsible for supervising
Tonya Nicholson at Winter Haven Hospital/Regency Medical Center, on January 5, 2004, was Eva Jennifer Salamon, M.D., who was the "on call" obstetrician at that time.
At all times material, Dr. Gabriel, Dr. Salamon, and Nurse Nicholson were associated with the Bond and Steele Clinic,
P.A., d/b/a The Bond Clinic. The Bond Clinic is a private corporation; is not a hospital; is not a "participating physician" as that term is defined by sections 766.301-766.316; did not provide any prenatal care to Luis's mother; and, as a separate entity from its participating physicians, is not required to give notice pursuant to section 766.316.
Likewise, because no physician associated with the Bond Clinic, including but not limited to Dr. Gabriel, Nurse Nicholson, and Dr. Salamon, provided any private prenatal care to the mother in this case, through the Bond Clinic or otherwise, none of the Bond Clinic's professionals had any opportunity, independent of their "on call" status at Winter Haven Hospital, to provide pre-delivery NICA notice to the mother.
Carlos Gabriel, M.D., was a participating physician in the NICA Plan in 2004. He did not provide obstetrical services to Luis or Luis's mother during labor, delivery, or resuscitation in the immediate postdelivery period. In fact, he has never had contact of any kind with either of them. Therefore, he was not required to give pre-delivery notice of NICA participation to Luis's mother. See Findings of Fact 10, 86, and 93.
Eva Jennifer Salamon, M.D., was a participating physician in the NICA Plan in 2004. She did not provide individual pre-delivery notice to the mother.
Winter Haven Hospital, Inc., d/b/a Winter Haven Hospital and Regency Medical Center, was a hospital participating in the NICA Plan in 2004.
There seems to be some dispute as to whether or not Winter Haven Hospital, d/b/a Winter Haven Hospital, Regency Medical Center was a "teaching hospital" as contemplated by section 766.309 (1)(b). Dr. Gabriel testified that "to his knowledge," neither Winter Haven Hospital nor Regency Medical Center was considered a teaching hospital. However, among the exhibits in evidence is a January 13, 2004, "Notice of Limited Liability," signed by Ms. Vazquez in the emergency room, a week or so after Luis's birth, disclosing that,
All or part of the medical care and treatment at Winter Haven Hospital, including its Emergency Department, may be provided by the University of Florida Board of Trustees' employees and/or agents . . . who are under the exclusive supervision and control of the University of Florida Board of Trustees,
and
Winter Haven Hospital provides to the University of Florida Board of Trustees a clinical setting for health care education, research, and/or services.
Probably, Winter Haven Hospital's arrangement with the University of Florida, primarily for Winter Haven's emergency room's staffing, would not render Regency Medical Center a "teaching hospital," but it is not necessary to resolve that issue, because there are two paths to invoking NICA coverage for certified nurse midwives. It may either be proven, under section 766.309(1)(b) that "obstetrical services were delivered
. . . 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," or it may be proven by establishing, pursuant to section 766.314(4)(c), that the certified nurse midwives, themselves, are deemed "participating physicians."16/
Here, it has been established that Tonya Blankenship Nicholson, CNM, had paid her NICA fee as a CNM and was a NICA participant in 2004, the year of Luis's birth; that she had the appropriate protocols/plan of care in place; and that she was reporting to a participating physician (Dr. Salamon) who also had paid the NICA assessment. See Findings of Fact 2-3, 8, 14, 22, 69-70. Therefore, in 2004, Ms. Nicholson was qualified, in her own right, as a "participating physician" under the NICA Plan.
Nurse Nicholson also did not provide individual pre- delivery notice to Ms. Vazquez.
Maria Kong is a neonatologist and not an obstetrician.
Accordingly, she was not a NICA Plan participant at any time material to this case; was not required to give pre-delivery notice of NICA participation to Luis's mother17/; and did not do so.
Mrs. Vazquez, Luis's mother, does not read or write English. Her native language is Spanish.
Sometime in December 2003, after receiving all her prenatal care at the County Health Department, Mrs. Vazquez decided she would deliver at Winter Haven Hospital.
Intervenors herein assert that appropriate pre- delivery notice of NICA participation was given to Mrs. Vazquez on behalf of the hospital and all NICA participants on
December 15, 2003.
Mrs. Vazquez testified that she never received a NICA brochure explaining the program, an explanation of the NICA program, or the name of the doctor who would deliver her baby, and that she never signed an acknowledgment showing that she had received a NICA brochure.
However, despite some equivocation, Mrs. Vazquez also
identified her signature on a Spanish-language NICA form, dated December 15, 2003, acknowledging her receipt of the NICA brochure which explains the NICA Plan, and demonstrated that she was able to read what she had signed.
Translated into English, the December 15, 2003, form which the mother signed, reads:
I was provided by the Winter Haven Hospital, Inc. information prepared by the Florida Birth Related Neurological Injury Compensation Association, and I was advised that [Dr. Gabriel] is a participating Doctor in this program and that some compensation is available in case neurological damages do occur during the labor or the resuscitation. To know more about this program, I understand that I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA) to write: Florida Birth Related Neurological Injury Compensation Association, Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, or can call: (904) 488-8191. Also, I certify that I am in receipt of a copy of the brochure prepared by NICA. (bracketed material filled in)(emphasis added)
In December 2003, Winter Haven Hospital/Regency Medical Center required that obstetrical pre-registrations be by appointment only. It also was hospital policy and standard practice to schedule pre-registrations of Spanish-speaking mothers for a day-time slot when a translator (interpreter) would be available to assist them and to give NICA notice on behalf of the hospital and its on-call physicians.
Hospital records indicate that on the evening of December 15, 2003, Luis's mother was only at Winter Haven Hospital from 10:12 p.m. to 11:15 p.m., and that she was there complaining of a cough, sore throat, abdominal pain, and pain in
the lower legs. Therefore, her presence on December 15, 2003, was not a pre-arranged pre-registration, but was a first visit for medical treatment associated, at least partially, with her pregnancy.
The evening of December 15, 2003, Wanda Colon né Hernandez, was scheduled to work from 7:00 p.m. to 5:00 a.m. Ms. Hernandez (married name: Wanda Colon) testified that her sole duty was to translate English to Spanish and Spanish to
English for patients and health care providers. On December 15, 2003, Ms. Hernandez was paged by Karen Eyrich, a nurse assigned to Mrs. Vazquez. When Ms. Hernandez arrived at the room,
Mrs. Vazquez was in the restroom and Nurse Eyrich was awaiting her.
Based on the time of night that was documented on other forms signed by Mrs. Vazquez on December 15, 2003, the contemporaneous notes of Nurse Eyrich, the medical records for that date, and the clear, logical, consistent, and credible testimony of Ms. Hernandez, it is found that Ms. Hernandez translated for Mrs. Vazquez and medical personnel on that visit, and that the Spanish language form whereby Mrs. Vazquez acknowledged receiving an explanation of NICA was signed by
Mrs. Vazquez and was witnessed by Ms. Hernandez at approximately 10:35 p.m.
Receipt of the brochure prepared by NICA constitutes sufficient pre-delivery notice on behalf of a hospital or other health care provider.18/
Herein, the mother denied that a Spanish language translator was present when she signed the foregoing acknowledgment, but that is of little import since it was in her native Spanish; the mother was/is able to read Spanish; and the mother identified her own signature on the form. See Finding of Fact 85. Even so, Ms. Hernandez is credible that she was present and that she witnessed Mrs. Vasquez sign the NICA acknowledgment on December 15, 2003, as well as sign other hospital documents that amounted to pre-registration for Luis's birth, and that this procedure was followed that night, because it was then hospital policy that if a pregnant patient presented with a medical problem, that patient was to be pre-registered at that time.
Ms. Hernandez is also credible that the line on the acknowledgment form for the physician's name was blank when she and Mrs. Vazquez signed the NICA notice form and that
Dr. Gabriel's name appears on the NICA notice form purely because he was the on-call obstetrician on December 15, 2003, and his name was "filled-in" by someone in the hospital admitting office after Mrs. Vazquez and Ms. Hernandez signed the acknowledgment form. This subsequent "fill-in" of Dr. Gabriel's
name by the hospital's administrative office may reasonably account for the mother's testimony that the form she signed "was blank" and that she was never told who would deliver her baby, but it does not explain why she signed the acknowledgment if she did not receive the brochure explaining NICA.
Contrary to Mrs. Vazquez's vague and uncorroborated testimony that she had come to the hospital to pre-register earlier in the day and had been told over the phone to "just sign" all forms, the competent and substantial evidence supports a finding that her unscheduled hospital visit late in the evening of December 15, 2003, was her only appearance at the hospital that day, and that the hospital's first opportunity to give notice of NICA participation on its own behalf and on behalf of its on-call physicians occurred at that time.19/
Contrary to the mother's equivocal version of events, the testimony of Ms. Hernandez, whose signature appears on the December 15, 2003, notice acknowledgment form as a "witness" (in Spanish, "testigo") to the mother's signature, together with Ms. Hernandez's contemporaneous writing-in of the date and the information that the patient had no social security number, is the more logical, consistent, and credible.
In support of Ms. Hernandez's testimony are contemporaneous notes, probably made by Nurse Eyrich, in Mrs. Vazquez's hospital records for December 15, 2003,
memorializing that there was a "Wanda Hernandez interpreter at bedside" and that the patient "verbalized understanding" of the discharge instructions.
Reminded in part by the acknowledgment form,
Ms. Hernandez testified credibly and with considerable recall, as described above, with regard to specifics of her encounter with Mrs. Vazquez on December 15, 2003, such as the date and time; as to herself being paged; as to Mrs. Vazquez initially being in the restroom when Ms. Hernandez arrived; as to how Ms. Hernandez affixed her signature witnessing Mrs. Vazquez's signature on the NICA acknowledgment form; as to how
Dr. Gabriel's name got on the acknowledgment form; and as to how her own signature appeared as a witness on other documents also signed by Mrs. Vazquez on December 15, 2003, such as a consent for treatment form.
Ms. Hernandez also testified clearly and credibly concerning the standard disclosure and signature routine for giving NICA notice, in which routine the hospital had trained her, and also testified clearly and credibly concerning her own standard practice of implementing that required routine. Altogether, her testimony is admissible, logical, competent, and credible.20/
However, as might be expected, even with the additional signed paperwork and the notice form signed by both
herself and Mrs. Vazquez to refresh her recollection,
Ms. Hernandez had no present, independent memory, after seven intervening years, of her exact conversation with Mrs. Vazquez or of Mrs. Vazquez's physically signing the acknowledgment of the NICA notice and brochure.
However, Ms. Hernandez was credible as to her usual, customary, and standard procedure for explaining NICA to Spanish-speaking patients, and that she was sure she had followed that procedure with Mrs. Vazquez on December 15, 2003.
Ms. Hernandez testified credibly that, as part of hers and the hospital's standard practice and routine(s) in 2003, she would hand Spanish-speaking expectant mothers the hospital's standard paperwork, and explain in Spanish each part of that paperwork. The NICA acknowledgment form was about two pages into it. Ms. Hernandez routinely asked Spanish-speaking mothers to read the Spanish-language NICA acknowledgment form and then told them that both the hospital and all the physicians (obstetricians) on-call were NICA "participant providers." She next asked the Spanish-speaking mothers if they had any questions and would answer their questions as best she could. If, at that time, they had any further questions which she could not answer, she would call elsewhere in the hospital for more information or she would routinely tell the mothers to call the phone numbers on the acknowledgment form. Ms. Hernandez
routinely asked the expectant mother to read the form before signing it, and then Ms. Hernandez would sign and date the acknowledgment form as a witness to the mother's signature on the acknowledgment form.
Ms. Hernandez further testified that her standard procedure would be to sign as a witness only after she had actually observed the expectant mother sign. After the patient had signed the acknowledgment form, Ms. Hernandez would hand the mother the Spanish version of the NICA brochure, "Peace of Mind for an Unexpected Problem" and a copy of her signed acknowledgment of notice. Ms. Hernandez believed that she followed her standard procedure with Mrs. Vazquez on
December 15, 2003. Altogether, this testimony was likewise logical, competent, and credible.21/
Therefore, the greater weight of the credible evidence shows Mrs. Vazquez did not attempt to pre-register earlier on December 15, 2003, and that her visit with some pregnancy-related complaints the evening of December 15, 2003, was the first opportunity the hospital had to give NICA notice on behalf of itself and on behalf of its on-call physicians. The greater weight of the evidence also shows that on that single evening visit, Mrs. Vazquez signed the acknowledgment of receiving NICA notice from the hospital and all its on-call physicians as described by Ms. Hernandez, who witnessed these
events and that Mrs. Vazquez also received the explanatory NICA brochure at that time. There is no requirement that the names of the participating physicians be set forth in a written notice. Jackson v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 932 So. 2d 1125 (Fla. 5th DCA 2006). The NICA "Peace of Mind" brochure also has been held to satisfy the legislative mandate of providing a "clear concise explanation of a patient's rights and limitations under the [NICA] plan." Dianderas v.
Fla. Birth-Related Neurological Injury Comp. Ass'n, 973 So. 2d
523 (Fla. 5th DCA 2007).
On December 15, 2003, Luis's mother was not seen or treated by any of the health care providers involved in this case.
On December 29, 2003, Luis's mother presented to the hospital with complaints of contractions. She was evaluated and sent home. She was not seen by any of the providers involved in her labor, or in Luis's delivery or resuscitation on January 5, 2004.
On January 2, 2004, Luis's mother presented to the hospital with complaints of no fetal movement. She was again evaluated and sent home. The physician/CNM listed on her records for that date is "T. Nicholson." Based on the exhibits related to this date, Mrs. Vazquez's visit appears to have
resulted in a triage in the emergency room and a release home with instructions in Spanish.
On January 5, 2004, Luis's mother presented to the hospital after her membranes had already ruptured spontaneously, and Luis was born, as more fully described above.
Given the credible evidence as a whole, it must be concluded that the evening of December 15, 2003, was the first opportunity that the hospital had to give notice to Mrs. Vazquez of its participation and the participation of its on-call physicians in the NICA Plan, and that on December 15, 2003,
Mrs. Vazquez received statutorily compliant pre-delivery notice of NICA participation by the hospital for itself and by the hospital on behalf of all its on-call participating physicians. Inasmuch as appropriate notice was given at the first opportunity/visit on December 15, 2003, it was not necessary to give repeated notice on December 29, 2003, January 2, 2004, or January 5, 2004. Moreover, pursuant to the provisions of section 766.316 and section 395.002(9)(b), incorporated therein, once the mother's membranes were ruptured on January 5, 2004, an emergency medical condition existed. See Finding of Fact 65.
In making the foregoing finding of fact, the undersigned has not ignored Petitioners' argument that although the hospital may have given notice of Dr. Gabriel's NICA participation, the acknowledgment form signed by Mrs. Vazquez on
December 15, 2003, does not specifically state that the hospital is a NICA participant and does not specifically name each of the health care providers in this case, notably Dr. Salamon and CNM Nicholson, who were involved in labor, delivery, or resuscitation in this case. However, section 766.316 provides that, "Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met." With or without that presumption, Ms. Hernandez's clear, credible testimony that she gave a contemporaneous oral explanation stating that "the hospital and all on-call physicians are participant providers in NICA" and that she handed Mrs. Vazquez the explanatory brochure published by NICA, it is more likely than not that on
December 15, 2003, Mrs. Vazquez received appropriate notice for the hospital and for all on-call physicians, including
Dr. Salamon. Inasmuch as CNM Nicholson qualified as a "participating physician" in her own right and was reporting to Dr. Salamon on the date of Luis's birth, pursuant to an appropriate pre-filed collaborative practice agreement/plan of care/protocols, which permitted her to administer Pitocin and perform vaginal deliveries, see Finding of Fact 78, it is also concluded that notice of CNM Nicholson's NICA participation was subsumed in the hospital's December 15, 2003, notice of NICA participation for itself and its on-call physicians, which date
afforded the first opportunity that the hospital or any other health care provider involved in this case had to provide NICA notice to Mrs. Vazquez.
Consequently, it follows that Mrs. Vazquez could have, at any time during the 21 days between notice on December 15, 2003, and delivery on January 5, 2004, contacted NICA for more information or selected another hospital and/or physicians for her labor and delivery.
Therefore, it has been established that lawful pre- delivery notice was given by Winter Haven Hospital, d/b/a Winter Haven Hospital, Regency Medical Center, Dr. Salamon, and CNM Nicholson, and that the other Intervenors had no statutory duty to provide such notice.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. §§ 766.301-766.316, Fla. Stat.
However, as a threshold jurisdictional issue, this cause, as against NICA, is barred by section 766.313. Section 766.313, provides that: "[a]ny claim for compensation under ss. 766.301-766.316 that is filed more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred."
It is an undisputed fact that Luis was born
January 5, 2004, and that the claim/petition herein was filed at DOAH on May 10, 2010. The claim is barred, and Respondent NICA is entitled to a final order which resolves that, notwithstanding that the claim may be compensable, and notwithstanding that Petitioners allege the claim is not
compensable, Petitioners may not pursue or recover an award of benefits under the Plan.
However, since Plan immunity may be a viable defense to a civil suit and the Administrative Law Judge has exclusive jurisdiction to resolve whether a claim is compensable, it is necessary to resolve whether the claim is compensable and whether appropriate pre-delivery notice was given by the health care providers.22/
The Florida Birth-Related Neurological Injury Compensation Plan was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring after January 1, 1989. § 766.303(1), Fla. Stat.
The injured infant, her or his personal representative, parents, dependents, and next of kin, may seek compensation under the plan by filing a claim for compensation with the Division of Administrative Hearings. §§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. The Florida Birth-
Related Neurological Injury Compensation Association, which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and submit relevant written information relating to the issue of whether the injury is a birth-related neurological injury."
§ 766.305(4), Fla. Stat.
If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Administrative Law Judge to whom the claim has been assigned. § 766.305(7), Fla. Stat. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Administrative Law Judge in accordance with the provisions of chapter 120, Florida Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.
In discharging this responsibility, the Administrative Law Judge must make the following determinations based upon 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. 766.302(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.
Section 766.314(4)(c) defines a certified nurse midwife who has paid her own NICA fee as a "participating physician" as follows:
. . . Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised by a participating physician who has paid the assessment required by this paragraph and paragraph (5)(a). Supervision for nurse midwives shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features. . . .
An award may be sustained only if the Administrative Law Judge concludes that the "infant has sustained a birth- related neurological injury and that obstetrical services were delivered by a participating physician at birth." § 766.31(1), Fla. Stat.
Pertinent to this case, "birth-related neurological injury" is defined by section 766.302(2), to mean:
Injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders an infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.
Both the brain injury and the oxygen deprivation that renders the child permanently and substantially mentally and physically impaired must occur during the statutory period.
See § 766.302(2), Fla. Stat. See also Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828 (Fla. 2011); Nagy v. Fla. Birth- Related Neurological Injury Comp. Ass'n, 813 So. 2d 155 (Fla.
4th DCA 2002).
Section 766.309(1)(a), provides:
Whether the injury claimed in 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. 766.302(2).
Petitioners, as is their right, elected against invoking the presumption of compensability. See Bennett v. St. Vincent's Med. Ctr., Inc., supra. However, Respondent and Intervenors have borne their burden of proof to establish that Luis suffered an injury to his brain caused by oxygen deprivation occurring in the course of labor, delivery, and/or resuscitation in the immediate postdelivery period in a hospital, while in the care of participating physicians, which rendered him permanently and substantially mentally and physically impaired. See Fla. Birth-Related Neurological
Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 686 So. 2d 1349 (Fla. 1997); Humana of Fla., Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995), approved, Fla. Birth-Related
Neurological Injury Comp. Ass'n, 668 So. 2d 974, 979 (Fla. 1996).
Moreover, Intervenors have carried their burden of proof to establish that appropriate pre-delivery notice was provided by all Intervenors required to give pre-delivery notice, pursuant to the terms of section 766.316.
CONCLUSION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:
Although it has been determined that the claim is compensable and that appropriate pre-delivery notice was given by all Intervenors required by law to do so, the claim was filed against the Florida Birth-Related Neurological Injury Compensation Plan beyond the applicable statute of limitations.
There is no reason to retain jurisdiction for any purpose.
The claim of Armando Payas, Esquire, as guardian ad litem and trustee for Luis Vazquez, a minor, and Teresa Vazquez and Rigoberto Vazquez individually, is dismissed with prejudice.
DONE AND ORDERED this 24th day of February, 2012, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2012.
ENDNOTES
1/ Only those pleadings and orders necessary to an understanding of this cause are described in this Final Order.
2/ The Petition and all Amended Petitions herein were filed "under protest" because Petitioners opposed a circuit court's abatement of a medical malpractice action until NICA issues were addressed before DOAH; because Petitioners allege they do not qualify for NICA benefits on grounds that the Intervenors failed to provide pre-delivery notice of NICA participation as required by section 766.316; because Petitioners allege that the injury to Luis did not occur during the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital, as required for compensability by section 766.302(2); because Petitioners' allege that the injuries sustained by Luis do not amount to a permanent and substantial mental and physical impairment, as required for compensability by section 766.302(2); and/or for constitutional reasons.
This Final Order does not address Petitioners' dissatisfaction with the circuit court abatement or the constitutional issues raised by Petitioners. DOAH does not have jurisdiction to determine a statute unconstitutional. Fla. Hosp. v. Ag. for Health Care Admin., 823 So. 2d 844, 849 (Fla. 1st DCA 2002); Palm Harbor Special Fire Control Dist. v. Kelly, 516 So. 2d 249 (Fla. 1987) (an administrative agency has no power to declare a statute void or otherwise unenforceable), Cf.-- Samples v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 40 So. 3d 18 (Fla. 5th DCA 2010), currently before the Florida Supreme Court, (holding the NICA statute constitutional). DOAH also does not have jurisdiction to review an Article V circuit court's order of abeyance; or to determine "immunity" from a lawsuit in circuit court. Immunity is within the exclusive jurisdiction of the circuit court. Anderson v. Helen Ellis Mem. Hosp. Found., Inc., 66 So. 3d 1095 (Fla. 2d DCA 2011); All Children's Hosp.
Inc. v. Dep't. of Admin. Hearings, 863 So. 2d 450, 455 (Fla. 2d DCA 2004), quashed on other grounds by Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 948 So. 2d 705, 716-717 (Fla. 2007); Depart v. Macri, 902 So. 2d
271 (Fla. 1st DCA 2005); Gugelmin v. Div. of Admin. Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002).
Petitioners' other "protests," ("compensability" and "notice"), are within the exclusive jurisdiction of DOAH and are addressed herein. See O'Leary v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 757 So. 2d 624 (Fla. 5th DCA 2000).
3/ See Finding of Fact 12, and Conclusions of Law 113-114. (Statute appears at Conclusion of Law 113.)
4/ It is an undisputed fact that Luis was born on January 5, 2004, and that the claim/petition was filed at DOAH on May 10, 2010. The claim is barred, and Respondent NICA is entitled to a final order which resolves that, notwithstanding that the claim may be compensable, and notwithstanding that Petitioners allege the claim is not compensable, Petitioners may not pursue or recover an award of benefits under the Plan.
However, in Green v. Fla. Birth-Related Neurological Injury Comp. Ass'n and Henricks et al., Case No. 02-2213N (Fla. DOAH Apr. 24, 2003), per curiam aff'd, Green v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 871 So. 2d 223 (Fla. 2d DCA 2004), an Administrative Law Judge ruled that he was obligated to determine compensability even though the statute of limitations barred Petitioners' NICA claim so that Petitioners could not pursue or recover an award of benefits from NICA. To the same effect, see Najera v. Fla. Birth-Related Neurological Injury Comp. Ass'n, Case No. 11-3402 (Fla. DOAH Dec. 19, 2011), currently on appeal before the Florida Third District Court of Appeal; Expositio v. Fla. Birth-Related Neurological Injury Comp. Ass'n, Case No. 10-10320N (Fla. DOAH May 20, 2011),
currently on appeal before the Florida Third District Court of Appeal; Bautista v. Fla. Birth-Related Neurological Injury Comp. Ass'n, Case No. 10-3208N (Fla. DOAH Dec. 17, 2010); Romero v. Fla. Birth-Related Neurological Injury Comp. Ass'n, Case No. 05-1901N (Fla. DOAH Aug. 31, 2005); and Foott v. Fla. Birth- Related Neurological Injury Comp. Ass'n, Case No. 02-4344N (Fla. DOAH Aug. 11, 2003).
The ruling in Green was based, in part, upon the participation in that case of intervenors seeking to determine the "notice" issue, and a per curiam affirmance has no precedential value. However, NICA is a cumbersome statute because it presumes that parents will always seek to prove NICA compensability in order to collect from the Association the limited "no fault" benefits provided therein. However, parents more often seek to "opt out" of NICA so as to obtain presumably greater monetary benefits via a circuit court action, and they cannot do so until "notice" and "compensability" issues are decided before DOAH. Frequently, a case which could never have supported a NICA claim, because the infant's birth weight was under the statutory minimum (2,500 grams); because the birth damage did not affect the infant's brain or spinal cord; or for some other reason, first appears in circuit court and is not abated there until after NICA's statute of limitation has run. The present case does not represent such a simple situation.
See the cases cited at n. 2, above, on the issues of compensability and notice being exclusively within DOAH's jurisdiction and immunity from suit being exclusively within the circuit court's jurisdiction, particularly Najera v. Fla. Birth- Related Neurological Injury Comp. Ass'n, supra, which contains a listing and discussion of the overlapping interests/statutes in the several types of circuit court action.
5/ See Depart v. Macri, Gugelmin v. Div. of Admin. Hearings, and O'Leary v. Fla. Birth-Related Neurological Injury Comp.
Ass'n, at n. 2.
6/ See § 766.309(1)(a); Finding of Fact 45, and Conclusions of Law 124-125.
7/ See § 766.316; Finding of Fact 65, and Conclusion of Law 126.
8/ This case was scheduled for final hearing multiple times, but was repeatedly continued for the reasons reflected in the intervening orders.
9/ Due to the oddities of the Bates-stamping of different items with the same page numbers; the transmittal of after-filed exhibits; mis-pagination within the transcript's table of contents, and the sealed proffer, this endnote will describe the evidence in greater detail than would normally be necessary.
ALJ A: Joint Prehearing Stipulation interlineated by ALJ at hearing.
Notebooks I-IV:
Volume I, part 1 of 4:
Joint Exhibit 1 (Jt-1) Winter Haven Hospital/Regency Medical Center records of Teresa Vazquez for 1/5/2004 admission (Bates 0001-0103); Jt-2 Winter Haven/Regency Medical Center records of Luis Vazquez for 1/5/2004 admission (Bates 0104-0181); Jt-3 Winter Haven Hospital/Regency Medical Center records of Teresa Vazquez for 12/15/2003 (Bates 0182-0186); Jt-4 Winter Haven Hospital/Regency Medical Center records of Teresa Vazquez for 12/29/2003 (Bates 0187-0190); Jt-5 Winter Haven Hospital/Regency Medical Center records of Teresa Vazquez for 1/2/2004 (Bates 0191-0194); Jt-6 Winter Haven Hospital/Regency Medical Center records of Teresa Vazquez for 1/13/2004 (Bates 0195-0283); Jt-7 Fetal Heart Monitoring Strip 1/5/2004 (Bates 0284-0403); Jt-8 Luis Vazquez's Medical Records: Arnold Palmer Hospital (Bates
0404-0412); Jt-9 Bartow County Health Department Prenatal Medical Records of Teresa Vazquez (Bates 0413-0457); Jt-10 Luis Vazquez's Medical Records: All Children's Hospital Records (Bates 0458-0460) [see TR pages 20-21.]; Jt-11 Luis Vazquez's Radiological Films (Bates 0461-0463); Jt-12 Luis Vazquez's Shriners Hospital Records (Bates 0464-0477); Jt-13 Luis Vazquez's Pediatric Neurology Records (Bates 0478-0482).
Volume II, part 2 of 4:
Jt-14 Luis Vazquez's Kids Neurology Records (Bates 0483-0553); Jt-15 Luis Vazquez's Lakeland Regency Medical Center Records (Bates 0554-0697); Jt-16 Luis Vazquez's Medical Records from Ricardo Arguello, M.D. (Bates 0699-0905) [0698 transmitted later to DOAH].
Volume III, part 3 of 4:
J-17 Luis Vazquez's medical records from Bartow Memorial Hospital (Bates 0906-0970); Jt-18 Luis Vazquez's medical records from Family Care ENT (Bates 0971-1006); Jt-19 Luis Vazquez's medical records from Pediatric Therapy Services (Bates 1007- 1131); Jt-20 Petitioners' Answers to Respondent's and Intervenors' Interrogatories (Bates 1132-1158); Jt-21 all entries for school records of Luis Vazquez (Bates 1159-1189); Jt-22 Deposition of Duchowny, M.D. (Bates 1190-1276); Jt-23 Deposition of Rigoberto Vazquez (Bates 1277-1297); Jt-24
Deposition of Teresa Vazquez with attached exhibits (Bates 1298- 1324); Jt-25 Deposition of Wanda Colon né Hernandez with attached exhibits (Bates 1325-1356); Jt-26 Deposition of
Donald Willis, M.D., with exhibits (Bates 1357-1407).
Volume IV, part 4 of 4: Jt-27 Deposition of Carlos Gabriel,
M.D. (Bates 1408-1431); Jt-28 Deposition of Jennifer Salamon,
M.D. with attached exhibits (Bates 1432-1453); Jt-29 Deposition of Tonya Nicholson, CNM, (Bates 1454-1458); Jt-30 Deposition of Maria Kong, M.D., with attached exhibits (Bates 1459-1523); Jt-
31 Deposition of Louis Hamelek, M.D. (Bates 1524-1592) [Transmitted later to DOAH; substituted by agreement to provide all pages]; Jt-32 NICA participation certificate for
Dr. Gabriel, Ms. Nicholson, and Dr. Salamon (Bates 1593-1595); Jt-33 Deposition of Dr. Cullen, including Dr. Cullen's report and records, etc. (Bates 1596-1822; see TR-32, 34-36); Jt-34 Deposition of Camille DiCostanzo 10:00 a.m. (Bates 1823-1894); Jt-35 Report of Donald C. Willis, M.D., filed 9/14/11 (Bates 1895-1896); Jt-36 Report of Michael Duchowny, M.D., filed 11/23/2010 (Bates 1897-1900); [No Jt Ex 37; see TR 32, 34-37].
[Transmitted later to DOAH. Not in notebook] Jt 34B Deposition of Camille DiCostanzo at 11:02 a.m. Cover letter mis-designated it as "Jt 4."
[In notebook] P-2 Winter Haven Hospital Unverified Answers to Interrogatories dated March 21, 2011 (Bates 0003-0006); P-3 March 23, 2011, letter from Brian Smith; (Bates 007); P-4 Bond & Steele Clinic's April 8, 2011 Unverified Responses to Interrogatories (Bates 0008-0011); P-5 Photographs of Luis Vazquez (Bates 0012-0014).
(P-1, an affidavit, was not admitted.)
P-5A (More) photographs of Luis Vazquez; not in notebook; were proffered but not admitted. (See TR 99-101, 122.)
[Transmitted later to DOAH. Not in notebook] P-6 Longo Deposition with attached translation.
[In notebook] I-1 NICA Notice Form signed by Teresa Vazquez (Bates 0001; see TR 41); I-2 NICA brochure (Bates 0002-0003); see TR 52-54, 133; I-3 NICA brochure (Bates 0004-0005 [see TR- 133; I-4 CNM Collaborative Practice Agreement and Protocols (Bates 0006-00018) see TR-52-54, 133.
10/ Subsequent amended and repetitive proposals and memoranda have not been considered.
11/ "Hypotension" abnormally low blood pressure; seen in shock but not necessarily indicative of it. Dorland's Illustrated Medical Dictionary 810 (28th ed. 1994).
12/ An Apgar score is a numerical expression of the condition of a newborn infant, usually determined at 60 seconds after birth, being the sum of points gained on assessment of the heart rate, respiratory effort, muscle tone, reflex irritability, and color. Dorland's Illustrated Medical Dictionary 1497 (28th ed. 1994).
13/ Bennett v. St. Vincent's Med. Ctr., Inc., 71 So. 3d 828 (Fla. 2011), approving the analysis in Orlando Regional Healthcare System, Inc. v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 997 So. 2d 426 (Fla. 5th DCA 2008).
14/ "[I]f either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and forgo
any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA." Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings, 29 So. 3d 992 (Fla.
2010).
15/ At all times material, section 395.002(9)(b) read, in pertinent part:
(9) "Emergency medical condition" means:
* * *
(b) With respect to a pregnant woman:
* * *
3. That there is evidence of the onset of and persistence of uterine
In 2007, a Reviser's Bill amended section 766.316 to incorporate "s. 395.002(8)(b)" instead of "s. 395.002(9)(b)" so as to conform s. 766.316 to a renumbering of the other statute. There was no substantive change in chapter 395 at that time.
16/ See section 766.309(1)(b), with regard to certified nurse midwives in a teaching hospital working with participating physicians, and the pertinent part of section 766.314(4)(c), with regard to certified nurse midwives who pay their own NICA fee, at Conclusions of Law 119 and 120, respectively.
See also Tarpon Springs Hosp. Found., Inc. v. Anderson, supra; Fluet v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 788 So. 2d 1010 (Fla. 2d DCA 2001).
17/ The NICA Plan is designed to protect obstetricians who must give notice. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings, supra, n. 14. Cf.- Pediatrix Med. Group of Fla. v. Falconer, 31 So. 3d 310 (Fla. 4th DCA 2010).
18/ See Finding of Fact 65 and Conclusion of Law 126, on the presumption of receipt contained in section 766.316, and Dianderas v. Florida Birth-Related Neurological Injury Comp. Ass'n, 973 So. 2d 523 (Fla. 5th DCA 2007), (the "Nica 'Peace of Mind' brochure satisfies the legislative mandate of providing a
'clear concise explanation of a patient's rights . . . limitations' under the plan." Id. at 527.
19/ See Finding of Fact 66-67.
20/ Overall, Ms. Hernandez's testimony was admissible and worthy of being the basis of findings of fact as competent, substantial evidence, pursuant to sections 90.406 and 120.569(2)(g); Shands Teaching Hosp. and Clinics, Inc. v. Dunn, 977 So. 2d 594 (Fla. 1st DCA 2007); and Jackson v. Fla. Birth- Related Neurological Injury Comp. Ass'n, 932 So. 2d 1125 (Fla. 5th DCA 2006).
21/ See n. 20. 22/ See n. 4.
COPIES FURNISHED:
(Via Certified Mail)
Maria D. Tejedor, Esquire Christopher J. Bilecki, Esquire Diez-Arguelles and Tejedor, P.A.
505 North Mills Avenue Orlando, Florida 32803
(Certified Mail No. 7010 1670 0000 3103 8283)
Jeffrey P. Brock, Esquire Smith, Hood, Loucks, Stout,
Bigman, and Brock P.A.
444 Seabreeze Boulevard, Suite 900 Post Office Box 15200
Daytona Beach, Florida 32118
(Certified Mail No. 7010 1670 0000 Andrew M. Brown, Esquire MacFarlane, Ferguson & McMullen | 3103 | 8290) |
Post Office Box 1531 | ||
Tampa, Florida 33601 | ||
(Certified Mail No. 7010 1670 0000 | 3103 | 8306) |
Brian L. Smith, Esquire Christopher J. Steinhaus, Esquire
Hill, Adams, Hall & Schieffelin, P.A. Post Office Box 1090
Winter Park, Florida 32790-1090
(Certified Mail No. 7010 1670 0000 3103 8313)
Karissa Owens, Esquire Rissman, Barrett, Hurt,
Donahue and McLain, P.A.
201 East Pine Street, 15th Floor Post Office Box 4940 Orlando, Florida 32801 (Certified Mail No. 7010 1670 0000 | 3103 | 8320) |
Kenney Shipley, Executive Director Florida Birth Related Neurological Injury Compensation Association 2360 Christopher Place, Suite 1 Tallahassee, Florida 32308 (Certified Mail No. 7010 1670 0000 | 3103 | 8337) |
Amie Rice, Investigation Manager Consumer Services Unit Department of Health 4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275 (Certified Mail No. 7010 1670 0000 | 3103 | 8344) |
Elizabeth Dudek, Secretary Health Quality Assurance
Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3
Tallahassee, Florida 32308
(Certified Mail No. 7010 1670 0000 3103 8351)
NOTICE OF RIGHT TO JUDICIAL REVIEW
Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 24, 2012 | DOAH Final Order | NICA claim barred by statute of limitation but parties entitled to determination of compensability (found) and notice (found). Discusses permanent and substantial mental impairment and vicarious notice for CNM. |
