The Issue The issue in this case is whether Wellington Regional Medical Center provided the notice required by section 766.316, Florida Statutes.
Findings Of Fact Stipulated facts At all times material, Scott and Danielle Faivus were and are husband and wife. Mrs. Favius was a patient of OB/GYN Specialists where she received prenatal care for the birth of her son, Ryder. Mrs. Faivus was given NICA notice during that care. Mrs. Favius pre-registered online with Wellington Regional in April of 2014 for her delivery. She went to the hospital July 7, 2017, for a labor check. On July 22, 2014, Mrs. Favius presented to Wellington Regional for induction of labor. Mrs. Favius signed a Receipt of Notice to Obstetric Patient on July 22, 2014, acknowledging receipt of the NICA Peace of Mind Brochure. A Caesarean section was performed and Ryder Favius was delivered. It was subsequently determined he sustained a hypoxic ischemic encephalopathy. NICA determined that this is a birth- related injury as defined by chapter 766, Florida Statutes. Respondent filed a Motion for Summary Final Order. A Partial Summary Final Order was entered on February 6, 2017, which determined that Petitioners' claim to be compensable under the NICA Plan. Facts based upon the evidence of record The maternity Pre-registration page from Wellington Regional's website instructs the patient that there are three ways to preregister: online, by mail, and in person. On April 25, 2014, Ms. Faivus accessed the online pre-registration page to preregister for her delivery. Just below the enumeration of the three methods of pre- registration, the online maternity pre-registration page in evidence contains a red exclamation point and "FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION (NICA)" written in capital letters immediately beside the exclamation point. The pre-registration page continues with the following: In order to fully process your Pre- registration, please download the NICA pamphlet and form. The form must be signed and returned to: Wellington Regional Medical Center Attn: Admitting Officer 10101 Forest Hill Boulevard Wellington, FL 33414. NICA Pamphlet NICA Consent Form The maternity pre-registration page in evidence is a screen shot of what is currently on the hospital's website. Arlene Morea, patient access director at Wellington Regional, was asked if the current maternity pre-registration page is the same as it appeared in 2014, when Mrs. Favius filled out the pre- registration form. She replied "to the best of my knowledge, yes." She further explained that other than some formatting changes, "everything is the same as far as the pre-registration," including the red exclamation point. The screen shot in evidence shows the red exclamation point immediately below the three methods of pre-registration. Mrs. Favius does not recall reviewing the instruction on the pre-registration page regarding downloading the NICA pamphlet or downloading and completing the NICA consent form. Notwithstanding, she received a REGIE registration confirmation by e-mail which thanked her for submitting the online REGIE request to Wellington Regional "where it will be processed." There is nothing on the face of the registration confirmation document that references downloading the NICA materials, or to indicate whether or not she had downloaded the pamphlet or acknowledgment form. According to Ms. Morea, it is the routine practice of Wellington Regional that when a maternity patient completes the demographics portion of the online pre-registration, the hospital mails a pre-registration packet to the patient containing a confirmation of the registration, an account number, information regarding payment and insurance benefits, the NICA acknowledgement form, a return envelope for the patient to return the acknowledgment form, the NICA "Peace of Mind" pamphlet, and information regarding different services the hospital provides, such as information on breast feeding and sibling passes. The hospital did not receive any returned mail sent to Mrs. Favius. However, there is no signed NICA acknowledgment form in Mrs. Favius' hospital record from the pre-registration process. Mrs. Favius denies receiving the pre-registration packet, or any other documents from the hospital, by mail following the submission of the online pre-registration demographic information. The registration confirmation letter does not reference NICA. Mrs. Favius confirmed that her address is the same address which is on record for her at Wellington Regional. The confirmation registration established a "visit date" of July 17, 2014, and assigned a confirmation number to Mrs. Favius. Ms. Morea explained that July 17, 2014, was the "visit date" scheduled for Mrs. Favius to go to the hospital. However, Mrs. Favius presented to Wellington Regional 10 days prior to her assigned visit date on the night of July 7, 2014, for a "labor check", because she thought she was going into labor. She went to the labor and delivery floor where she was hooked up to a fetal monitor, had a vaginal exam and an ultrasound. Mrs. Favius does not recall whether she told anyone at the hospital that she intended to deliver there. At the July 7, 2014, hospital visit, Mrs. Favius signed various documents including authorizations for financial billing and a consent to treat. There is no record of a signed NICA acknowledgment form in her file for the July 7, 2014, hospital admission. Mrs. Favius recalls signing papers but does not recall receiving copies of any paperwork during this visit and does not recall any of the discussions she had with the nurses during this visit. According to Ms. Morea, the routine practice in labor and delivery is that the NICA pamphlet and acknowledgment form are given to the patient when she arrives at the hospital either for a labor check or in labor. So, using routine practice, the patient should have received the NICA pamphlet and the acknowledgment form during the July 7, 2014, hospital visit. However, there is no NICA acknowledgment form in Mrs. Favius' hospital record for her July 7, 2014, admission. Ms. Morea noted that the NICA pamphlet could have been given to Mrs. Favius, but it was not scanned into her account. Ms. Morea's statement as to the hospital's routine practice is consistent with that of Jamie Gabbard, R.N., who worked at Wellington Regional as a labor and delivery nurse at the time of Ryder's birth. According to Nurse Gabbard, nurses would routinely give the NICA pamphlet to the maternity patient "as soon as we were able to. You know, if they were for induction, we would give it the first thing with all their consents. If they came in in labor, we would do it as soon as we could, you know." Nurse Gabbard further described the routine practice in 2014 in regard to providing NICA notice and various consent documents to patients who presented to the labor and delivery floor. That is, packets were put together which included the NICA pamphlet, the NICA acknowledgment form, and various consent forms for the patient. The nurse would present the packet to the maternity patient for signing. Mrs. Favius was admitted to the hospital on July 22, 2014, for a scheduled induction. When she arrived at labor and delivery, she was put on a monitor. The monitor indicated she was experiencing contractions of early labor, but she did not feel any contractions until Dr. Carlson ruptured her membranes a few hours after she arrived. Upon arrival at labor and delivery, Mrs. Favius signed paperwork. One of the documents she signed was the NICA acknowledgment form, although she does not recall doing so. Nurse Gabbard witnessed Mrs. Favius's signature on the NICA acknowledgment form dated July 22, 2014, which is routine practice. Nurse Gabbard's signature appears on the obstetrical consent forms signed by Mrs. Favius on July 22, 2014, and the NICA acknowledgment form. Mrs. Favius signed the form entitled Receipt of Notice to Obstetric Patient, which reads as follows: RECEIPT OF NOTICE TO OBSTETRIC PATIENT I have been furnished information in the form of a Brochure prepared by the Florida Birth- Related Neurological Injury Compensation Association (NICA), pursuant to Section 766.316, Florida Statutes, by Wellington Regional Medical Center, wherein certain limited compensation is available in the event certain types of qualifying neurological injuries may occur during labor, delivery or resuscitation in a hospital. For specifics on the program, I understand I can contact the Florida Birth-Related Neurological Injury Compensation Association, Post Office Box 14567, Tallahassee, Florida 32317-4567, (850)398-2129. I specifically acknowledge that I have received a copy of the Brochure prepared by NICA. The signed NICA acknowledgment form is not time- stamped, but the other documents in the packet which were signed by Mrs. Favius were signed around 6:30 a.m., shortly after her arrival at the hospital on July 22, 2014. Despite her signature appearing on the acknowledgement form, Mrs. Favius does not recall receiving a NICA pamphlet at the hospital on July 22, 2014, or on any other occasion. She also does not recall receiving a NICA pamplet, and signing a NICA acknowledgment form, at Dr. Carlson's office. However, she concedes that she did sign an acknowledgment form at the hospital on July 22, 2014, and at Dr. Carlson's office. It is concluded that Mrs. Favius received the NICA pamplet from Wellington Regional on July 22, 2014, shortly after she was admitted that morning, while in early labor. Petitioners have stipulated that Mrs. Favius was provided notice from Dr. Carlson and OB/GYN Specialists, despite her not remembering receiving the NICA pamphlet or signing the acknowledgment form there, although she clearly did so.
The Issue Whether respondent's licence as a medical doctor should be disciplined on charges that he: (1) was convicted in a foreign country of a crime relating to the practice of medicine, (2) obtained his license to practice medicine by fraud or deceitful misrepresentation, (3) had his license acted against by the licensing authority of another state, (4) made misleading, untrue, or fraudulent representations in the practice of medicine or employed a trick or scheme in the practice of medicine, (5) engaged in unethical, deceptive, or deleterious conduct harmful to the public, (6) failed to prescribe controlled substances in good faith and in the course of his medical practice, and (7) engaged in immoral or unprofessional conduct, incompetence, negligence, or willful misconduct, all in violation of Section 458.1201, Florida Statutes (1973), and Section 458.331, Florida Statutes (1981).
Findings Of Fact Count I: Conviction of a Crime Relating to the Practice of Medicine In 1960, respondent was a first-year medical student at Fribourg University in Switzerland. On May 11, 1960, he was tried and convicted by the Criminal Court of Sarine in Fribourg, Switzerland, of the crimes of "attempted abortion committed by a third person, attempted abortion on an unsuitable object by a third person, and violation of the law regarding the health regulations." He was sentenced to a ten-month prison term, minus the time of detention served while awaiting trial, with a suspended execution of sentence during five years. Respondent was also fined 500 Swiss francs, deported from Switzerland, and barred from reentry for a period of fifteen years. (Testimony of Gordon, Alonso; P-3.) II. Count II: Obtaining Florida Medical License by Fraud or Misrepresentation On December 17, 1971, respondent filed with the Florida State Board of Medical Examiners a sworn application for examination and licensure as a medical doctor in the State of Florida. On his application, he responded in the negative to questions asking whether he had ever been convicted of a felony or a misdemeanor. The application also contained the following statement, in bold type, above the signature line of the applicant: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I fur- nish any false information in this applica- tion, I hereby agree that such act shall constitute cause for the denial, suspension, or revocation of my license to practice medicine and surgery in the State of Florida. (P-2.) On August 30, 1972, based on his application and passage of the examination, the Board of Medical Examiners issued respondent a license (license No. 24291) to practice medicine and surgery in Florida. (Testimony of Gordon; P-2.) Respondent explains his failure to reveal his Switzerland conviction on his application as a "peccadillo." (Tr. 245.) Since the New Jersey Medical Board records (where he was previously licensed) reflected his Switzerland conviction, he testified that he felt the New Jersey board would have notified the Florida board of the conviction. (Tr. 245-246.)(Testimony of Gordon.) By 1974, within two years after he was licensed in Florida, the Department became aware of his criminal conviction in Switzerland. In 1973 or 1974, soon after respondent opened his medical practice in North Miami Beach, a Department investigator, A. J. Stack, told him that the Department knew of his criminal conviction in Switzerland. (Testimony' of Gordon; R-2.) III. Count III: New Jersey's Action Against Respondent's Medical License On September 29, 1972, the New Jersey Board of Medical Examiners issued an administrative complaint seeking to suspend or revoke respondent's New Jersey medical and surgical license on charges he sexually assaulted two female patients and dispensed amphetamines to two other patients without good medical cause. One month later, the New Jersey board supplemented its complaint by adding two additional charges: (1) that he was convicted as an abortionist in Switzerland in May, 1960, and (2) that he failed to complete Section 12 of the application (i.e., disclose the Switzerland conviction), thereby obtaining his New Jersey medical license by fraud. (P-4, R-2.) On December 11, 1972, the New Jersey Department of Health suspended, for an indefinite period, respondent's New Jersey controlled substance registration. The suspension order states that, after being notified by certified mail, respondent failed to appear before the Department and show cause why his registration should not be suspended. No other reason is given for the suspension action. Respondent now asserts that the Department of Health did not notify him of its action to suspend his controlled substance registration. (Tr. 251-252.)(Testimony of Gordon; P-4.) The charges brought against respondent by the New Jersey Board of Medical Examiners were never adjudicated on their merits. On February 27, 1973, he resigned from the practice of medicine in New Jersey and surrendered his New Jersey medical license to the Board of Medical Examiners. (Testimony of Gordon; P-4, R-2.) When the New Jersey Board of Medical Examiners brought its charges against respondent, he had already obtained his Florida medical license. The Florida board of Medical Examiners learned of the New Jersey charges and respondent's resignation in May, 1973. In February, 1974, the board's counsel advised that "there is really nothing we can do unless Dr. Gordon violates the Florida laws." (R-2.) And, on May 15, 1974, the board's executive director made this notation in respondent's file: If he [respondent] has any trouble here in Florida we can suspend his license on the basis of the N.J. Board's action. (R-2.) IV. Counts IV, V, VI, and VII: Professional Misconduct in Treating Elizabeth Buffum Respondent began to practice medicine in Florida in 1973 at North Miami Beach, Florida. In December of that year--at the request of a third party--he went to the home of Elizabeth Buffum and treated her for alcoholism. Thereafter, he continued to treat her for chronic alcoholism. His treatment was to limit her use of alcohol and prescribe various sedatives, such as Thorazine and Sparine, which are scheduled controlled substances. In June, 1974, he and Ms. Buffum began living together; in September they were married. From December, 1973, until Ms. Buffum left him in November, 1975, respondent continuously acted as her physician and provided treatment for her alcoholism. (P-1.) Ms. Buffum was a woman of great wealth. During her marriage to respondent, she relied on respondent not only as her physician but also as her confidant and financial advisor. Extensive 9/ civil litigation which followed their broken marriage resulted in the Circuit Court of Dade County rendering a judgment in Bellman v. Gordon, Case No. 75-18967 (Fla. 11th Cir. Ct. 1979) [affirmed, Gordon v. Gordon, 386 So.2d 1326 (Fla. 3rd DCA 1980), opinion filed July 29, 1980], finding that: Edward Gordon breached this fiduciary duty [to Ms. Buffum and converted her assets to his own use and the use of his family so that nearly all of her assets were divested from her. The court ordered the return of her assets. (P-1, P-5.) In treating Ms. Buffum's alcoholism, respondent would allow her to drink limited amounts of alcohol: the thrust of his treatment program was to gradually decrease the dosages of alcohol. (Frequently, he would add water to her liquor bottles in an attempt to lessen the effects of alcohol.) He sometimes gave her an alcoholic drink to calm her, and ordinarily allowed her an alcoholic drink before evening meals. He also gave her vitamin B12 and Valium. When he thought she was having delirium tremors, he administered Thorazine. He acknowledges that, when she was in such a condition, it would have been proper to place her in the hospital, but he felt--at the time--that he could properly care for her at home. (Testimony of Gordon; P-1.) Dr. Delores Morgan, a qualified expert in family practice and alcoholism treatment, testified that respondent's medical treatment of Ms. Buffum deviated from the generally accepted and prevailing medical practice in the Miami area between 1973 and 1975. She testified Benzodiazepins (including Librium and Valium), rather than Phenathiazines (including Thorazine and Sparine) should be administered to patients suffering from alcohol withdrawal symptoms, such as delirium tremors; that such patients are medical emergencies and must be hospitalized, where their progress can be monitored and a thorough physical examination can be given, including checking eletrolyte patterns, potassium deficiencies, and chemical profiles; that, rather than decreasing doses of alcohol, treatment of alcoholism requires complete abstinence; and that if an alcoholic patient refused hospitalization, he or she should have been involuntarily hospitalized pursuant to state law. These opinions of Dr. Morgan are persuasive and are expressly adopted as findings. Respondent's contrary opinions are rejected as self-serving and uncorroborated. (Testimony of Morgan.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license to practice medicine and surgery in Florida be suspended for one (1) year. DONE AND RECOMMENDED this 22nd of June, 1982 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1982.
Findings Of Fact Sebastian Maya was born on October 11, 2006, at Plantation General Hospital in Plantation, Florida. He was a single gestation. Based on the NICU discharge summary, Sebastian weighed 1,740 grams at birth. There is no dispute that Sebastian did not weigh at least 2,500 grams at birth. The Petition Under Protest was filed on August 11, 2014, which is more than five years after Sebastian’s birth.
Findings Of Fact Westin David Kobryn was born on November 27, 2013, at Baptist Medical Center South located in Jacksonville, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Westin. In an affidavit dated April 1, 2016, Dr. Willis opined as follows: In summary, labor was induced for post-dates. Cesarean section was done for arrest of decent. The baby was depressed at birth with Apgar scores of 1/4/8, required intubation, but respiratory distress resolved quickly. Cord blood gas was within normal limits (pH of 7.11). The baby did not have any significant problems during the newborn hospital stay. Head imaging studies were not done. As such, it is my opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Westin and to review his medical records. Dr. Sigurdardottir examined Westin on January 6, 2016. In an affidavit dated April 15, 2016, regarding her independent medical examination of Westin, Dr. Sigurdardottir opined as follows: The summary of the examination is as follows: Here we have a 2-year 1-month-old with documented low Apgar scores of 1 at 1 minute, 4 at 5 minutes and 8 at 10 minutes. He required endotracheal intubation at birth, but was discharged successfully after a rule out sepsis admission at 3 days of life. He has since then had a very mild delay in motor development and a more pronounced delay in language development with possible autistic features, although he does not carry that diagnosis at this time. Language testing has revealed normal language comprehension, but a mild expressive language delay. . . . The patient is found to have no substantial physical impairment and to have a mild mental impairment, mainly in areas of expressive language and possible autistic features. . . . There is evidence of a perinatal depression (low Apgars) and a mixed metabolic and respiratory acidosis that quickly resolved and no evidence of neurologic impairment or multisystem dysfunction in the immediate postnatal period is documented. MRI findings from December 2015 show non specific white matter abnormalities and a congenital abnormality (cavum Septum Pellucidum). . . . We would expect full life expectancy as he has no noticeable motor impairment and mild delays in language development. His possibly autistic features will need further testing. Overall prognosis in areas of cognition are fair. As such, it is my opinion that the IME and record review do not support a finding that Westin suffered a birth-related neurological injury. I therefore do not recommend consideration for inclusion within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or resuscitation in the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Westin has no substantial physical impairment and to have a mild mental impairment, mainly in areas of expressive language. Dr. Sigurdardottir’s opinion is credited.
Findings Of Fact Based upon the Stipulation of the parties, the following facts are found: Joel Davis Laton and Christine Anne Laton are the parents and legal guardians of Rose, and are the “Claimants” as that term is defined in section 766.302(3). On or about August 17, 2019, Rose incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), which was the sole and proximate cause of Rose’s medical condition. David Miller, M.D., rendered obstetrical services in the delivery of Rose and, at all material times, was a “participating physician” as defined in section 766.302(7). SVMCR is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Rose was born. At birth, Rose weighed 4,650 grams. Rose died on August 17, 2019. Petitioners filed a Petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
The Issue At issue is whether Taylor Brooks, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Stipulated facts By their stipulation, the parties agree that Karen D. Kempf and Jeremiah Brooks, are the natural parents and guardians of Taylor Brooks, a minor. The parties also agree that Taylor was born a live infant on December 19, 2002, at Shands Hospital, Jacksonville, Florida, and her birth weight exceeded 2,500 grams. Finally, the parties agree the physicians providing obstetrical services during Taylor's birth were John M. Baten, M.D.; Amy D. Greenwald, M.D.; Kimberly Beth Loar, M.D.; and Monica Joy George, M.D. However, there was no agreement that any of these doctor were participating physicians in the Plan.2 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation 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. Regarding compensability, Petitioners contend that Taylor "has a profound and permanent injury as a result of birth-related events, but do not dispute that Taylor's injury is not compensable within the definition of Section 766.302(2), Florida Statutes." (Joint Pre-hearing Stipulation, paragraph B1.) In response, NICA agrees Taylor did not suffer a "birth- related neurological injury," as defined by Section 766.302(2), Florida Statutes, predicated on its view that the proof fails to support the conclusion that Taylor "suffers from a permanent and substantial mental impairment." (Joint Pre-hearing Stipulation, paragraph B2.) Here, the records related to Taylor's birth and subsequent development, as well as the reports of neurologic evaluation by Michael Duchowny, M.D., demonstrate that Taylor is not substantially mentally impaired, much less permanently and substantially mentally impaired. Consequently, for reasons appearing more fully in the Conclusions of Law, the claim is not compensable, and it is unnecessary to resolve the degree of Taylor's physical impairment, whether Taylor's impairments resulted from a brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation, or whether obstetrical services were delivered by a participating physician at birth.
