Findings Of Fact Based upon the Stipulation and Joint Petition, the undersigned makes the following findings of fact: Rebecca Rivera and Hector Rivera (“Petitioners”) are the parents and legal guardians of Everleigh Rivera (“Everleigh”) and are the “claimants,” as defined in section 766.302(3), Florida Statutes. Everleigh suffered a “birth-related neurological injury” (“Injury”), as defined in section 766.302(2), on or about February 16, 2018. The Injury solely and proximately caused Everleigh’s current medical condition. At birth, Everleigh weighed 3400 grams. Steven Dukes, M.D., rendered obstetrical services in the delivery of Everleigh and, at all material times, was a “participating physician,” as defined in section 766.302(7). Adventist Health System/Sunbelt, Inc., d/b/a Winter Park Memorial Hospital (“Advent Health Winter Park”), located in Orlando, Florida, is the “hospital,” as defined in section 766.302(6), where Everleigh was born. On November 22, 2019, Petitioners filed a petition seeking compensation from the Florida Birth-Related Neurological Injury Compensation Association (“NICA”), pursuant to section 766.305, Florida Statutes. The Petition is incorporated herein by reference in its entirety, including all attachments. Any reference to NICA made within that document encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (“Plan”). 1 All references to the Florida Statutes are to the 2017 version. The relevant provisions of chapter 766 have not been amended in any way material to this proceeding since 2017.
The Issue Whether Yaikel Amador, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physicians provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2006), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(8)(b), Florida Statutes (2006), or the giving of notice was not practicable.2
Findings Of Fact Stipulated facts related to compensability Petitioners, Yaima Orozco and Maykel Amador, are the parents and natural guardians of Yaikel Amador, a minor. Yaikel was born a live infant on May 20, 2007, at Kendall Regional Medical Center, a licensed Florida hospital located in Dade County, Florida, and his birth weight exceeded 2,500 grams. Yaikel died December 4, 2008. Obstetrical services were delivered at Yaikel's birth by Francisco G. Tudela, M.D., who, at all times material hereto was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Yaikel sustained a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . of a live infant weighing at least 2,500 grams for a single gestation . . . at birth caused by oxygen deprivation . . . 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. At NICA's request, Donald Willis, M.D., an obstetrician/gynecologist, reviewed the medical records related to Yaikel's birth and subsequent development, and concluded that Yaikel suffered a "birth-related neurological injury." Dr. Willis summarized the basis for his conclusion, as follows: The mother, Yaima Orozco, was a 24 year old . . . with a known complete placenta previa and a prior Cesarean section delivery. Complete placenta previa was well documented by ultrasound during the pregnancy. Ultrasound also identified cleft lip and palate. Repeat Cesarean section delivery was scheduled for the placenta previa. However, a few days before the scheduled delivery, labor began with heavy vaginal bleeding. Hospital records indicate that labor started on the day of delivery (May 20, 2007) at 4:30 in the morning. Delivery occurred [at 7:28 a.m.] about [three] hours after the onset of labor. Cervical exam was not done on admission due to the known placenta previa. Fetal heart rate monitor on admission was abnormal with decreased variability and late decelerations. Uterine contractions were every 2 to 3 minutes. By the time the monitor was taken off for delivery, fetal bradycardia had developed with a heart rate of 80 bpm. Emergency Cesarean section was done for placenta previa in labor with active bleeding. Birth weight was 8 lbs 12 ozs (3,990 grams). The baby was depressed at birth with Apgar scores of 0/0/3/7. The newborn was limp with no respiratory effort or heart beat. CPR was performed for ten minutes before a heart rate was established. The initial blood gas after birth was severely acidotic with a pH of 6.54 and a BE-37.7. The mother lost an estimated 4,500 ml of blood at delivery and was given multiple blood transfusions. Hysterectomy was required. Maternal complications after delivery included DIC, hypovolemic shock, renal failure and adult respiratory distress requiring intubation. The mother survived a stormy post operative course. The baby had a complicated hospital course consistent with hypoxic brain injury. Discharge from the hospital was at 6 weeks of age. Head ultrasound on the day of birth showed slight echogenicity in the periventricular regions. Head ultrasound on DOL 9 showed brain edema with focal infarcts, consistent with hypoxic injury. CT on DOL 23 had extensive changes consistent with severe ischemic hypoxic encephalopathy. Pediatric Neurology office visit at 3 months of age lists diagnoses of spastic quadriparesis, global developmental delay and seizures. The child died on December 4, 2008 of complications related to brain injury and chronic lung disease. In summary: This pregnancy was complicated with a known placenta previa. Labor began with substantial bleeding and fetal distress. The baby was born severely depressed with no heart rate until ten minutes of life. Head ultrasound and CT scans after birth were consistent with hypoxic brain injury. This child suffered severe brain damage due to lack of oxygen during labor, delivery and the immediate post delivery period. (Respondent's Exhibit 1). Here, the parties have stipulated, and the proof is otherwise compelling, that Yaikel suffered a "birth-related neurological injury." Consequently, since obstetrical services were delivered by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The notice issue While the claim qualifies for coverage under the Plan, Petitioners would prefer to pursue their civil remedies, and avoid a claim of Plan exclusivity (immunity), as set forth in Section 766.303(2), Florida Statutes. Therefore, Petitioners have averred and requested a finding that the hospital (Kendall Regional Medical Center) and the obstetrician who provided Ms. Orozco's prenatal care (Armando de la Torre, M.D.) failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 698 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). As for the delivering obstetrician (Dr. Tudela), the parties have stipulated he was not required to give notice because, at the time Ms. Orozco presented to the hospital on May 20, 2007, she had an "emergency medical condition," as defined in Section 395.002(9)(b), Florida Statutes (2006), and Dr. Tudela had no prior opportunity to provide notice. (Joint Pre-Hearing Stipulation; Dr. Tudela Exhibit 1). Consequently, it is necessary to resolve whether Kendall Regional Medical Center and Dr. de la Torre complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat. (2006)("[I]f raised by the claimant or other party, [the administrative law judge shall make] the factual determinations regarding [whether] the notice requirements in s. 766.316 are satisfied.").3 The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2006), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes (2006), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so that they could furnish a copy of it to their obstetrical patients. (Intervenor Exhibit 1 to Hospital Exhibit 2 (the deposition of Mayra Gonzalez)). Findings related to Ms. Orozco's prenatal care and notice Ms. Orozco received her prenatal care from Armando de la Torre, an obstetrician/gynecologist, who maintained an office for the practice of his profession at 7200 Northwest 7th Street, Suite 150, Miami, Florida. At the time, Dr. de la Torre was a sole practitioner, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, and held staff privileges at, but was not an employee of, Kendall Regional Medical Center. Pertinent to the notice issue, the proof demonstrated that when Ms. Orozco presented to Dr. de la Torre's office on February 21, 2007, for her initial visit, the office had a routine pursuant to which all new obstetric patients were to be given a copy of the NICA brochure by the medical assistant who interviewed them, in this case Mayra Gonzalez, together with a NICA acknowledgment form (RECIBO DE AVISO DE PACIENTE DE OBSTETRICIA), which the patient was asked to complete (by printing her name, social security number, and date) and sign, acknowledging receipt of the NICA brochure and notice of Dr. de la Torre's participation in the Plan. (Hospital Exhibit 2 (the deposition of Mayra Gonzalez), together with Intervenor Exhibits 1 and 2 to that deposition). An Aids & HIV Informed Consent Form (HIV consent form) was also given to the patient to sign. (Petitioners' Exhibit D to Hospital Exhibit 2). According to Ms. Gonzalez, after she gave the patient the NICA brochure and the NICA acknowledgment form to complete and sign, she documented the lab record, under "32-36 WEEK LABS," next to the "NST" (nonstress test) line, with the notation "NICA" followed by the date. (Petitioners' Exhibit 3; Petitioners' Exhibit A to Hospital Exhibit 2). Here, Ms. Gonzalez testified she documented the lab record with the entry "NICA 2/21/07," in her own handwriting, and would not have done so had she not given Ms. Orozco a copy of the NICA brochure. Apart from the foregoing activities, Ms. Gonzalez also completed the first page of the Prenatal Record, except for limited information at the top of the form (related to the date, insurance, patient's name, social security number, age, date of birth, address, and phone number), and then referred the patient to Dr. de la Torre for her initial consultation. (Petitioners' Exhibit 4; a copy of the Prenatal Record is also included among the office records attached to Hospital Exhibit 2). According to Ms. Gonzalez, she paper clipped the NICA acknowledgment form and the HIV consent form together and placed them in the patient chart, to be later hole-punched and secured in the chart by a clerk. In contrast to the proof offered regarding Dr. de la Torre's office routine, Ms. Orozco testified that no one discussed the Plan with her, she did not receive a NICA brochure, she was not asked to sign a receipt for the brochure, and she was not advised of Dr. de la Torre's participation in the Plan. As for the HIV consent form, Ms. Orozco did not recall filling out such a form, but acknowledged the test was done with her consent. (Transcript, pp. 36 and 37). Notably, Ms. Orozco's chart does not include, as it should if the office routine was followed, a copy of the NICA acknowledgment form or the HIV consent form. Nevertheless, the Hospital and NICA contend there is no reason to conclude the office routine was not followed because the HIV analysis was performed and Ms. Gonzalez noted on the lab record that she had provided the NICA brochure to Ms. Orozco (by making the entry that read "NICA 2/21/07"). However, there was no showing that written consent, as opposed to oral consent, was required before an HIV analysis would be performed. See also §§ 381.004(3)(a) and 384.31, Fla. Stat. As for the probative value of the "NICA 2/21/07" entry on the lab record, Petitioners were of the view that such entry did not compare favorably with the acknowledged exemplars of Ms. Gonzalez's writing of the date "2/21/07" that appear on the Prenatal Record she completed, that such entry was likely entered by another person after Ms. Gonzalez's interview, and that such entry is not a reliable indication that the office practice was followed on Ms. Orozco's initial visit or that she was provided a NICA brochure. With regard to the absent NICA acknowledgment form and HIV consent form, there are two possible explanations. First, that such forms were never presented to Ms. Orozco. If that were the case, then the office practice was not followed, and it would be inappropriate to conclude, based on such practice, that Ms. Orozco was given a NICA brochure. A second possible explanation, given the office practice, is that for some inexplicable reason the forms were lost or misplaced. In that case, it would be appropriate to consider the office practice when resolving whether Ms. Orozco was given a NICA brochure. As an explanation for the missing documents, Dr. de la Torre and Ms. Gonzalez opined that they may have been lost, and pointed to the entry of "NICA 2/21/07" on the lab record as proof Ms. Gonzalez followed the office routine and that Ms. Orozco was likely given a copy of the NICA brochure. (Petitioners' Exhibit 1, pp. 33-35, 36, and 37; Hospital Exhibit 2, pp. 27-29). However, the entry of "NICA 2/21/07," which Ms. Gonzalez testified she made is troublesome. Notably, with specific regard to the numeral "2," and to a lesser extent with regard to the other numerals, the entry does not facially resemble the entries Ms. Gonzalez made on the Prenatal Record. Moreover, there being no evidence of a catastrophic event (i.e., wind or fire damage to the office) to account for the missing documents; the importance of the NICA acknowledgment form, and its retention with the medical records; the wealth of identifying information on the documents that makes it easy to assure they are properly filed; and the fact that patient records are kept in a secure area,4 compel the conclusion that it is more likely the forms were never presented to Ms. Orozco, then lost. Accordingly, on this record, it must be resolved that the proof failed to support the conclusion that, more likely than not, the office practice was followed or that Ms. Orozco was given a NICA brochure. Findings related to the hospital and notice On April 6, 2007, at the suggestion of Dr. de la Torre, Ms. Orozco presented to Kendall Regional Medical Center and pre-registered for Yaikel's delivery by cesarean section. At the time, Ms. Orozco was interviewed by a registration clerk, and signed a "Condiciones de admisión" (Conditions of admission) form. (Petitioners' Exhibit 8; Hospital Exhibit 6). However, Ms. Orozco was not given a NICA brochure or otherwise advised of the NICA program, although it was practicable to have done so. At 4:30 a.m., May 20, 2007, a few days before the scheduled delivery, labor began with heavy vaginal bleeding, and on the advice of Dr. Tudela, the physician on-call to cover Dr. de la Torre's patients,5 Ms. Orozco went to Kendall Regional Medical Center, where she was received at or about 6:02 a.m. At the time, Ms. Orozco had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2006.)6 (Joint Pre-Hearing Stipulation; Dr. Tudela Exhibit 1). Dr. Tudela, like Dr. de la Torre, held staff privileges at, but was not an employee, of Kendall Regional Medical Center. Given Ms. Orozco's condition, a stat cesarean section delivery was called, and at 6:25 a.m., Ms. Orozco was asked to sign, and signed, a number of forms, including a Photography and Videotaping Guidelines in the Maternity Unit form, Consent for Operation form, Consent for Anesthesia form, and Consent for Transfusion form. (Petitioners' Exhibit 8, Orozco Bate Stamp Numbers 00165-00168). At 6:30 a.m., Ms. Orozco was asked to sign, and signed, a Notice to Obstetric Patient form, acknowledging that the hospital had provided her a copy of the NICA brochure. (Petitioners' Exhibit 8, Orozco Bate Stamp Number 00169; Hospital Exhibit 5). Ms. Orozco admits she signed the Notice to Obstetric Patient form, but credibly testified she did not read it because she was ill, and disputes that she was given a NICA brochure. Petitioners also contend the brochure, if given, was not provided a reasonable time prior to delivery to allow for the exercise of an informed choice of providers. As to this contention, Petitioners note that the hospital had an opportunity to provide meaningful notice during Ms. Orozco's pre-registration on April 6, 2007, but failed to do so, and that if a brochure was given to her after she presented in an emergency medical condition, it was not efficacious notice. Petitioners' contention is well-founded. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the Plan a reasonable time prior to delivery."); Weeks v. Florida Birth- Related Neurological Injury Compensation Association, 977 So. 2d 616, 618 (Fla. 5th DCA 2008)("[NICA] notice must be given a reasonable time after the commencement of the [provider- obstetrical] patient relationship and . . . the failure to do so is not excused by the subsequent emergency."); Northwest Medical Center, Inc. v. Ortiz, 920 So. 781, 786 (Fla. 4th DCA 2006). ("Because the purpose of the notice is 'to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies,' . . . notice [given after a patient was admitted in an emergency medical condition] was ineffective . . . ."); University of Miami v. Ruiz, 916 So. 2d 865, 870 (Fla. 3d DCA 2005)("Although we concur that the provision of notice is excused when the patient presents in an emergency medical condition, we find that, if a reasonable opportunity existed to provide notice prior to the onset of the emergency medical condition, the participating health care providers' failure to do so will not be excused and the participating health care providers will lose their NICA Plan exclusivity."). Consequently, it must be resolved that having failed to take advantage of a reasonable opportunity to provide pre-delivery notice, the hospital failed to comply with the notice provisions of the Plan.
Conclusions For Petitioners: Deborah J. Gander, Esquire Ervin A. Gonzalez, Esquire Colson Hicks Eidson 255 Aragon Avenue, No. 200 Coral Gables, Florida 33134 For Respondent: David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest Sixth Court Plantation, Florida 33324 For Intervenor Kendall Regional Medical Center: Scott E. Solomon, Esquire Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A. Two Alhambra Plaza, Suite 750 Coral Gables, Florida 33134 For Intervenors Francisco G. Tudela, M.D., and Francisco G. Tudela, M.D., P.A.: Orlando R. Ruiz, Esquire Law Offices of Orlando R. Ruiz Offices at Pinecrest, Suite 200 7695 Southwest 104th Street Miami, Florida 33156
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether the license of the Respondent, Debra Ann Roberts, should be placed on probation, suspended or revoked.
Findings Of Fact The Respondent, Debra Ann Roberts, R. N., holds License No. 1019542. During the time pertinent to this hearing, September of 1978, she was employed at University Hospital in Jacksonville, Florida. An Administrative Complaint was issued against Respondent Roberts on April 20, 1979, alleging unprofessional conduct. The Respondent requested an administrative hearing. On or about September 14, 1978, while employed as a registered nurse at University Hospital in Jacksonville, Florida, Respondent Roberts committed a medication error by administering Decadron 4 mg. to an infant patient, when the physician's order called for Decadron 2 mg. for said patient. The Respondent admitted this allegation of the Administrative Complaint. After this incident she went through a brief training period, during which time she was not allowed to give medications but was allowed to continue to work. Yvonne Ivey, R. N., the head nurse in the newborn nursery at University Hospital, who was the pediatric supervisor at the time pertinent to this hearing, received an undated letter from Louvenia Sewell, R. N., another nurse and co-worker of the Respondent. This letter was received in the hospital as are many letters in the office of the supervisor or director of personnel. In this letter Ms. Sewell accused Respondent Roberts of leaving for a half-hour break instead of feeding an infant in her care and also stated that she, Ms. Sewell, was required to feed the baby. Ms. Sewell was not subpoenaed as a witness. Respondent Roberts explained that in fact she had fed the baby water, that the baby had been sick and required only water. Ms. Sewell and the Respondent did not get along well together, and it cannot be determined whether the Respondent properly fed the infant. On or about September 26, 1978, while being counseled by Ms. Ivey in the presence of Ms. Sewell and another nurse, Ms. Scott, concerning the Respondent's use of profanity while on duty, Respondent Roberts became very angry, threw down the keys in her custody and left the hospital. She left her shift without signing out and did not return to her place of employment, which required the assignment of another person to take her place. The Respondent did not tell her supervisor that she would not return to fulfill her duties for that day. The following day, September 27, 1978, the Respondent returned to the hospital, filled out a resignation form and left her employment. No proposed findings of fact, memoranda of law or proposed recommended orders were submitted to the Hearing Officer by the parties.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Respondent, Debra Ann Roberts, be reprimanded and placed on probation for a period of six (6) months. DONE and ORDERED this 29th day of October, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Gary A. Benson, Esquire 437 East Monroe Street, Suite 201 Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. Board of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether notice was accorded the patient, as contemplated by Section 766.16, Florida Statutes (Supp. 1998), or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (Supp. 1998), or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Juanita Ruiz and Miguel Angel Ruiz, are the natural parents and guardians of Michael A. Ruiz, a minor. Michael was born a live infant on August 14, 1998, at Jackson North Maternity Center, a hospital located in Dade County, Florida, and his birth weight exceeded 2,500 grams. Among the physicians providing obstetrical services at Michael's birth were Paul Norris, M.D., and Bel Barker, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes (1997).2 When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain . . . of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation . . . 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(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Michael suffered severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, the claim is compensable, and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes, provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . . Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $190.65 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $10,580.33, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 29 Fla. L. Weekly D1982b (Fla. 1st DCA August 30, 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same). At all times material hereto, Section 766.316, Florida Statutes (Supp. 1998), prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. [395.002(9)(b)][3] or when notice is not practicable. Pertinent to this case, Section 395.002(9)(b), Florida Statutes (Supp. 1998), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Petitioners' Exhibit 15, the NICA brochure, "This brochure is prepared in accordance with the mandate of § 766.316, Florida Statutes.") Findings related to the hospital and notice Pertinent to the hospital and the notice issue, the proof demonstrates that on Wednesday, July 22, 1998, Mrs. Ruiz, accompanied by her husband, presented for pre-registration at Jackson North Maternity Center, a hospital owned and operated by the Public Health Trust of Dade County at 14701 Northwest 27th Avenue, Opa Locka, Florida. At the time, consistent with established practice, Mrs. Ruiz was interviewed by a health service representative, and asked to provide pertinent personal and financial information for herself and her husband, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, so the service representative could complete a number of forms. At this time, the service representative also entered pertinent data regarding the Ruizes in the hospital computer data base. During the interview process, four or six forms were routinely completed, depending on whether the patient had commercial coverage, in which case four forms were completed, or whether the patient desired to apply for Medicaid, in which case six forms were completed. (Petitioners' Exhibit 6, pages 24-29 and Petitioners' Exhibit 5, pages 18 and 20). According to the proof, the first form was referred to as "Chronological notes," on which the service representative noted the need for any additional information or follow-up, and is not pertinent to this case. The second, third, and fourth forms that were completed in all cases, were the Application for Credit (on which the service representative noted the personal and financial information provided for the patient and her guarantor, here, Mr. Ruiz, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, and to which the patient and her guarantor attested by signing), the Indigent Income Attestation form (on which the service representative noted the gross family income for the past 12 months, as disclosed by the patient, and to which the patient and her guarantor attested by signing), and the Patient Funding Source form (on which the patient and her spouse attested that they had no other source of funding, other than that disclosed on the insurance benefits worksheet). (Petitioners' Exhibit 6, pages 24-29 and PHT's Exhibit 1, Exhibits 5-7). If the patient wished to apply for Medicaid, the service representative completed a Referral to Medicaid for the patient's signature (form five) and gave the patient an Application for Medicaid (form six) to complete and sign.4 Here, there is no compelling proof that Mrs. Ruiz chose to apply for Medicaid at pre-registration. Indeed, the only forms she signed at pre-registration, that are of record, are the Application for Credit, Indigent Attestation form, and Patient Funding Source form, and the only Medicaid Assistance Referral form of record was dated August 14, 1998, following Michael's birth. (PHT's Exhibit 1, Exhibits 5-7 and 9, and Petitioners' Exhibit 5, pages 18-22). Following completion of the interview process, Mrs. Ruiz was given three pamphlets, an Advance Directives brochure (a pamphlet that explained the living will), a NICA brochure, in Spanish, titled "Peace of Mind for an Unexpected Problem,"5 and a Patient's Bill of Rights brochure. According to the proof, the pamphlets were stapled together, with the Advance Directives brochure, being the longest, on the bottom, followed by the NICA brochure, which was a little smaller, and then the Patient's Bill of Rights brochure, which was the smallest, on top. As configured, all three brochures were visible when presented or held. Contemporaneously, Mrs. Ruiz was asked to sign a form acknowledging receipt of the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). That form provided, as follows: He recibido el folleto intitulado "Tranquilidad Mental" preparado por la Asociacion de Compensaciones por Lestones Neurologicas Relacionadas con el Nacimiento, del Estado de la Florida (Florida Birth- Related Neurological Injury Compensation Association). Firma del Paciente Fecha: Testigo: Mrs. Ruiz signed the form, acknowledging receipt of the NICA brochure, and the service representative witnessed and dated the form.6 Thereafter, the service representative provided Mrs. Ruiz with a gift package for expectant mothers, and the pre- registration process was completed. In all, pre-registration typically took 10 to 15 minutes to complete. Findings related to the participating physicians and notice Pertinent to the participating physicians and the notice issue, the proof demonstrates that the participating physicians in this case (Doctors Paul Norris and Bel Barker) held appointments as full-time members of the faculty at the University of Miami, with the rank of assistant professors of clinical obstetrics and gynecology, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. (Petitioners' Exhibits 13 and 14, and PHT's Exhibits 4 and 5). Among the terms of their agreement with the Public Health Trust, Doctors Norris and Barker, as attending physicians in the resident physician training program, agreed To supervise medical care to patients provided by resident physicians to regularly review the medical charges of these patients. To supervise the completion of medical records by residents physicians. Of note, at all times material hereto, Doctor Norris was the medical director of Jackson North Maternity Center and, together with Dr. Barker and others, an attending physician in the Public Health Trust's resident training program at the facility. Regarding Michael's birth, the proof demonstrates that at or about 4:00 p.m., August 13, 1998, with the fetus at term, Mrs. Ruiz presented to Jackson North Maternity Center, in labor. Following an initial assessment, Mrs. Ruiz was examined by Wayne McCreath, a physician in the resident training program, who noted the cervix at 2 centimeters dilation, effacement at 90 percent, and the fetus at -1 station, and regular uterine contractions every 3 minutes. Membranes were noted to have ruptured spontaneously at 3:00 a.m. Dr. McCreath's impression was intrauterine pregnancy, at 39+ weeks gestation, in labor, and he proposed to admit Mrs. Ruiz to labor and delivery. Dr. McCreath's assessment and proposal to admit Mrs. Ruiz was reviewed by Dr. Norris, the attending physician at the time, and approved. Dr. McCreath continued to provide medical care for Mrs. Ruiz, under the supervision of Dr. Norris, until the 7:00 p.m., shift change, when Dr. Barker assumed the duties of attending (supervising) physician, and some time thereafter George Butler, another physician in the resident training program, was noted to be providing medical care. Ultimately, at 6:01 a.m., August 14, 1998, Michael was delivered by cesarean section, due to arrest in descent and a nonreassuring fetal heart rate pattern. The operating report names Dr. Barker as the attending surgeon and Dr. Butler as a resident surgeon. Notably, with regard to the notice issue, neither Doctor Norris nor Doctor Barker provided NICA notice to Mrs. Ruiz at or following her admission of August 13, 1998, and the only notice she received was that provided by the hospital at pre- registration. Resolution of the notice issue, with regard to the hospital Petitioners do not dispute that the hospital provided Mrs. Ruiz with a copy of the NICA brochure at pre-registration or that she signed the form acknowledging receipt of the brochure. Rather, they contend, first, that Mrs. Ruiz did not receive notice because she never read the documents she signed or the NICA brochure, and that her failure to read the documents or NICA brochure was reasonable or excusable given that, in their opinion, the procedure the hospital employed to secure her signature and deliver the brochure was not adequate to alert her to their significance. Second, Petitioners contend that neither the acknowledgment form nor the brochure was sufficient, for reasons hereafter addressed, to satisfy the hospital's notice obligation under the Plan. To support their first contention, Petitioners offered the testimony of Mrs. Ruiz who, to support Petitioners' contention that her failure to read the documents she signed and the NICA brochure she received was reasonable, observed that the service representative (Machele Lockhart Wadley) simply flipped the bottom up of each page she wanted Mrs. Ruiz to sign, never gave Mrs. Ruiz time to read before signing, never gave Mrs. Ruiz the documents to read before signing or told her to read before signing, and never told Mrs. Ruiz the documents were of any legal significance. Moreover, as for the NICA brochure, Mrs. Ruiz observed that, at the time, she was of the opinion it was simply another baby advertisement, and of no significance. Considering the proof, Petitioners' first contention, and the testimony of Mrs. Ruiz that was offered to support it, must be rejected for a number of reasons. First, given the routine nature of pre-registration and the passage of time since it occurred, it is unlikely that Mrs. Ruiz would have any specific recollection of the events that transpired at the time. Moreover, given the limited number of forms Mrs. Ruiz signed during the interview process, discussed supra, and the fact that her husband also signed as guarantor or spouse, it is also unlikely that the process was hurried or that Mrs. Ruiz was seriously deprived of an opportunity to read the forms or the NICA brochure had she chosen to do so. Finally, and most pertinent to the notice issue, Mrs. Ruiz acknowledged in her testimony that, while she did not read the acknowledgment form, she was specifically advised that by signing the form she was agreeing that she received the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). Under such circumstances, and considering that the brochure was also delivered with two other pamphlets of legal significance (the Advance Directives brochure and the Patient's Bill of Rights brochure), if Mrs. Ruiz failed to accord the NICA brochure significance, her act of doing so was not reasonable. Petitioners' second contention, regarding the adequacy of notice with regard to the hospital, was premised on their view that, as worded, neither the acknowledgment form nor the NICA brochure was adequate to satisfy the notice provisions of the Plan. As for this contention, Petitioners first posit that, since the NICA brochure stated only injuries that "have occurred in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital" (emphasis added) were covered, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan because Jackson North Maternity Center was not described as a hospital in the acknowledgment form, the NICA brochure, the facility signage, or otherwise. Petitioners also posit that, because neither the acknowledgment form nor the NICA brochure states that Jackson North Maternity Center has participating physicians on its staff, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan. Here, Petitioners' second contention must also be rejected. First, Petitioners have stipulated that Jackson North Maternity Center is a hospital, as that terms is used in the Plan, and there is no evidence of record that Mrs. Ruiz suffered any confusion over Jackson North Maternity Center's status as a hospital. Second, there is no requirement under the notice provisions of Section 766.316, Florida Statutes, for the hospital to advise patients that it has participating physicians on staff. Rather, such is presumed if notice is given, and the obligation to disclose their participating status rests with the physician. Resolution of the notice issue, with regard to the participating physicians With regard to the participating physicians, it is undisputed that Mrs. Ruiz was never given notice by Doctors Norris and Barker that they were participating physicians in the Plan, and that the only NICA notice she received was that provided by the hospital at pre-registration, which failed to identify any physician associated with the hospital, or reveal their status as participating physicians.7 Nevertheless, it was the position of Intervenors that the acknowledgment form signed by Mrs. Ruiz at pre-registration, and delivery of the NICA brochure, satisfied the notice provisions of the Plan for the hospital, as well as the participating physicians. Alternatively, the Intervenors were of the view that the participating physicians were not required to give notice, since Mrs. Ruiz presented to the hospital on August 13, 1998, with an "emergency medical condition," as defined by Section 395.002(a)(b), Florida Statutes, or the giving of notice was "not practicable." § 766.316, Fla. Stat. Given the proof, it must be resolved that Doctors Norris and Barker failed to comply with the notice provisions of the Plan. In so concluding, it is noticed that Intervenors' contention that the giving of notice by the hospital also satisfied the participating physicians' independent obligation to give notice must be rejected as lacking a rational basis in fact or, stated otherwise, any compelling proof that a patient, similarly situated as Mrs. Ruiz, would reasonably conclude, from the hospital's notice, that notice was also given on behalf of Doctors Norris and Barker. Notably, the acknowledgment form signed by Mrs. Ruiz at pre-registration did not reveal that it was also given on behalf of any physician associated with the hospital and did not reveal that any physician associated with the hospital was a participating physician in the Plan. Under such circumstances, the giving of notice by the hospital could not satisfy the participating physicians' independent obligation to provide notice.8 With regard to the Intervenors' contention that the giving of notice was not required or was not practicable, it is noted that, while the Legislature clearly expressed its intention in Section 766.316, Florida Statutes, that notice was not required when a patient presented with an "emergency medical condition," the Legislature did not absolve a health care provider from the obligation to give notice when the opportunity was previously available. Consequently, while Doctors Norris and Barker were not required to give notice when they assumed Mrs. Ruiz's care at the hospital, because there was "evidence of the onset and persistence of uterine contractions or rupture of the membranes," they nevertheless failed to comply with the notice provisions of the Plan because, although there was a reasonable opportunity for them to do so, they failed to give Mrs. Ruiz notice at pre-registration.9 See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997); Board of Regents of the State of Florida v. Athey, 694 So. 2d 46 (Fla. 1st DCA 1997); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188 (Fla. 1st DCA 2002); Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995).
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be taken against Respondent's nursing license based on an alleged violation of Section 464.018(1)(h), Florida Statutes.
Findings Of Fact Respondent, Gregory Norton, is a licensed registered nurse in the State of Florida holding License No. RN 2219032. On December 5, 2001, M.E. presented at Wolfson Children’s Hospital with complaints of pneumonia and fever and was admitted for treatment. M.E. had been previously diagnosed with sickle cell disease prior to his admission to the hospital. Respondent was not working at Wolfson Children’s Hospital on December 5, 2001. In compliance with his duties at Wolfson Children’s Hospital, Respondent performed a full assessment on M.E. on December 6, 2001. M.E. was discharged from the hospital on December 7, 2001. Again, Respondent was not working at Wolfson Children’s Hospital on December 7, 2001. At the final hearing, M.E. stated under oath that he had no recollection of any events at Wolfson Children’s Hospital on December 6, 2001, the only date alleged in the Administrative Complaint. Specifically, M.E. testified that he did not remember any examination by or discussion with Respondent on December 6, 2001. On December 6, 2001, M.E., in R.A.’s presence, denied to Kip Deckerhoff that Respondent had engaged in any inappropriate conduct during his examination. M.E.’s denial is confirmed by sworn testimony provided by both R.A. and Kip Deckerhoff, the nurse manager of M.E.’s floor at Wolfson Children’s Hospital. R.A. has no personal knowledge regarding Respondent's examination of her son, M.E. Worthlyn White, an expert witness presented by Petitioner, has no current clinical nursing role or consulting contracts with any other employers at this time. White has a contract/fee agreement with Petitioner to serve as an expert witness. This is the only Florida case in which White has offered an expert opinion. Before she became a consultant for Petitioner, White worked at the facility, Express Care, where she rarely saw pediatric sickle cell patients. Her primary area of certification is neonatal nursing. A neonate is a newborn child up to 28 days of age. Teenagers are not classified as neonates. At the final hearing, White conceded that according to Stedman’s Medical Dictionary for the Health Professional, perineum is defined as the area between the thighs extending from the coccyx to the pubis and lying below the pelvic diaphragm and, accordingly, Respondent's care and examination of M.E.’s perineum was appropriate. Respondent’s total examination of M.E. was within the standard of care and Respondent's femoral pulse check on M.E. was not below the standard of care. Respondent testified regarding his treatment of M.E. on December 6, 2001. Respondent has worked clinically at Wolfson Children’s Hospital for 20 years. He has practiced as a registered nurse in the State of Florida for 12 years. There has never been an investigation of Respondent’s license prior to Petitioner’s allegations in this case. Respondent testified that he performed a required physical examination on M.E on December 6, 2001. When asked his personal opinion on the standard of care, Respondent testified that his treatment of M.E. on December 6, 2001, was appropriate. Cynthia Gerdik, an expert in the area of pediatric nursing, has practiced as a registered nurse for 30 years. She is currently the nurse manager of Pediatric Services at Shands Jacksonville and the manager of the only sickle cell clinic in North Florida. Testimony of Gerdik establishes that Respondent's full head-to-toe assessment on M.E., including an examination of all body systems was within the standard of care. Further, it was within the standard of care for Respondent to perform a femoral pulse check and assess M.E.’s perineum. None of Respondent's actions, pertaining to the treatment of M.E. on December 6, 2001, fell below the standard of care.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That a final order be entered dismissing the complaint against Respondent Gregory Norton. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2003. COPIES FURNISHED: Amy M. Pietrodangelo, Esquire Michael T. Flurry, Esquire Department of Health Bureau of Health Care Practitioner Regulation - Legal 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Harvey L. Jay, Esquire Erica Vitsky, Esquire Saalfield, Coulson, Shad & Jay, P.A. 1000 First Union Tower 225 Water Street Jacksonville, Florida 32202-4458 Dan Coble, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
