The Issue Whether David Weeks, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). 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 the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, 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, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Bethany Weeks and Michael Weeks are the natural parents of David Weeks (David), a deceased minor, and Bethany Weeks is the Personal Representative of her deceased son's estate. David was born a live infant at 11:00 p.m., November 3, 2002, at South Seminole Hospital, a hospital located in Longwood, Florida, and, following the termination of resuscitation efforts, was pronounced dead at 11:30 p.m. David's birth weight was 2,925 grams. The physician providing obstetrical services at David's birth was Christopher Quinsey, 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. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate 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(1) and 766.31(1), Fla. Stat. Here, the proof is compelling that David suffered an injury to the brain caused by oxygen deprivation, secondary to placental abruption, in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, that led inevitably to his death shortly after birth. Consequently, the record demonstrated that David suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim is compensable, 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, provides for an award of the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program. * * * 1. 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. 2. Death benefit for the infant in an amount of $10,000. 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 determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. In this case, Petitioner and NICA have agreed that, should Petitioner elect to accept benefits under the Plan, Bethany Weeks and Michael Weeks, as the parents of David, be awarded $100,000.00, to be paid in lump sum. The parties have further agreed that Petitioner Bethany Weeks, as Personal Representative of the Estate of David Weeks, be awarded a death benefit of $10,000.00, and an award of $4,115.00 for attorney's fees ($1,575.00 for Petitioner's counsel David J. White, Jr., and $2,040.00 for Petitioner's co-counsel Patrick C. Massa) and other expenses ($500.00) incurred in connection with the filing of the claim. Finally, the parties have agreed that no monies are owing for past expenses. Such agreement is reasonable, and is approved. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioner would prefer to pursue her civil remedies, and has averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at David's birth (Dr. Quinsey), failed to comply with the notice provisions of the Plan. 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."). Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied.3 At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "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[4] 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, 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. (Petitioner's Exhibit 7.) Findings related to Mrs. Weeks' prenatal care and notice Initially, Mrs. Weeks received prenatal care at the Seminole County Health Department, where she was first seen on June 18, 2002, and then transferred to Advanced Women's Health Specialists (AWHS) in September 2002, at 29 3/7 weeks' gestation. Notably, Mrs. Weeks had extensive workups at the Seminole County Health Department, and she delivered a copy of her medical records (which she received from the health department on September 13, 2002) to AWHS, most likely at her first visit, Monday, September 16, 2002.5 According to Mrs. Weeks' patient chart, AWHS received the following documents from the health department: a flow sheet; progress notes; history; physical; PAP; blood work/all labs; Chlamydia, gonorrhea, hepatitis results; RPR results; tri-screen results; HIV results; sonogram result; one hour GTT results; and urine culture results. (Doctors' Exhibit 10.) Pertinent to the notice issue, the physicians (who were members of the AWHS group practice) and AWHS presented evidence (through the testimony of Bonnie Mladec, the clinical coordinator for AWHS) that when Mrs. Weeks presented to AWHS for her initial visit, AWHS had a routine pursuant to which all new patients, regardless of the stage of their pregnancy, and regardless of whether they started their prenatal care with another provider, were given a copy of the NICA brochure by the medical assistant who interviewed them, together with eight other documents. (Doctors' Exhibits 1-9.) Four of the documents were informational, and did not require a signature: the NICA brochure; a one-page list of safe medications to use during pregnancy; a one-page document titled "Why Breastfeed?"; and a one-page document explaining the Healthy Start Program. The five documents that required a signature were a Notice to Our Obstetrics Patients (to acknowledge receipt of the NICA brochure)6; consent to HIV Antibody Test form (to accept or decline the test); a Triple Test Screening for Birth Defects form (to accept a decline the test); a Cystic Fibrosis Carrier Testing form (to accept or decline the test); and a Healthy Start Prenatal Risk Screen form (to accept or decline screening). Notably, Mrs. Weeks' chart does not include, as it should if AWHS's routine was followed, a copy of a Notice to Our Obstetric Patients form signed by Mrs. Weeks, or a copy of any of the other forms patients were routinely requested to sign. (Doctors' Exhibit 10; Transcript, pages 21-25.) Nevertheless, the physicians and AWHS contend there is no reason to conclude AWHS's routine was not followed because each test was performed, and AWHS would not have performed the tests absent Mrs. Weeks' written consent. In contrast to the proof offered regarding AWHS's routine, Mrs. Weeks testified that no such routine was followed when she presented for her initial visit.7 According to Mrs. Weeks, no one discussed the Plan with her, she did not receive a NICA brochure, did not sign a receipt for a brochure, and did not sign any other document that would have been part of the routine. Here, the evidence failed to support the conclusion that, more likely than not, AWHS's routine was followed. In so concluding, it is noted that, Mrs. Weeks' chart contains no document signed by Mrs. Weeks that would have been part of AWHS's routine, and contrary to the contention of the physicians and AWHS, and contrary to the testimony they offered to support such contention, the charting of HIV Antibody test results and a Triple Test Screening does not support the conclusion that AWHS's routine was followed. Rather, it demonstrates that AWHS merely accepted the results the health department had obtained. As for the Healthy Start Prenatal Risk Screen, Mrs. Weeks' chart contains no evidence that AWHS presented her with that form to sign. Rather, since the health department's prenatal record reveals that Healthy Start Screening had been completed, given AWHS's acceptance of other department of health testing, and given no further explanation, it is likely AWHS did not pursue the matter. Consequently, as to these forms, the record offers no compelling proof that AWHS followed its routine. Rather, it offers proof to the contrary. As for the Cystic Fibrosis Carrier Test, the record does reveal that test was done at AWHS, and Mrs. Weeks' chart (Antepartum Record, page D, under Comments/Additional Labs) contains an entry ("[C]ystic F[ibrosis]=accepted [,] drawn on 9/16/02") that supports the conclusion she consented to the test at her initial visit. However, given the proof, or lack thereof, these findings are not compelling proof that Mrs. Weeks' consent to the Cystic Fibrosis Carrier Test was part of an invariable routine that was followed at a patient's initial visit. Therefore, the proof fails to support the conclusion that AWHS's routine was followed on Mrs. Weeks' initial visit, or that Mrs. Weeks received a NICA brochure or signed a receipt for a NICA brochure on her initial visit. Findings related to David's birth and notice At or about 8:15 p.m., November 3, 2002, Mrs. Weeks, with an estimated delivery date of November 27, 2002, and the fetus at 36 5/7 weeks' gestation, presented to Labor and Delivery Triage, at South Seminole Hospital, in labor (with evidence of the onset and persistence of uterine contractions). At the time, Mrs. Weeks' chief complaint was noted as "[contractions] most of today, becoming more uncomfortable since [6:00 p.m.]." The notes of the triage nurse (Bernadette Charles, R.N.) include the following narrative: Client received from ER in wheelchair with above complaints. Crying and complain of labor pains. Denies rupture of membranes or bright red vag bleeding. Client's restless and uncooperative. Encouraged to relax between contractions Elevated B[lood] P[ressure] noted. Client complained of headaches, DTRs 3[+ very brisk], no clonus, edema 2 to 3+ . . . [P]ain scale [8- 9/10]. (Petitioner's Exhibit 1, pages 21 and 22; Petitioners Exhibit 6, page 0533.) Initial assessment in triage noted uterine contractions of moderate intensity, every 2 to 3 minutes, with a duration of 40 to 50 seconds. Blood pressure was elevated (164/112), and vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus between station -1 and -2. At 8:45 p.m., Ms. Charles spoke with Lesann Dwyer, a certified nurse midwife (CNM) at AWHS, and at 8:55 p.m., she spoke with Dr. Quinsey, and received orders to admit Mrs. Weeks to labor and delivery. Thereafter, at 9:05 p.m., Mrs. Weeks was moved by wheelchair from triage to labor and delivery room 403, where she was admitted at 9:10 p.m. According to Ms. Charles' admission note: client admitted to LR 403 in early labor . . . P[ain]/S[cale] 6/10-Client crying- uncooperative. Requesting something for pain . . . . According to the medical records, by 9:15 p.m., the time at which the activities were documented, Mrs. Weeks was in her bed, positioned on her right side, and an external fetal monitor and blood pressure monitor were attached. At the time, assessment revealed an elevated blood pressure (173/103); a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability; the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at station -1; moderate uterine contractions, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds; and a pain severity level of 7-8/10. Also noted, an IV had been started, labs drawn, and Mrs. Weeks had been asked to sign a number of documents, including an acknowledgment of receipt of NICA notice.8 The acknowledgement form provided, as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc. and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191/ 1 (800) 398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. Dated this day of , 2002. Signature Name of Patient Social Security No. Witness: Date: Mrs. Weeks concedes she signed the acknowledgment form. However, she denies she received the NICA brochure. Subsequently, at 9:20 p.m., Mrs. Weeks was given Stadal (for pain) and magnesium sulfate (for pregnancy-induced high blood pressure), and at 9:30 p.m., the records note a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability, and contractions of moderate intensity, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds. Thereafter, there is a gap in documentation until 10:00 p.m., when fetal heart rate is noted in the 90 to 100 beat per minute range, Mrs. Weeks is given oxygen and a position change, and Dr. Quinsey is called and updated. Shortly thereafter, at 10:05 p.m., anesthesiology was alerted to a possible cesarean section, and at 10:20 p.m., Ms. Charles attempted to place a fetal scalp electrode and Mrs. Weeks membranes ruptured. By 10:25 p.m., Dr. Quinsey had arrived at the hospital, and was noted at bedside. At the time, Dr. Quinsey observed Mrs. Weeks was having constant abdominal pain, with a tense abdomen, consistent with placental abruption, and an emergent cesarean section was indicated. Under the circumstances, it was Dr. Quinsey's opinion, which was credible and uncontroverted, that inadequate time remained to safely transfer Mrs. Weeks to another hospital prior to delivery, and any transfer may have posed a threat to the health and safety of Mrs. Weeks or her fetus. Given Mrs. Weeks' presentation, a stat cesarean section was called, and Mrs. Weeks was moved to the operating room, where she was admitted at 10:40 p.m. According to the records, surgery started at 10:57 p.m., and David was delivered at 11:00 p.m., with an Apgar score of 1 and 0, at one and five minutes respectively.9 Resolution of the notice issue with regard to the participating physician With regard to Dr. Quinsey, the participating physician who provided obstetrical services at David's birth, the proof demonstrates that, although it was practicable to do so during her prenatal care at AWHS, Mrs. Weeks was not given notice.10 However, since Mrs. Weeks had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, when Dr. Quinsey provided obstetrical services to her on November 3, 2002, he was exempt from the pre-delivery notice requirement, notwithstanding it may have been practicable for him to have provided Mrs. Weeks notice during her prenatal care at AWHS. § 766.316, Fla. Stat.; Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582, 586 (Fla. 5th DCA 2005)("We hold that the statute contains two distinct exemptions, each of which independently provides an exception to the pre-delivery notice requirement. As such, [the hospital] was excused from providing notice to [the patient] when she arrived at the [hospital] under emergency medical conditions, and her previous visits to the hospital during her pregnancy did not negate this clear statutory exemption."). Consequently, with regard to the participating physician, the notice provisions of the Plan were satisfied. Resolution of the notice issue with regard to the hospital With regard to the hospital, it was the hospital's policy to provide the patient with a copy of the NICA brochure, together with an acknowledgment form for the patient to sign acknowledging receipt of the brochure, following admission to labor and delivery. Here, there is no dispute that Mrs. Weeks signed the acknowledgment form at or about 9:15 p.m., following her admission to labor and delivery.11 What is disputed, is whether Mrs. Weeks was given a NICA brochure. Petitioner also contends that 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, Petitioner notes that the hospital had an opportunity to provide meaningful notice during two prior admissions, as well as during Mrs. Weeks' preregistration, but failed to do so, and that "[a]t the time [] the NICA brochure was allegedly given to Bethany Weeks [on November 3, 2002] she was expected to read it while she was having contractions, in pain, receiving lactate ringers, and while labs were being drawn," a less than opportune time. (Petitioner's Proposal Final Order, paragraph 26.) Stated otherwise, Petitioner contends that, if she was given the brochure on November 3, 2002, it was not efficacious notice. However, the hospital, like the participating physician who delivered obstetrical services at David's birth, was exempt from the pre-delivery notice requirement, since when Mrs. Weeks presented to South Seminole Hospital at or about 8:15 a.m., November 3, 2002, she had an "emergency medical condition" ("evidence of the onset and persistence of uterine contractions"), as defined by Section 395.002(9)(b), Florida Statutes, and notwithstanding it may have been practicable for the hospital to have provided Mrs. Weeks' notice during her previous visits to the hospital. § 766.316, Fla. Stat.; Orlando Regional Healthcare Systems, Inc. v. Alexander, supra. Consequently, it is unnecessary to address whether Mrs. Weeks was given a NICA brochure or whether, if given, the notice was efficacious.
The Issue Whether Brianna Renee Joyner, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and participating physician provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2005), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2005),1 or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Chontee Joyner and David Joyner are the natural parents of Brianna Renee Joyner, a minor. Brianna was born a live infant on February 16, 2006, at Lawnwood Regional Medical Center, a licensed hospital located in Fort Pierce, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Brianna's birth by William B. King, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation 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."2 Here, Petitioners and Intervenor took no position on whether Brianna suffered a "birth-related neurological injury." In contrast, NICA was of the view that the record failed to support the conclusion that Brianna's impairments, admittedly substantial, were birth-related. Whether Brianna suffered a "birth-related neurological injury" To address whether Brianna suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-22), that included the medical records associated with Mrs. Joyner's antepartal course, as well as those associated with Brianna's birth and subsequent development. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Raymond Fernandez, M.D., a physician board-certified in pediatrics and neurology with special competence in child neurology, who offered opinions as to the likely etiology of Brianna's impairments. Dr. Fernandez examined Brianna on July 31, 2008, and obtained the following history from Mrs. Joyner: Labor was induced at 39 weeks gestation. Her cervix was 1 cm dilated. She was given Cytotec and Pitocin, and overall duration of labor was 31 hours. Epidural anesthesia was given at 24 hours of labor. Towards the end of the labor, contractions occurred one after the other and she pushed for 2 hours. Vacuum extraction was used, but she was stuck, and she was then extracted manually. Brianna was pale and she did not cry after birth. She was given to Mrs. Joyner for "1 second" and then taken to the nursery because of breathing problems. She was transferred to the NICU because of an apneic spell. Subsequent to discharge she was referred to several specialist[s]. She was found to have a small patent ductus arteriosus that was not felt to be significant. The neurosurgeons found no clinically significant spinal abnormalities. She required PE tubes and tonsillectomy and adenoidectomy because of recurrent ear infections and apneic spells. Hearing is normal. Genetics and neurology have not arrived at a specific diagnosis. She has been enrolled in a developmental therapy program through the Early Steps Program, and has improved slowly, but she remains delayed. Brianna sat straight without support at about 13 months of age. She ambulates by scooting in the sitting position, by pulling with her legs and balancing with her arms. She tries to pull up, but only if offered assistance and encouragement by holding her hands. She reaches for objects, manipulates toys but does not play with them meaningfully, although she likes noisy toys. She rarely puts food in her mouth (Cheerios sometimes). She babbles, but no words are spoken. She does not seem to understand spoken language, but does respond to visual cues. She lifts her arms when a shirt is about to be put on. She plays pat-a-cake, but not consistently. Eye contact is improving. She smiles and is loving with family members, and tends to be anxious in the presence of strangers. She bangs blocks together, but does not stack them. She does not engage in imaginative play. She likes to be read to, and helps turn pages. She watches her younger brother and follows him around the house, and laughs when he does funny things. Physical examination revealed the following: Recent weight was 27 pounds. Head circumference 47.25 cm (approximately 20th percentile). . . . Brianna was alert. She was anxious when approached, and comforted by her mother. She did not babble. No words were spoken. Eye contact was limited. She did not point. Mainly, she sat on her mother's lap and stared about the room and sometimes looked at me. There was no indication that she understood basic verbal requests. She did not point to body parts. She was not interested in toys, and pushed them away when offered. There were no specific dysmorphic features. She has 2 hyperpigmented macular-papular skin markings on her back. One is over the thoracic spine, and the other is to the right of midline. Pupils were equal and briskly reactive to light. Eye movement was full. She tracked visually, but eye contact was limited. Face was symmetric. She swallowed well. Low axial and proximal tone, but normal tone distally in extremities. No obvious weakness noted. She sat independently. She stood and took steps, but only with both hands held by her mother. There was no involuntary movement. Deep tendon reflexes 1+ throughout. Liver and spleen were not enlarged. Funduscopic examination was limited, only able to note normal red reflexes and unable to visualize optic nerves. She inconsistently turned toward sounds and when her name was called. Based on his evaluation of July 31, 2008, as well as his review of the medical records, Dr. Fernandez was of the opinion that Brianna was permanently and substantially mentally and physically impaired. However, with regard to etiology, Dr. Fernandez was of the opinion that Brianna's impairments were, more likely than not, caused by a genetic abnormality, as opposed to a brain injury caused by oxygen deprivation or mechanical injury. In so concluding, Dr. Fernandez observed that the record did not provide evidence of an acute brain injury due to hypoxia or mechanical trauma during labor and delivery. Rather, he noted: There was mild shoulder dystocia but no evidence of upper extremity weakness. There was some medical instability after delivery but no evidence for an acute encephalopathy. Following a single fluid bolus she was then medically stable and began feeding well by the end of day 1. Hypotonia was noted initially and it has persisted without evolution or evidence of spasticity or involuntary movement. The initial brain CT scan [of February 20, 2006] showed no hemorrhage and later brain MRI [of May 18, 2006] was normal. Finally, Dr. Fernandez pointed to the report of Charles Williams, M.D., a geneticist associated with Shands Children's Hospital at the University of Florida, Division of Pediatric Genetics, where Brianna had been seen because of her developmental delay and austic-like features. That report, following chromosome analyses, identified a chromosome deletion, a genetic abnormality, that in Dr. Fernandez's opinion likely explains Brianna's global delay and physical findings. Dr. Willis reviewed the medical records associated with Mrs. Joyner's antepartal course; those associated with Mrs. Joyner's labor and delivery, including the fetal heart rate monitor strips; and those associated with Brianna's newborn course. Based on that evaluation, Dr. Willis was of the opinion that Brianna did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis observed there was no significant fetal distress on the fetal heart monitor during labor; the baby's Apgar scores were normal (8 at one and five minutes); the baby did not require any significant resuscitation at birth (only suctioning and blow-by oxygen); and CT scan of the head on February 20, 2006, was negative, without evidence of hypoxic changes. When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Fernandez and Willis were not controverted or shown to lack credibility. Consequently, it must be resolved that the cause of Brianna's impairments was most likely a developmentally based genetic abnormality, as opposed to a "birth-related neurological injury." See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). The notice issue Apart from issues related to compensability, Petitioners have sought an opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the participating physician and the hospital. § 766.309(1)(d), Fla. Stat. 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."). Consequently, it is necessary to resolve whether the health care providers complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearing, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2005), 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 (2005), 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."). Resolution of the notice issue When, as here, the Petitioners dispute that the healthcare providers complied with the notice provisions of the Plan, "the burden rest[s] on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied." Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004). Here, the parties' Pre-Hearing Stipulation and Stipulated Record (Exhibits 1-22) provide no such evidence. Consequently, it must be resolved that Lawnwood Regional Medical Center and William B. King, M.D., failed to establish they complied with the notice provisions of the Plan, or that any such failure was excused because the patient presented in an "emergency medical condition" or the giving of notice was otherwise "not practicable."3
Findings Of Fact Based upon the evidence adduced at the July 14, 1993, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Kathleen Behan is the natural daughter of Mary Lou and Gerald Behan. She was born on November 30, 1989, at Plantation General Hospital in Broward County, Florida. Her birth weight was in excess of 2500 grams. Kathleen was delivered by caesarian section performed by the family's obstetrician, Mariano J. Rodriguez, Jr., M.D., after her mother had experienced a spontaneous rupture of the fetal membrane. At the time of Kathleen's birth, Dr. Rodriguez was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. Kathleen had an Apgar score of 6 one minute after birth and an Apgar score of 9 five minutes after birth. Apgar scores reflect the attending physician's or nurse's assessment of the newborn infant's well-being based upon clinical observations regarding the infant's heart rate, respiratory effort, color, muscle tone, and reflexes. The higher the score, the greater the state of well being. The highest score attainable is a 10. Apgar scores are commonly used to determine if a newborn infant has suffered a neurological injury of a substantial and permanent nature during labor or delivery or in the immediate post-delivery process. Kathleen's Apgar scores are not consistent with her having suffered such a birth-related injury. After her condition was evaluated, Kathleen was taken from the delivery room to Plantation's "well-baby" nursery. She remained there without incident until December 2, 1989, when she was found asystolic in her crib after having experienced an acute life-threatening event or ALTE. Kathleen was resuscitated and survived the incident. She, however, has neurological impairment. The neurological impairment from which she now suffers was not the product of oxygen deprivation or mechanical injury that occurred during labor or delivery or in the immediate post-delivery period.
