The Issue Whether Petitioners' claim qualifies under the Florida Birth-Related Neurological Injury Compensation Plan. See § 766.309(1)(a) and (b), Fla. Stat.1 Whether notice was accorded the patient (mother) by the healthcare providers, 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 in Section 395.002(8)(b), Florida Statutes, or the giving of notice was not practicable.2
Findings Of Fact Krystle-Lyn Arens is the natural mother of Logan Allgood. Keith Allgood is the natural father of Logan Allgood. Logan Allgood was born a live infant on September 2, 2005. Logan Allgood was born at LRMC. There is no dispute that LRMC paid the money and filed its required paperwork in accordance with the NICA Plan so that it constitutes a licensed Florida hospital that is "covered" by the NICA Plan. Logan Allgood's birth weight was 3,963 kilograms.5 Jeffrey Puretz, M.D., delivered obstetrical services in the course of labor, delivery, and resuscitation in the immediate post-delivery period in a hospital. Moreover, there is no longer a dispute among the parties that at all times material, Dr. Puretz and Patricia Richey, ARNP/CNM, were "participating physicians" in the NICA Plan, as defined by Sections 766.302(7) and 766.314(4)(c), Florida Statutes. At all times material, Jeffrey Puretz, M.D., was employed with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. Dr. Puretz provided Ms. Arens a NICA acknowledgment form bearing the Lakeland OB/GYN P.A. letterhead, more than a week after Logan Allgood was born, and Ms. Arens signed it. No party contends that this document or a contemporaneous provision of information about NICA is sufficient pre-delivery notice by which Ms. Arens could make an informed choice of physician or hospital prior to Logan's birth. The exhibits herein show that Logan Allgood suffered a hypoxic ischemic event which occurred in the course of labor and delivery. Each party has stipulated or does not contest that Logan Allgood suffered a "birth-related neurological injury," as defined in Section 766.302(2), Florida Statutes, or that the Order entered herein on April 1, 2009, determined that Logan had suffered a "birth-related neurological injury."6 Lakeland OB/GYN, P.A., does business in its own name, housing its medical physicians specializing in obstetrics, at 1733 Lakeland Hills Boulevard, and does business as Central Florida Women's Care in a separate building located four blocks further south at 1525 Lakeland Hills Boulevard, where it houses its certified nurse midwives. Physicians supervise the midwives on a rotating basis. On January 17, 2005, Ms. Arens, who was then age 15 and who had just learned she was pregnant, went with her mother and her child's father to Central Florida Women's Care. This was her first and only contact with either Central Florida Women's Care or Lakeland OB/GYN, P.A., prior to her arrival at the hospital, LRMC, for a full-term delivery on August 30, 2005. She had no appointment, and was told that in order to be seen by a midwife or physician, the provider required that she be interviewed and fill out and sign specific forms. On January 17, 2005, at Central Florida Women's Care, while her mother and Mr. Allgood waited elsewhere in the building, Ms. Arens was interviewed by a licensed practical nurse, Betty Kelly, LPN. Ms. Arens experienced no "hands on" examination by anyone on that date, but she did fill out or provide information for many patient forms, including a genetic screening and infection screening. In Central Florida Women's Care's file, there is an initial physical examination sheet, which is essentially an oral medical history and status provided by Ms. Arens and written down by her or Nurse Kelly. It is not the result of a "hands on" examination, but it may have involved Ms. Arens being weighed. There are notes about plans to bottle- feed her baby; her current medications; her asthma; and her relatives' health issues. There are signed rejections by Ms. Arens of HIV and CF testing. The HIV and CF forms name Central Florida Women"s Care as "a Division of Lakeland OB-GYN, P.A." Ms. Kelly gave her a prescription for prenatal vitamins. Ms. Arens also executed an acknowledgment of receiving a NICA brochure explaining her rights under NICA. The NICA acknowledgment form that Ms. Arens signed, dated, and placed her social security number on at Central Florida Women's Care on January 17, 2005, bore the Central Florida Women's Care letterhead and read: NOTICE TO OBSTETRIC PATIENT RE: NICA PARTICIPATION I have been furnished information by Central Florida Women's Care, prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Drs. Alvarez, Puretz, Damian, Caravello, & Nixon and the midwives associated with their practice: Jill Hendry, Patricia Richey, Joan Bardo, Pam Barany and Sheri Small participate in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), 1435 Piedmont Drive East, Suite 101, Tallahassee, Florida 32312 telephone number 1 (800) 398-2120. I further acknowledge that I have received a copy of the brochure prepared by NICA. (Emphasis added). This form also shows Betty Kelly's signature as witnessing Ms. Arens' signature. Both women acknowledged their signatures. Ms. Arens also acknowledged writing in the date and her social security number, but she could not remember if she received a NICA pamphlet that day or not. According to Ms. Arens, although she was a minor, her mother let her sign all her own papers throughout her pregnancy. On January 17, 2005, Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care did not bill until a patient was seen by a nurse midwife or medical physician. Ms. Arens left Central Florida Women's Care without seeing one of those professionals. A few days later, she decided not to return because she had decided she wanted physicians, not midwives, overseeing her prenatal care and delivery. (NICA Exhibit 13, page 9). She did not fail to make a another appointment with Central Florida Women's Care because of an informed choice to select a non-participating physician or because of an informed choice to avoid NICA's limitations. Ms. Arens obtained pre-natal care from late January 2005, until May or June 2005, from Exodus Women's Center, a practice unaffiliated with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. Whether or not members of Exodus were NICA participants does not appear in this record. Ms. Arens testified she left Exodus because she wanted a perinatologist. However, the next and last physician Ms. Arens consulted for prenatal care, Dr. Hamagiri Ravi, testified that she was not a perinatologist, and Ms. Arens' mother testified that she, the mother, had selected Dr. Ravi, because Dr. Ravi accepted Medicaid patients, such as Ms. Arens, and would see Ms. Arens quickly. There is no evidence Ms. Arens left Exodus to avoid NICA's limitations. Approximately three months before Logan's birth, Ms. Arens presented to Dr. Ravi to provide her prenatal care. Dr. Ravi is a non-participating physician. Dr. Ravi does not deliver babies. She also does not have privileges at any hospital or provide NICA brochures or counseling. On the first visit, Dr. Ravi has each of her patients sign a document acknowledging that Dr. Ravi will not be her delivering physician. Ms. Arens signed such a form, which read: To whom it may concern This is to inform you that I am very happy to be taking care of all of your prenatal needs at this office. However, I will not be your delivering physician. At the time of delivery you will go to the hospital of your choice to be delivered by the doctor on call. A copy of your records will be provided to you to preregister at the hospital of your choice. For your C-section needs, alternate measures will be arranged with a different physician. By signing below, you agree with the above conditions of prenatal care. Ms. Arens did not pre-register with any hospital for delivery of her child, who was due on August 30, 2005. On August 30, 2005, her due date, Ms. Arens and her mother went to Dr. Ravi's office. Dr. Ravi documented Ms. Arens' blood pressure as elevated to 140/80. Ms. Arens also was suffering from edema, and tests determined there was protein in her urine elevated to +3. Dr. Ravi contacted the obstetrician on-call at LRMC's emergency room and told him Ms. Arens was coming in. She told Ms. Arens to go straight to the LRMC emergency room for evaluation in a hospital setting and for possible induction of labor. Ms. Arens was stable when she left Dr. Ravi's office, but she expected that her child would be delivered when she got to the hospital. Ms. Arens presented to LRMC's emergency room at approximately 5:00 p.m., on August 30, 2005. She was seen in the emergency room by the physician who had relieved the physician to whom Dr. Ravi had spoken by telephone. When Ms. Arens presented to LRMC’s emergency room on August 30, 2005, she had proteinuria and elevated blood pressure. Vaginal examination revealed slight dilation, slight minimal effacement, and no vaginal bleeding. Her water had not yet broken and her membranes were not ruptured. Ms. Arens was not yet in labor. However, Ms. Arens' blood pressure was measured in LRMC's emergency room as 153/76. Lab work was begun. (Emergency Room records). At approximately 6:30 p.m., on August 30, 2005, Ms. Arens was moved to LRMC's labor and delivery floor for continued evaluation, including urine tests. On the labor and delivery floor, she was immediately seen by LRMC's Patient Access Representative, Kim Lepak. Ms. Lepak's normal routine was to provide each new patient with a packet of information specific to that patient's situation. Part of Ms. Lepak's responsibilities included providing each new obstetric patient with a packet that includes a Privacy Act explanation, a Patient's Rights form, and the NICA brochure. Ms. Lepak was also responsible for obtaining the patient's signature on forms that included assignment of benefits, releases, acceptance of financial responsibility, permission for treatment, and a form acknowledging that the patient had received the explanatory NICA brochure. LRMC's NICA acknowledgement form was signed by both Ms. Arens and Ms. Lepak, and dated August 30, 2005. It reads: RECEIPT ACKNOWLEDGMENT OF FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION INFORMATION (See Section 766.316, Florida Statutes) I have been furnished information by Lakeland Regional Medical Center prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that my doctor and all nurse midwives associated with my doctor's practice participate in the Florida Birth Related Neurological Injury Compensation program, wherein, certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), 1435 East Piedmont Drive, Suite 101, Tallahassee, Florida, 32312, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. (Emphasis added) Ms. Lepak testified that the form also bore an LRMC stamp that had been applied in the emergency room, showing Ms. Arens was assigned by LRMC to CNM Joan Bardo on the labor and delivery floor. LRMC required all physicians and CNMs practicing at LRMC to be NICA "participating physicians," and CNMs were assigned by the hospital on 24-hour shifts in 2005. On their shifts, physicians were on-call, usually in the hospital. Dr. Puretz testified that under these conditions he and his practice rely on the hospital to notify patients of the NICA provisions. Ms. Arens and Ms. Lepak did not specifically recall whether Ms. Arens received the NICA brochure, but both identified their signatures on the acknowledgment form. Ms. Lepak testified that, based on her routine procedure, she would have presented the pamphlet to Ms. Arens, watched Ms. Arens sign the acknowledgment, and finally Ms. Lepak would have signed as a witness to Ms. Arens' signature and added her own witness information after Ms. Arens had signed. On the labor and delivery floor, during August 31, 2005, Ms. Arens' blood pressure readings ran mostly in the 130's/80's, and her urine was monitored. Joan Bardo, CNM, was practicing with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. (See Finding of Fact 16). Nurse Bardo was Ms. Arens' "attending physician" upon Ms. Arens' admission to LRMC's labor and delivery floor sometime around 6:30 p.m., August 30, 2005. Ms. Arens did not begin labor on Nurse Bardo's shift, which ended at 8:00 a.m., August 31, 2005, when she was relieved by Sheri Small, CNM. Sheri Small, CNM, relieved Nurse Bardo. Nurse Small was also practicing with Lakeland OB/GYN P.A. d/b/a Central Florida Women's Care. (See Finding of Fact 16). According to Ms. Small's notes on August 31, 2005, Ms. Arens was administered cervidil to induce labor and on September 1, 2005, was administered pitocin to induce labor. Patricia Richey, CNM, also practiced with Lakeland OB/GYN, d/b/a Central Florida Women's Care in 2005. (See Finding of Fact 16). When she came on the floor at 7:00 a.m., on September 1, 2005, she relieved Nurse Small. Nurse Richey was assigned by LRMC to render care to Ms. Arens. At 10:30 a.m., September 1, 2005, Ms. Arens' contractions were noted by Nurse Richey to be frequent but difficult to monitor. During the last part of Nurse Richey's 12-hour shift, Dr. Puretz, also of Lakeland OB/GYN (see Finding of Fact 16), was her supervising physician. He came on-call in the hospital, beginning between 6:30 and 7:00 p.m., on September 1, 2005. At 2:08 a.m., on September 2, 2005, Ms. Arens was completely dilated and pushing began with contractions every two minutes. At 4:35 a.m., September 2, 2005, Nurse Richey called Dr. Puretz to assist with delivery. Fetal heart tones had increased to 170-180 beats per minute. At 4:45 a.m., September 2, 2005, Nurse Richey notified Dr. Puretz of Ms. Arens' progress and requested evaluation for possible vacuum extraction. Care of Ms. Arens was transferred to Dr. Puretz at approximately 5:00 a.m., September 2, 2005. At that time, he documented that Ms. Arens had a 101-degree temperature and her unborn baby was experiencing mild fetal tachycardia. This was the first time Ms. Arens and Dr. Puretz had been in each other's presence. Upon examination, Ms. Arens was fully dilated. There was an arrest of descent. The baby was wedged in her pelvis. At 5:10 a.m., September 2, 2005, Dr. Puretz evaluated Ms. Arens, and elected to do a Caesarian section delivery, believing that vacuum extraction was not prudent. At 5:35 a.m., September 2, 2005, Ms. Arens was moved, under Dr. Puretz' care, to an operating room, and at 6:15 a.m., Logan was delivered. (See Finding of Fact 10).
The Issue At issue is whether Clorinda Colwell, a minor, suffered a "birth-related neurological injury," as defined by Section 766.302(2).1
Findings Of Fact Preliminary Findings Petitioners, Stephen Colwell and Clorinda Colwell, are the natural parents and guardians of Clorinda Colwell, a minor. Clorinda was born a live infant on December 6, 2002, at Central Florida Regional Hospital, a hospital located in Sanford, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Clorinda's birth was John Parker, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan. 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 or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2). See also Sections 766.309 and 766.31. Here, indisputably, the record demonstrates that Clorinda's development has been age appropriate, and she evidences neither mental impairment nor physical impairment, much less a substantial mental and physical impairment. Consequently, for reasons appearing more fully in the Conclusions of Law, Clorinda does not qualify for coverage under the Plan.
The Issue Whether Emma Mae Giroux, a deceased minor, suffered a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of her birth, as required for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement, with the nurse midwife, participating physician, and the participating physician's professional association, bars them from recovery under the Plan. Whether the Division of Administrative Hearings must resolve whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan coverage and pursue such a civil suit.
Findings Of Fact The parties' stipulation By their Pre-Hearing Stipulation, filed October 11, 2002, the parties agreed, as follows: The parties, specifically the Petitioners, the Respondent, and Intervener, AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center, and further to the Status Conference conducted on October 3, 2002, and in lieu of the ALJ conducting a trial of this matter, due stipulate and agree as to the following as a predicate for the ALJ's ruling on the issue of compensability of this claim, to wit: FACTUAL STIPULATIONS That the Petitioners are the legal representative of the deceased minor child. That Emma Mae Giroux was delivered at North Ridge Medical Center on May 3, 1999, and weighed in excess of 2500 grams. That Donna Hamilton was a certified nurse midwife who provided obstetrical services and was present at the birth of Emma Mae Giroux. That Ronald Tuttleman, M.D. was a participating physician in the NICA Plan for 1999. That Donna Hamilton acted under the direct supervision of Ronald Tuttleman, M.D. and that obstetrical services were therefore provided by a participating physician in the NICA Plan, including by virtue of Dr. Tuttleman ordering Pitocin for Kristina Giroux at approximately 12:30 p.m. on May 3, 1999. That Emma Mae Giroux sustained a "birth- related neurological injury" as defined by §766.302, Fla.Stat. That Emma Mae Giroux passed away on May 10, 1999. That proper notice in accordance with §766.316, Fla.Stat., was provided by North Ridge Medical Center prior to delivery. Although the issue of notice by Dr. Tuttleman is moot, the Petitioners acknowledged that Dr. Tuttleman did provide notice to Kristina Giroux of his participation in the NICA Plan prior to delivery pursuant to §766.316, Fla.Stat. LEGAL STIPULATIONS 1. That during the pendency of this action, the Petitioners unilaterally negotiated a settlement with the other interveners, specifically, Donna Hamilton, C.N.M. ("Hamilton") and Ronald M. Tuttleman, M.D. & Ronald M. Tuttleman, M.D., P.A. (Collectively "Tuttleman"), for the total sum of $350,000.00. The Petitioners having elected to receive this civil settlement from the Interveners, Hamilton and Tuttleman, acknowledge that the Petitioners may not receive any benefits from the Respondent under the NICA Plan, pursuant to §766.301, et seq., including specifically pursuant to §766.303(2) & §766.304, Fla.Stat. The Petitioners do reserve the right to proceed against North Ridge Medical Center solely under the statutory exceptions based on theories of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, if and as applicable. North Ridge Medical Center, by entering into this Stipulation, does not waive any of its rights or immunities under the NICA Plan and does not stipulate to the effect of Petitioners' aforedescribed civil settlement. EVIDENTIARY STIPULATIONS The parties do further stipulate as follows in the event an Evidentiary Hearing is rendered unnecessary by this Stipulation: The medical records filed and attached to the Petition shall be admitted into evidence. The medical report of Donald Willis, M.D. dated April 2, 2002, and attached to NICA's Notice of Compensability and Request for Hearing, shall be admitted into evidence. There are no further medical records to be admitted into evidence in this administrative proceeding, and no depositions shall be admitted into evidence in this administrative proceeding. That the Administrative Law Judge shall enter a Final Order with his legal rulings based upon the Stipulated Facts set forth herein, and based upon any other matters appearing within the pleadings and records on file. Consistent with the terms of the parties' stipulation, the medical records filed with DOAH on March 11, 2002 (marked Joint Exhibit 1) and the medical report of Donald Willis, M.D., filed with DOAH on April 10, 2002 (marked Joint Exhibit 2) were received into evidence. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan when an infant suffers 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 post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the parties agree, and the proof is otherwise compelling, that Emma suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim qualifies for coverage under the Plan; however, given Petitioners' settlement with the nurse midwife and participating physician, and for reasons appearing more fully in the Conclusions of Law, Petitioners are foreclosed from pursuing an award under the Plan. Jurisdiction
The Issue For the purpose of determining compensability, whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital; and whether notice was accorded the patient, 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 in section 395.002(8), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Petitioners are the parents and natural guardians of Jacob. Jacob was born a live infant on January 18, 2008, at Adventist Health, a hospital located in Orlando, Florida. At the time of delivery, Mrs. Frybarger was 33 weeks and four days pregnant. Franklyn Christensen, M.D., provided obstetrical services in the course of Jacob’s delivery, and during resuscitation in the immediate post-delivery 1 Intervenors objected to the testimony of Ronald Davis, M.D., and subsequently filed a post- hearing Motion to Strike Petitioners’ Testimony of Witness Ronald Davis, M.D. The motion is granted in part and denied in part. The undersigned will not consider the testimony of Dr. Davis regarding his treatment of Jacob from February 16, 2017, through November 25, 2019, as Intervenors would suffer prejudice as they were unaware of said treatment until after Intervenor’s case-in-chief had concluded. The undersigned will consider, however, Dr. Davis’s observations and opinions as to Jacob’s mental impairment, and the undersigned concludes that Intervenors suffer no prejudice as a result. Finally, the undersigned will consider Dr. Davis’s treatment record from November 25, 2019, and Respondent’s Exhibit 6 is admitted into evidence. The undersigned concludes Intervenors will not suffer prejudice as a result. period. Dr. Christensen was a participating physician in the Plan on the date of delivery. Athena Theodosatos, M.D., assisted in the delivery. Dr. Theodosatos was a resident physician at the time of delivery, and is deemed a participating physician in the Plan at the time she rendered obstetrical services. Jacob was delivered via Caesarean-section delivery. The delivery took approximately 51 minutes to complete. At some point during the procedure, the placenta was cut, which resulted in bleeding. Accordingly, there was blood loss to the placenta and to Mrs. Frybarger. As a result, there was also blood loss to Jacob during the process of delivery and in the immediate post- delivery period. The blood loss, in turn, resulted in oxygen deprivation to Jacob during the delivery and resuscitation in the immediate post-delivery period. Jacob was a single gestation weighing over 2,500 grams at birth. Jacob suffered an injury to his brain caused by mechanical injury leading to oxygen deprivation that occurred in the course of delivery and resuscitation in the immediate post-delivery period in the hospital. There is no known genetic or congenital abnormality that resulted in Jacob’s brain injury. The injury to Jacob rendered him permanently and substantially physically impaired. There is no dispute that the injury to Jacob rendered him permanently mentally impaired. At issue is whether the injury to Jacob’s brain rendered him substantially mentally impaired. Petitioners and Respondent contend that the brain injury impairment does not rise to the level of substantial. Intervenors contend the brain injury did render him substantially mentally impaired. 2 Intervenors’ Experts Intervenors offered the testimony of Anthony Mancuso, M.D. Dr. Mancuso is board-certified in diagnostic radiology, with a subspecialty in neuroradiology. Dr. Mancuso practices at University of Florida Health, and is the Chairman of the Radiology Department at the University of Florida College of Medicine. Dr. Mancuso reviewed MRI imaging of Jacob’s brain from February 2009 and June 2012, as well as Jacob’s medical records. He opined that Jacob did suffer a hypoxic ischemic injury to his brain based on the imaging findings and the circumstances surrounding the delivery and the resuscitation of Jacob following a difficult delivery. Dr. Mancuso testified that the MRI imaging demonstrated a pattern that was entirely consistent with a hypoxic ischemic injury and that the imaging showed a substantial amount of permanent injury to the brain that would reasonably result in substantial mental and physical neurologic deficits. In terms of the frontal lobes, the parietal, the occipital lobes, the corpus callosum, and to a lesser degree the temporal lobes of Jacob’s brain, based upon the images of Jacob from approximately one year after birth and when he was approximately four years old, Dr. Mancuso opined that the imaging evidence is predictive of and supports substantial mental and 2 Pursuant to Florida Administrative Code Rule 28-106.205(1), persons other than the original parties to a pending proceeding whose substantial interests will be affected by the proceeding and who desire to become parties may move the presiding officer for leave to intervene. The undersigned acknowledges that an intervenor’s rights are subordinate to the rights of the parties and an intervenor’s status exists “only so long as the litigation continues between the parties” and is “lost altogether if the parties decided to settle the case or voluntarily dismiss it.” Louis Del Favero Orchids, Inc. v. Fla. Dep’t of Health, 2020 Fla. App. LEXIS 1531 at *5 (Fla. 1st DCA 2020) quoting Environmental Confederation of S.W. Fla, Inc. v. IMC Phosphates, Inc., 857 So. 2d 207 (Fla. 1st DCA 2003). Here, Petitioners filed their Petition “under protest,” asserting they were not “claimants” and not seeking NICA compensation. Notwithstanding, as Respondent disputes the compensability of the injury, the undersigned must, in its present posture, determine the claim. §§ 766.304, 766.309, 766.301(1) and 766.31, Fla. Stat. physical neurological deficits. Dr. Mancuso further opined that, based on the imaging, the corpus callosum, the white matter that connects the lobes, was diminished, leading to a highly disconnected brain. Dr. Mancuso opined that the brain injury, as demonstrated on imaging, would be predictive of impaired cognitive functioning as measured by intelligence tests, impaired expressive and receptive language skills, the necessity of substantial accommodations in school, below average cognitive or academic skills, impaired perceptual and processing abilities, and the necessity of special assistance to learn and develop intellectually to reach his full potential. He further opined that the diminished corpus callosum would be predictive of Jacob’s inability to transfer his cognitive skills into adequate learning in a normal manner and that his ultimate vocational options would be limited by these neurologic deficits. Dr. Mancuso, who had never seen Jacob nor treated him, credibly acknowledged that his opinions would require confirmation by physical examination and neuropsychiatric testing. The undersigned finds Dr. Mancuso’s opinions, as set forth above, credible and persuasive. Intervenors also offered the testimony of Russell Addeo, Ph.D. Dr. Addeo received his Ph.D. in neuropsychology from the University of Florida and is a board certified clinical neuropsychologist. He is the Director of Behavioral Medicine at Brooks Rehabilitation. As a neuropsychologist, Dr. Addeo makes determinations, on a daily basis, with respect to a patient’s degree of mental impairment. On March 21, 2019, when Jacob was 11 years, two months old, a Compulsory Neuropsychological Examination of Jacob was conducted at Brooks Rehabilitation. A Forensic Neuropsychological Evaluation Report was generated after the neuropsychological evaluation, assessment, and record review. Dr. Addeo’s opinions and report are based on the results of the standardized testing conducted, his analysis of depositions in this matter, review of Jacob’s educational records, medical records, and past neuropsychological exams. The criteria he considered in rendering his opinion included an analysis of cognitive function; an analysis of intelligence tests; analysis of language skills; whether special accommodations were necessary; Jacob’s perceptual and processing abilities; whether Jacob can learn and develop intellectually without substantial accommodations; whether he can translate his cognitive abilities into adequate learning; an analysis of Jacob’s social and vocational developments; and the degree to which he is impaired. Dr. Addeo testified and explained the neuropsychological exam and results in detail. His neuropsychological exam was conducted over a period of approximately seven hours. The results of the examination are fairly summarized in the 30 page report, which was admitted into evidence and addressed at length during the hearing. Dr. Addeo’s ultimate opinion is that Jacob is substantially mentally impaired. In reaching this opinion, inter alia, Dr. Addeo relied upon Steadman’s Medical Dictionary for informing himself as to what the terms “substantial” and “mental impairment” refer to. He testified that the general definition of the term “substantial” means “significantly–considerable in quantity and significantly great.” Dr. Addeo testified that “mental impairment” to him is “really a disorder characterized by the display of an intellectual defect as determined by things like diminished cognitive, interpersonal, social and vocational effectiveness and by psychological exam and assessment.” With respect to the testing, Dr. Addeo assessed Jacob’s full scale IQ to be a 52. This score, which falls in the severely impaired category, places Jacob at the .01 percentile, meaning 99.9 percent of the population’s scores are above his. In the subcomponent of verbal IQ, Jacob scored an 81. Jacob’s verbal IQ is a relative strength for him, and, if standing alone, would place him in the mildly impaired category. Jacob’s performance IQ resulted in a score of 45, placing him in the severely impaired category. Dr. Addeo acknowledged that Jacob has significant visual and fine motor skill deficits and the difficulties that the same present: It’s true, but some of it is difficult to establish, you know, to separate (visual and motor deficits from cognitive) but I tried to give tests and tried to look at how he’s doing cognitively. I don’t want to say that Jacob has got substantial mental impairment when in fact it just may be that he has some visual difficulty or that he has motor difficulty. Dr. Addeo was aware that Jacob is legally blind and, at times, utilizes a magnifier in the classroom. Jacob has nystagmus, an involuntary eye movement that makes it difficult to focus vision, which was observed during the testing. Indeed, Jacob’s eyes were observed darting up and to the right several times per minute. Dr. Addeo credibly opined that this condition “most likely” would affect his ability to focus and visualize materials. During the testing, Jacob did not utilize a magnifier, and, while not precluded from doing so, did not have the assistance of a paraprofessional (as he has at school). During the testing, Dr. Addeo attempted to remove from consideration difficulties that might be introduced due to Jacob’s visual and motor deficits. As an example, Dr. Addeo described two tests where vision is not a factor and yet Jacob still performed poorly. On one test, Jacob was asked if there were three ducks on a lake and one flies away, to state how many remained. Jacob’s answer was four. Even when told that was incorrect, Jacob would repeat that answer. He also had difficulty with determining the value of money. The results of the examination revealed the following scores: for the working memory index, fluid reasoning index, and visuospatial index he scored in the .1 percentile or lower. In the verbal comprehension index, a relative area of strength for Jacob, he scored in the 10th percentile. In math and reading, he scored at the .05 percentile (95 percent of the population better than him in academic skills). With respect to attention and concentration, Jacob scored poorly. His score on the ability to repeat digits forward and backward and sequence them was in the 1st percentile, and in the auditory attention response test, he scored in the 2nd percentile. Dr. Addeo testified that neither of these tests is affected by visual/motor deficiencies. In the Auditory Response Set Correction, Jacob scored in the .1 percentile (99.9 percent of the population scored higher). Jacob performed relatively well on verbal executive skills: similarities (25 percent), letter fluency (9 percent), category switching (16 percent), total set loss errors (37 percent), and total repetition errors (5 percent). In matrix reasoning, however, where Jacob was presented with a square composed of four red triangles, and one was missing, he could not correctly solve the problem. Notwithstanding his visual deficiencies, Dr. Addeo testified that Jacob would could see and make out the shapes and colors. With respect to language and verbal reasoning, Jacob scored in the .5 percentile in expressive vocabulary and at the 1st percentile in categorical fluency (the ability to tell category names of things: girl’s names, animals, and etc.). Jacob did relatively better in similarities, scoring in the 25th percentile. Jacob had a difficult time with comprehension of instructions, which included no visual or motor skills for the most part, obtaining a score of .1 percentile. Not surprising, based on his visual and fine motor deficits, Jacob performed poorly on spatial and visual reasoning, scoring in the .1 percentile or below. Dr. Addeo noted that Jacob’s verbal memory for stories and for lists of items was in the low average to average range. He further noted that Jacob performed better on verbal memory on this occasion than on the prior testing performed with Dr. Kanter (discussed below). Jacob’s educational history is discussed, in detail, in a separate section of this Order below. Dr. Addeo in formulating his ultimate opinion, in part, considered Jacob’s education records. Accordingly, his opinions on the matter are set forth here. As Jacob has been determined as a student with a disability pursuant to the Individuals with Disabilities Education Act (IDEA), he has an individualized educational program (IEP). Dr. Addeo reviewed Jacob’s IEPs over the years. In doing so, Dr. Addeo observed that Jacob is enrolled in an “access points” curriculum for English/language arts, mathematics, social studies, and science. Accordingly, the grading is different from courses following the general curriculum and Jacob does not have to take the same standardized tests as other children. Jacob’s IEPs document multiple accommodations and services that he receives on a daily basis while in school. Dr. Addeo credibly opined that Jacob will always require these services and accommodations to learn and develop intellectually. While some of Jacob’s language skills are better than others, he has significant difficulty with expressive and receptive language skills and impaired perceptual and processing abilities. Dr. Addeo opined that despite substantial accommodations in school, he has not achieved average cognitive or precognitive skills. While Jacob’s memory in some areas is a relative strength, he has difficulty with translating his cognitive abilities into normal learning. With respect to his future, Dr. Addeo opined that while Jacob can speak, communicate, and conduct a conversation, his social and vocational development has been drastically impaired and that his probability of employment, outside of a “benevolent employer,” is not very high. Dr. Addeo agreed that Jacob might be able to be employed in the future answering phones. The undersigned finds that Dr. Addeo’s opinions, as set forth above, and the findings set forth in the report, to be credible and persuasive. Intervenors also presented the testimony of Stewart Ater, M.D. Dr. Ater is a board certified pediatrician and neurologist with special qualifications in child neurology. In 2016, Intervenors retained Dr. Ater to conduct a neurological examination of Jacob. The examination was conducted on June 17, 2016, in Orlando, Florida, when Jacob was eight years, four months old. While Dr. Ater spent approximately 10 hours reviewing Jacob’s medical and educational records prior to the examination, the examination spanned approximately one hour. Dr. Ater’s ultimate opinion in this matter is that Jacob “does have substantial neurological problems, cognitive as well as cerebral palsy motor problems” and that Jacob satisfies the criteria for a birth-related neurological injury. Dr. Ater credibly testified, based on his training and experience, review of the available records and physical examination, that Jacob sustained a hypoxicischemic brain injury during the course of delivery and the post-delivery period. Dr. Ater testified that, upon examination, he found Jacob’s intellectual and executive functions were obviously and severely impaired. In support of this position, Dr. Ater explained that Jacob, at the age of eight, misspelled his own last name, could not accurately identify his birth month or date, and could not read the word “father.” Dr. Ater conceded that, during the examination, Jacob was able to answer questions regarding his grade, his teacher, his favorite subjects and the reasons therefore. Jacob also demonstrated some ability to follow some directions correctly and spontaneously commented upon when his counsel left and returned to the room during examination. Jacob also informed Dr. Ater that he (in the past) would advise his parents when he felt a seizure coming on and recalled the name of his seizure medication. Due to his visual deficits, it appears that Jacob had some degree of difficulty in reading the print provided during the examination. According to Dr. Ater, Jacob has impaired cognitive functioning as measured by intelligence tests and, following his evaluation, recommended that Jacob undergo a neuropsychological evaluation. Dr. Ater opined that more recent psychoeducational or neuro-psychoeducational testing is more reliable than similar testing performed at a young age as “[a]reas of the brain . . . need to develop more complex functions as children grow and get older, that children typically grow into their deficits” and “[t]hat is as the other people in their classes learn more and more complex things, these kids fall farther and farther behind.” Accordingly, Dr. Ater opines that IQ scores generally tend to be more accurate at an older age than a younger age. Based upon document review and examination, Dr. Ater opined that Jacob clearly has problems with both expressive and receptive language, but the same are not as damaged as other cognitive areas. Based upon his review of Jacob’s educational records, he opined that, despite substantial accommodations in school, he has not achieved average cognitive or pre- academic skills. Jacob, in his opinion, has impaired perceptual and processing abilities and requires substantial educational help in an exceptional student education (ESE) program and is not able to translate his cognitive capabilities into adequate learning in a normal manner. With respect to his future, Dr. Ater opines that Jacob’s social and vocational development has been drastically impaired. Dr. Ater testified that Jacob is not likely to be employed in meaningful competitive work and will not be able to live independently. The undersigned finds that Dr. Ater’s opinions with respect to whether Jacob sustained a hypoxic-ischemic brain injury during the course of delivery and the post-delivery period to be credible and persuasive. The undersigned further credits and finds persuasive Dr. Ater’s opinions regarding the reliability of more recent psychoeducational or neuro-psychoeducational testing and that that IQ scores generally tend to be more accurate at an older age than a younger age. The undersigned finds, however, that Dr. Ater’s testimony regarding the interpretation of MRI studies and the exercise of matching damaged lobes of the brain to distinct cognitive functions less persuasive than that of Dr. Mancuso, due, in part, to the limited duration of the examination. The undersigned finds Dr. Ater’s opinions concerning Jacob’s potential educational and vocational opportunities less persuasive. Respondent’s Experts Respondent retained Laufey Sigurdardottir, M.D., to review the available medical records, conduct a neurological examination, and opine as to whether Jacob met the criteria for a birth-related neurological injury and should be eligible for compensation under the Plan. Dr. Sigurdardottir is a board certified child neurologist and epileptologist. Dr. Sigurdardottir conducted an examination of Jacob on October 7, 2015, when Jacob was seven years, eight months old. A report was drafted on the date of the examination after a review of the medical records, full physical, and thorough neurological examination. She drafted an addendum to her report, dated September 8, 2017, following the review of additional MRI imaging studies and medical records. The results of her examination are fairly summarized in her report, and were admitted into evidence and addressed at the hearing. Dr. Siguardardottir’s ultimate opinion in this matter is that Jacob does not have a substantial mental impairment, but rather, a mild mental impairment. As noted in her evaluative report, Jacob’s “[o]verall developmental assessment does suggest some delays in language and comprehension as well as expressive language, but overall skills that are higher than his motor abilities.” She concluded that, “[t]he patient is found to have a permanent substantial physical impairment, but to have mild mental impairment with areas of strength in verbal realms.” Dr. Sigurdardottir testified regarding the motor impairments that Jacob has that would make standardized testing difficult: quadriplegic cerebral palsy; difficulties with fine motor skills; multiple vision abnormalities; abnormal eye movement where he has a difficult time keeping his gaze focused on what he is looking at; difficulty sweeping his eyes when attempts to read; and he is considered legally blind, even with corrective lenses. Indeed, Dr. Sigurdardottir testified that, “visual disturbance, hearing impairment and motor disability is one [sic] of the hardest things to overcome in testing true intelligence.” Dr. Sigurdardottir reviewed several prior assessments in formulating her opinions and testified regarding the same. Her review of the Battelle Inventory administered to Jacob at age eight months showed his lowest areas were in motor development (79), but all other scores (adaptive skills, personal and social development, communication and cognitive function) were within normal limits (84+). She also reviewed prior neuropsychological testing from the Volusia County School District. With respect to a neuropsychological assessment performed in 2011, she noted Jacob obtained the following scores: developmental quotient (78); personal/social (83); communication (94); and motor skills (68). Dr. Sigurdardottir explained that 78 is “borderline,” 83 is on “the cusp of completely normal,” and 94 is “completely normal.” With respect to a psychoeducation assessment completed in 2017, she noted Jacob was only given the verbal part of the Wechsler Intelligence Scale Children, Firth Edition (WISC-V), wherein he obtained a score of 76. She explained that an 85+ is within normal limits; 71-85 is borderline; and 70 and below would be considered impaired. Dr. Sigurdardottir also discussed the 2013 evaluation conducted by Dr. Kanter. She noted that, pursuant to his evaluation, Jacob’s full scale IQ was a 63; however, the verbal component of the assessment was an 83. Dr. Sigurdardottir opines that, when there is a large discrepancy in areas of strength and other areas that are very difficult to test (due to motor and visual deficiencies), the lower scores do not reflect Jacob’s true abilities. Similarly, she opined that the testing performed by Dr. Addeo is unreliable because the performance IQ portion, particularly those components that rated Jacob’s visual and motor dexterity, would underestimate his true abilities. Dr. Sigurdardottir opined that intellectual disability is not merely comprised of IQ, but rather, one must look at the individual’s adaptive skills. Accordingly, if one merely looked to Jacob’s verbal and adaptive skills upon testing, he would fall into the “borderline category,” and not that of an intellectual disability. In essence, Dr. Sigurdardottir opined that to the extent any cognitive testing requires vision or fine motor skill components, the same would be unreliable as it would underestimate Jacob’s true abilities. As a corollary, she opined that purely verbal testing and assessment is the most accurate method to determine his true mental abilities. The undersigned finds that Dr. Sigurdardottir possesses significant education, training, and expertise and is well-qualified and credentialed to render the above-noted opinions. The undersigned, however, finds her opinions with respect to limiting cognitive testing to purely verbal as less persuasive and overly restrictive. Respondent also retained Ronald Willis, M.D., a board certified obstetrician and gynecologist specializing in maternal-fetal medicine, to review Jacob’s medical records and opine as to whether Jacob sustained an injury to his brain in the course of labor, delivery, or in the immediate post- delivery period due to oxygen deprivation or mechanical injury. Dr. Willis conducted his review and authored a report on September 15, 2015, and a subsequent report on January 14, 2016, both of which contain his findings and opinions. Dr. Willis was also deposed on July 25, 2017, and his deposition was admitted into evidence without objection. Dr. Willis testified that, in his opinion, Jacob sustained an injury to his brain due to oxygen deprivation during the immediate post-delivery period. He offered no opinions on the degree or permanency of the brain injury. Dr. Willis’s opinions are credited. Respondent also retained Tushar Chandra, M.D., a board-certified radiologist, to review and opine on the previously obtained MRI images (2009 and 2012) of Jacob’s brain. Of relevance to the primary issue in this proceeding, Dr. Chandra could not provide an opinion or predict whether or not Jacob has a permanent and substantial mental or physical impairment based on the imaging alone. As Dr. Chandra explained in his deposition of February 8, 2018: Because – because what I’m looking at is anatomy, and there’s no clear correlation of anatomy with function. So to comment on that, you need a good clinical neurological examination to look at his cranial nerves, motor tests, sensory tests. For all that, you need a clinical examination. *** What my specialty is, is to say whether or not this is a normal scan. If not normal, then based on my experience, what has been the kind of injury and when, and then I usually try to say to make my recommendations. . . . But in no capacity does my expertise allow me to comment on how this kid will do clinically, because there’s no way I can know that. The undersigned finds that the above-noted opinions of Dr. Chandra are credible and persuasive. Petitioners’ Experts On March 14, 2011, prior to the filing of the instant Petition, Petitioners’ counsel referred Jacob to Robert F. Cullen, Jr., M.D., a neurologist at Miami Children’s Hospital, for a neurological evaluation. Jacob was three years, two months old at the time of the evaluation. A report was generated following the evaluation, which was admitted without objection. In the summary section of his report, Dr. Cullen noted, inter alia, that: 1) Jacob had some speech articulation difficulties and would need ongoing speech therapy; 2) was at risk for seizures over and above the general population; 3) had cognitive delays and was behind in terms of naming pictures and colors; 4) would require special educational help in school; and 5) that his employability will certainly be limited. On June 12, 2013, prior to the filing of the instant Petition, Petitioner’s counsel referred Jacob for a neuropsychological evaluation by Geoffrey Kanter, Ph.D. Jacob was five years, four months old at the time of evaluation. A report was generated following the evaluation, which was admitted without objection. Dr. Kanter did not offer testimony in this matter. Dr. Kanter documented that, at the time of the evaluation, Jacob was unable to dress himself, walk without assistance, tie his shoelaces, correctly say the alphabet, read, button his clothing, and name coins. Dr. Kanter also documented that, upon examination, Jacob’s visual acuity problems “were quite evident.” Specifically, he documented as follows: Jacob’s eyes would frequently roll upwards involuntarily. On all visual tasks, he required assistance and prompting to focus on the visual stimuli in front of him. He would focus on a particular area directed by the examiner, his eyes would roll upwards, and then he would need redirection again to focus back on the particular location on the stimulus he was previously looking at. With this type of assistance, he was able to focus on and view particular areas of visual stimuli in order to comprehend the task and make a response. However, his performance was likely clearly impacted. Dr. Kanter further observed that Jacob’s fine motor skills “were also obviously impacted,” and that his fine motor dysfunction “clearly impacted the test results on tasks with high fine motor demand.” Finally, he noted that “[o]ther fine-motor tasks were beyond his capabilities and not administered.” Jacob’s general intellectual functioning was documented by Dr. Kanter as follows: On the WPPSI-III [Wechsler Pre-School and Primary Scale of Intelligence-III], Jacob obtained a Full Scale I.Q. score of 63 which falls within the Extremely Low range (1st percentile) at a Moderate level of impairment. Sub-indices were variable with a significant strength in terms of verbal reasoning ability (Verbal I.Q. =83, 13th percentile, Low Average, Mildly impaired) versus a significant weakness in visual-spatial and visual-motor ability (performance IQ=53, .1 Percentile, Extremely Low, Severely impaired). The “Impressions and Conclusions” section of Dr. Kanter’s report is set forth, in full, below: The pattern and severity of cognitive test scores across this evaluation are consistent with the electroencephalographic and neuroradiological test findings of grossly impaired neurological functioning on a diffuse and localized basis. The EEG pointed more toward a right hemisphere locus of the seizure disorder which is consistent with relatively more spared (but still impaired) left hemispheric, verbal/language areas. The neurological dysfunction would certainly be expected to impact his cognitive capacities in the areas of processing speed, memory, and speech/language functioning to some degree. Visual skills are affected not only due to visual acuity issues (i.e., having to hold small images close to his face) but also likely visual processing problems. To some degree, it is difficult to parcel out which factor may be primary although from a functional standpoint, it does not matter. Impaired visual acuity would certainly be expected to cause visual- spatial and visualmotor processing speed problems. The parent questionnaire results from the Vineland-II and BASC-2 are consistent with the cognitive test findings in terms of how his cognitive, visual, and motor problems significantly impact his ability to engage in functional communication and functional activities. Overall, consistent with MRI and EEG results, it is evident that multiple areas of Jacob's brain were damaged, with both hemispheres affected, as well as cortical and subcortical components with global and specific cognitive and behavioral consequences. It is also important to note that at Jacob's age, certain neuro-cognitive functions have not yet developed (such as higher level executive functioning related to frontal lobe development) and as such, more specific impairments are likely to emerge as he reaches adolescence and beyond when cognitive, educational, and life tasks will present increased complexity and demand for more independent problem-solving. The severity of the cognitive and functional impairments clearly impacts his ability to function normally within an educational setting, family setting, and social setting. The impact of the pattern and severity of cognitive deficits will result in the need for special education services throughout Jacob's educational career and will greatly impact his capacity for vocational employment. Dr. Kanter’s prognosis and recommendations for Jacob, as documented in his report, are set out in pertinent part, as follows: Jacob will continue to need significant assistance throughout his educational career, into adulthood, and throughout his life. While he may develop some adaptive compensatory strategies, the severity of his areas of deficit in language, memory, and visual-motor areas in particular will not likely change in a significant functional manner. He will require special education assistance throughout school. The likelihood of Jacob successfully completing a 4-year regular college or even a 2-year college is extremely minimal. The probability for Jacob to obtain and maintain competitive employment on a full-time basis is minimal. Given the pattern and severity of deficits in the visual, cognitive, and academic realms, his employment choices will be extremely limited. It is likely that he will qualify for and require Social Security Disability. He would likely require a limited type of job placement which does not require a high degree of concentration and attention, memory, verbal expressive abilities, fine- motor skills, physical mobility, visual acumen, or writing capacity, and only under circumstances with very significant assistance and accommodations. It is unknown what type of employment setting would be able to meet such requirements. He may be able to obtain a volunteer position on a part time basis as a productive activity but we still need a great deal of direct supervision. After reaching his majority, Jacob will continue to need significant assistance with regard to most aspects of his life which includes: financial management and decision-making paying rent and utility bills decisions concerning costs, benefits, advantages, and disadvantages of residential location decisions concerning social and intimate relationships emotional coping with his disability Non-medical professionals who will need to become involved in his life include an accountant, a lawyer, and financial manager, and case manager. As he gets older, there may be a potential increase in emotional and behavioral problems which may require more assistance in understanding and dealing with his emotions and behavior. Psychotherapy on a weekly basis should be initiated immediately to provide assistance to Jacob and Mr. and. Mrs. Frybarger, and his school to help him develop adaptive coping strategies to deal with understanding his impairments and disability. Psychotherapy on an as needed basis will be required from now through adulthood. Issues with physical disability (quadriplegia, visual dysfunction) as well as cognitive dysfunction will certainly eliminate Jacob's ability to drive. He will need an aide to help transport him as he gets older. He will need assistance for other functional activities such as shopping. Given the combination of cognitive as well physical disability, he will likely require assistance for cooking and cleaning once he reaches his majority. Overall, taking into account all the areas of impairment, it is likely that he will require approximately 24 hour seven day per week professional aide assistance if his parents are unable to care for him and provide for all of his needs. So long as he is with his parents, he will still need assistance for the time be is outside of the house whether within a very structured school setting, sheltered vocational setting, or within any other environment. Finally, as noted, Jacob will continue to require professional speech therapy, physical therapy, occupational therapy services, and counseling beyond that which the school provides. Petitioner offered the testimony of one of Jacob’s treating physicians, Ronald Davis, M.D. Dr. Davis is board certified in general pediatrics, adult and pediatric neurology, and has a special qualification in epilepsy. Jacob was presented to Dr. Davis in 2012 for a second opinion. Following the initial evaluation, Dr. Davis confirmed the diagnosis of spastic quadriplegic cerebral palsy and partial epilepsy. Dr. Davis most recently treated Jacob on November 25, 2019. Dr. Davis testified that this treatment of Jacob focused on “seizure- related issues, developmental aspects, and in particular for that is the spastic cerebral palsy, so treatment approaches to try to improve range of motion, functionality of motor skills ” Based upon his care and treatment, Dr. Davis opined that Jacob does not have a substantial mental impairment. He reported that Jacob was doing well cognitively, noting that he was making passing grades in his ESE classes and was conversational in speech. Dr. Davis explained that Jacob is not a “total care” patient--that is a patient who requires total care and who is not interactive. Dr. Davis explained that a total care patient would have a substantial mental impairment. Dr. Davis testified that he anticipates Jacob to progress in the future, both mentally and physically, if he continues treatment. The undersigned finds that Dr. Davis possesses significant education, training, and expertise and is well-qualified and credentialed to render the above-noted testimony as one of Jacob’s treating physicians. The undersigned finds his ultimate opinion with respect to whether Jacob has a substantial mental impairment to be less persuasive; however, as his methodology for arriving at the opinion is overly restrictive. Family testimony: Jacob testified on his behalf and was able to provide limited, but primarily appropriate, responses to questions concerning his family (members, pets, parents’ employment), his favorite educational topics and teachers, his current grades, his ability to use technology, and hobbies. Jacob, who was almost 12 years old at the time of the hearing, attended the entire hearing at counsel’s table. Jacob was observed to have a very pleasant and friendly demeanor. Throughout the hearing, Jacob was observed to be calm, compliant, cordial and respectful of the proceeding. The undersigned was able to hear and comprehend Jacob’s speech. He was observed providing limited, but appropriate, greetings and responses; communicating on occasion with his legal counsel; and expressing his basic needs and wants. Petitioner’s mother, Shannon Frybarger, testified that Jacob is not impulsive, but rather, mature, independent, and responsible. In comparing Jacob to her elder son, she opined that Jacob is the more mature of the two. Mrs. Frybarger testified that he is able to stay home alone, for a period of time, and independently recalls when he is required to take medication. She opined that Jacob has consistently and successfully progressed in school and is confident the he will ultimately matriculate to college, and then to a career. Educational history As noted above, Jacob has been identified, evaluated, and determined to be a student with a disability under the IDEA. The evidentiary record indicates that he was evaluated by Child Find services through the Volusia County School District on January 10, 2011, when he was just under three years old. There, he was served through the Early Steps program for occupational therapy (OT), physical therapy (PT), and communication therapies. At that time, his primary exceptionality was noted, in his IEP, to be orthopedically impaired, with secondary exceptionalities including OT, PT, and other health impaired (OHI). When Jacob entered kindergarten, he participated in the general education curriculum with accommodations and intensive support in language arts, math, communication, social skills, and independent function. He was placed in a “separate class” educational setting, wherein he was with non-exceptional students less than 40 percent of the school day. He received specialized instruction, daily, in language arts, math, social studies, social skills, communication, and independent functioning. He also received supplemental aids and services such as text, picture and/or object support for communication and learning; digital text; and adapted computer access. The following year, he began receiving, in addition to prior services, special instruction for 30 minutes per week in a visually impaired setting. At that time, it was determined that he would be able to participate in state and district-wide assessment programs with a number of test accommodations. On November 30, 2016, through January 11, 2017, Jacob was referred to Cynthia M. Fraser, Ph.D., a school psychologist with the School District of Volusia County. The documented referral was to obtain measures of his intellectual ability, academic achievement, and adaptive behavior. At the time, Jacob was in third grade. Dr. Fraser documented that Jacob was “receiving ESE services under the exceptionalities of Orthopedically Impaired, Occupational Therapy, Physical Therapy, Visually Impaired, and Other Health Impaired. Jacob is diagnosed with Cerebral Palsy, Seizure Disorder, Optic Atrophy in both eyes, Myopia, Nystagmus, disorder of eye movement, and Astigmatism.” She also documented that he “uses either a wheelchair or walker and requires adult assistance to navigate around campus. He also receives ESE services from the vision teacher.” Dr. Fraser’s summary and recommendation are set out in full, as follows: Jacob is an 8 year, 11-month old boy in the third grade that was referred for reevaluation by the ESE Reevaluation Committee to provide an updated measure of updated measures of his intellectual ability, academic achievement, and adaptive behavior. Due to Jacob's significant physical limitations and vision deficits only the Verbal Comprehension subtests of the WISC-V were administered. His score of 76 fell within the low range. Jacob received the following scores on the WJ-IV: Reading (<40), Math (51), and Written Language (<40). The achievement test was administered with accommodations and modifications for his physical and visual deficits including enlarging items and assistance from the vision teacher. Results from the ABAS-III (Teacher GAC = 72, Parent GAC = 70) fell below average. A strength was noted on the Social Domain while the Conceptual and Practical Domains were areas of weakness. An IEP meeting was conducted for Jacob on March 9, 2017, when Jacob was in the third grade. The IEP team was comprised of Petitioner’s mother and the following school based members: an ESE teacher; a vision teacher; a primary teacher; a school psychologist; a speech therapist; a social worker; a behavior specialist; the local educational authority representative; and an evaluation interpreter. At that time, the IEP team, in discharging its duty, was required to determine Jacob’s participation in the statewide standardized assessment program. In making that determination, the IEP team, including Petitioner’s mother, proceeded through the following analysis, as documented on the IEP: In determining the appropriate assessment for a student, the IEP team should consider the student’s present level of educational performance in reference to the Florida Standards and the Next Generation Sunshine State Standards. The IEP team should also be knowledgeable of guidelines and the use of appropriate testing accommodations. To facilitate informed and equitable decision making, the IEP team should answer each of the following questions when determining the appropriate course of instruction and assessment. Does the student have a significant cognitive disability? Even with appropriate and allowable instructional accommodations, assistive technology, or accessible instructional materials, does the student require modifications, as defined in Rule 6A-6.03411(1)(z), F.A.C., to the grade-level general state content standards pursuant to Rule 6A- 1.09041, F.A.C.? Does the student require direct instruction in academic areas of English Language Arts (ELA), mathematics, social studies, and science based on Access Points in order to acquire, generalize, and transfer skills across settings? If the IEP team answers “no” to any of these three questions, the student should be instructed in general education courses and participate in the general statewide standardized assessment with accommodations, as appropriate. If the IEP teams answers “yes” to all three questions, the student should be enrolled in access courses and participate in the Florida Standards Alternate Assessment-Performance Task. The IEP team conducted the above-cited analysis, concluded that Jacob has a significant cognitive disability, and answered the remaining questions in the affirmative. Ultimately, the IEP team concluded that Jacob will participate in the Florida Standards Alternate Assessment-Performance Task. Jacob’s most recent IEP in evidence, dated April 23, 2019, documents that Jacob continues to participate in access courses and participates in the Florida Standards Alternate Assessment-Performance Task. The undersigned, based upon review of the record evidence, is unaware of any evidence that Petitioners declined to provide parental consent for Jacob’s participation in either the access points curriculum or the Florida Standards Alternate Assessment-Performance Task. Notice On August 7, 2007, Mrs. Frybarger, signed a document entitled “Notice to Obstetric Patient (See Section 766.316, Florida Statutes).” This document provides as follows: I have been furnished information by Fetal Diagnostic Center of Orlando, Inc. prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), and have been advised that Ahmed Al-Malt, M.D. and Franklyn Christensen, M.D. are participating physicians in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth-Related Neurological Injury Compensation Association, P.O. Box 14567, Tallahassee, Florida, 32317-4567, (800)398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. On December 16, 2007, Petitioner, Shannon Frybarger, signed a document entitled “Notice to Obstetric Patient Pursuant to Florida Statute 766.315.” Said document provided as follows: I have been furnished with information by Florida Hospital that was prepared by the Florida Birth Related Neurological Injury Compensation Association (NICA). Under the Association’s NICA program, certain limited compensation is available in the event that certain neurological injury may occur to my infant during labor, delivery or resuscitation. I have also been informed that Florida Hospital, its related or affiliated organizations, and their employed physicians are participants in the NICA program. I acknowledge and understand that my personal physician, or an on-call physician who I have been assigned to, may or may not participate in the NICA program. I understand that I may seek clarification from my physician as to his/her participation in the NICA program. I understand it is my responsibility to discuss this with my physician. For specifics on the program, I understand that I can contact the Florida Birth Related Neurological Compensation Association (NICA), 1435 East Piedmont Drive, Suite 101, Tallahassee, Florida 32312, (904) 488-8191, which is also listed in the NICA brochure. I further acknowledge that I have received a copy of the NICA brochure called “Peace of Mind for an Unexpected Problem” from Florida Hospital prepared by NICA. The undersigned finds that Intervenor, Adventist Health, provided notice to Mrs. Frybarger, of its participation in the Plan. The undersigned finds that Dr. Christensen provided notice to Mrs. Frybarger of his participation in the Plan. Petitioner presented no contrary evidence at the final hearing, and does not address the notice issue in Petitioner’s Proposed Final Order.
The Issue At issue is whether Samer Abifaraj, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the notice requirements of the Plan were satisfied. If so, whether the Division of Administrative Hearings has the exclusive jurisdiction to resolve or, alternatively, must preliminarily resolve, whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan benefits and pursue a civil suit.
Findings Of Fact Fundamental findings Petitioners, Bassam Abifaraj and Rayya Abifaraj, are the parents and natural guardians of Samer Abifaraj (Samer), a deceased minor, and co-personal representatives of their deceased son's estate. Samer was born October 30, 1997, at Plantation General Hospital, a hospital located in Broward County, Florida, and died December 4, 1997. At birth, Samer's weight exceeded 2,500 grams. The physician providing obstetrical services at Samer's birth was John L. Rinella, M.D., who was at all times material hereto a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, 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 . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded, and the parties agree, that Samer suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA proposes to accept the claim as compensable under the Plan. NICA's conclusion is consistent with the proof, and its proposal to accept the claim as compensable is approved. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the hospital and participating physician failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the health care providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000). Regarding the notice issue, it is resolved that on June 3, 1997, Mrs. Abifaraj was provided timely notice that Dr. Rinella was a participating physician in the Plan, together with notice as to the limited no-fault alternative for birth- related neurological injuries provided by the Plan. Such conclusion is based on the more credible proof which demonstrates that on such date, when Mrs. Abifaraj presented to Dr. Rinella's office, Belinda Jill Pettitt, a medical assistant at the time, gave Mrs. Abifaraj a brief explanation of the Plan, as well as a form titled INFORMED CONSENT OF MY PHYSICIAN'S PARTICIPATION IN THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN (NICA). The form further provided: I hereby acknowledge that: I have been advised that Dr. John Rinella (OB), MD is a participant in the NICA Plan; I have been furnished with a copy of the NICA brochure which describes the NICA Plan and my rights and limitations under the NICA Plan; I understand that the no-fault aspects of the NICA Plan will serve as an exclusive remedy for injury which qualifies under the NICA Plan and that as a result I am forfeiting any and all rights to bring legal action in a Court of Law for damages in connection with such injuries; Any questions I may have had regarding my physician's participation in the NICA Plan and my rights and limitations under the NICA Plan have been answered to my satisfaction; I hereby consent to obstetrical services having been given notice pursuant to Florida Statutes 766.316 by my physician of the applicability of NICA upon such obstetrical services. Contemporaneously, Ms. Pettitt gave Mrs. Abifaraj a copy of the brochure (prepared by NICA) titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Ms. Abifaraj acknowledged her understanding of the form, as well as receipt of the NICA brochure, by dating and signing the form.3 While Mrs. Abifaraj received notice on behalf of the participating physician, the proof failed to demonstrate that Plantation General Hospital provided any pre-delivery notice, as envisioned by Section 766.316, Florida Statutes. Moreover, there was no proof offered to support a conclusion that the hospital's failure to accord Mrs. Abifaraj pre-delivery notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. Rather, the health care providers contend that the hospital's failure to give notice is inconsequential when, as here, the patient's obstetrician has accorded notice of his participation in the Plan. Whether, as contended by the health care providers, the hospital's failure to accord Mrs. Abifaraj notice should be overlooked, as harmless, is addressed in the Conclusions of Law.
