The Issue At issue is whether David Britt, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Fundamental findings Petitioners, Sandra Britt nee Sandra Nap and Frank Britt, are the parents and natural guardians of David Britt, a minor. David was born a live infant on November 9, 1997, at Tampa General Hospital, a hospital located in Tampa, Florida, and his birth weight exceeded 2,500 grams. The physicians providing obstetrical services during David's birth included the attending physician, Catherine Lynch, M.D., an attending faculty physician with the University of South Florida, College of Medicine, as well as a number of resident physicians from the University of South Florida, College of Medicine. At the time, Dr. Lynch was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes, and the resident physicians, supervised by Dr. Lynch, were deemed participating physicians under the provisions of Section 766.314(4)(a), Florida Statutes.2 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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 that David suffered a "birth- related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, proposes to accept the claim as compensable under the Plan. NICA's conclusion is grossly consistent with the proof and, consequently, 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 healthcare providers' claim of Plan immunity by contending that the hospital and the attending physician3 failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the healthcare providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, supra. As a prelude to resolving the notice issue, it is noted that Mrs. Britt received her prenatal and intrapartum care at the Genesis Clinic (an obstetric and gynecologic health care facility) and Tampa General Hospital (TGH), facilities owned and operated by the Hillsborough County Hospital Authority. Pertinent to this case, the proof demonstrates that TGH manages the clinic, and provides the necessary nursing and clerical workers; however, prenatal care and intrapartum care are provided, pursuant to an "affiliation agreement," by physicians (faculty and resident) associated with the University of South Florida, College of Medicine, Department of Obstetrics and Gynecology, who are employed by the Florida Board of Regents. Regarding her prenatal care, the proof demonstrates that Mrs. Britt's initial visit to the Genesis Clinic occurred on March 26, 1997.4 Typically, such a visit would include registration, financial consultation, a tour and orientation, and prenatal lab work. Here, as would be expected, Mrs. Britt initially presented to the front desk where she registered (signed in) and provided certain basic information about herself to complete a patient profile. Following completion of the patient profile, Mrs. Britt presented to the financial counselor, whose office was adjacent to the front desk and faced the patient waiting area. During the course of that meeting, the proof demonstrates that the financial counselor (Norma Kringel, currently known as Norma Kringel Tooley) reviewed Mrs. Britt's patient profile and, apparently satisfied that Mrs. Britt was Medicaid eligible, provided her with a packet (a plastic bag) containing various samples and child care information, as well as a Genesis Social Assessment form to complete. Following completion of that form, the financial consultant provided Mrs. Britt with a 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. Notably, the brochure included the following language: You are eligible for this protection if your doctor is a participating physician in the Association. Membership means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. Notwithstanding, while the consultant encouraged Mrs. Britt to read the brochure, she did not identify the physicians who would be providing Mrs. Britt's obstetrical care or advise her (as she easily could have) that the physicians who would be providing such care were participants in the Plan.5 The next step in the process presents the most problematic issues with regard to notice. According to the proof, at the conclusion of her meeting with the financial consultant, a new patient, such as Mrs. Britt, was directed to the patient waiting area, where she was to await the health education coordinator (Patricia Ogden, R.N.) for an orientation tour of the facility and classroom presentation. According to Nurse Ogden, it was her established procedure to collect the new patients in the waiting area, and then proceed with a tour of the facility, explaining the various services that were available, followed by a classroom session. During the course of the tour, it was Nurse Ogden's practice to explain to the patients that TGH provides prenatal care at the clinic in "affiliation" with the University of South Florida, College of Medicine, and that the physicians who would be providing obstetrical care were residents (M.D.s) now specializing in obstetrics and gynecology and that their services were under the direct supervision of an attending faculty physician. During the classroom session, it was Nurse Ogden's practice to, inter alia, hold up the "Peace of Mind" brochure to ensure that each new patient had one, explain that the affiliated group of physicians from the University of South Florida who would be providing their obstetric care were participants in the Plan, and advise the patients that if they had any questions regarding the Plan they should consult with their physicians. Following the classroom session, the new patients would then proceed to the final stage of their initial visit, prenatal lab work. From the routine practice established by the clinic for an initial visit by new patients, Intervenors suggest it is reasonable to infer that Mrs. Britt participated in the tour and classroom session, and was therefore informed as to the identity of her physicians (as a group) and that they were participants in the Plan. As additional proof that Mrs. Britt participated in the tour and classroom session, Intervenors point to the Progress Notes of Mrs. Britt's initial visit of March 26, 1997, which contains a check mark next to an item titled "Orientation tour and class session attended by patient," signed by Nurse Ogden. Notably, however, Nurse Ogden took no roll call or otherwise identified the patients who accompanied her on the tour or participated in the classroom session, and executed the Progress Notes confirming a patient's attendance on the tour and at the classroom session based solely on a list of new patients who had registered (signed in) at the reception desk that day. Consequently, the Progress Notes provide no independent or compelling proof, distinguishable from that which might be inferred from the clinic's routine practice, that Mrs. Britt attended the orientation tour and class session on March 26, 1997. Contrasted with the conclusion Intervenors would suggest be drawn from the Clinic's routine procedure for new patients, Mrs. Britt testified that she did not participate in an orientation tour and class session, and was never informed that the physicians who would provide her obstetrical care were participants in the Plan.6 As independent evidence that she did not follow the routine established for new patients, Petitioners point to the clinic's records, which reveal that she did not, as would be routine, present for prenatal lab work on March 26, 1997, but returned to the clinic on March 27, 1997, for that lab work. Given the proof, it cannot be resolved with any degree of confidence that, more likely than not, Mrs. Britt attended the orientation tour and classroom session. Consequently, since the tour and classroom session was the only occasion (apparent from the record) that patients were advised that their physicians were participants in the Plan, it must be resolved that the proof fails to support the conclusion that Mrs. Britt was ever provided notice that her physicians were participants in the Plan. While the proof failed to demonstrate that Mrs. Britt received notice on behalf of the participating physicians, it did demonstrate that TGH provided timely pre-delivery notice to Mrs. Britt, as envisioned by Section 766.316, Florida Statutes. In this regard, the proof demonstrated that on October 19, 1997, during the course of pre-registration at TGH, Mrs. Britt was again given a copy of the brochure (prepared by NICA) titled "Peace of Mind for an Unexpected Problem," which, as previously noted, contained a concise explanation of the patients' rights and limitations under the Plan.
Findings Of Fact Based upon the Stipulation of the parties, the following facts are found: Joel Davis Laton and Christine Anne Laton are the parents and legal guardians of Rose, and are the “Claimants” as that term is defined in section 766.302(3). On or about August 17, 2019, Rose incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), which was the sole and proximate cause of Rose’s medical condition. David Miller, M.D., rendered obstetrical services in the delivery of Rose and, at all material times, was a “participating physician” as defined in section 766.302(7). SVMCR is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Rose was born. At birth, Rose weighed 4,650 grams. Rose died on August 17, 2019. Petitioners filed a Petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
The Issue At issue is whether Alexandria LeCrenier, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Fundamental findings Petitioner, Renee LeCrenier, is the maternal grandmother and legal guardian of Alexandria LeCrenier (Alexandria), a minor. Alexandria was born to Mrs. LeCrenier's daughter, Andrea LeCrenier (Andrea), on February 25, 1996, at Memorial Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. At the time of delivery, Andrea (date of birth February 22, 1979) was a student, and 17 years of age. The physician providing obstetrical services during the birth of Alexandria was Michelle McLanahan, M.D., a physician associated with Women's Medical Group, P.A. (WMG), who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan for infants who have suffered 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." Section 766.302(2), Florida Statutes. Here, the parties have stipulated that, as a result of a brain injury, Alexandria is permanently and substantially mentally and physically impaired. What remains to resolve is the timing and etiology of that injury or, stated differently, whether the injury Alexandria suffered was "caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as required for coverage under the Plan. Andrea LeCrenier's antepartum course and Alexandria's birth Andrea's prenatal course was apparently uncomplicated until January 4, 1996, when (at 33 weeks, 1 day gestation) she was diagnosed with mild pregnancy induced hypertension and fetal tachycardia. Referral to labor and delivery at Memorial Medical Center for evaluation proved reassuring for fetal wellbeing, as did a subsequent routine of antepartum testing. That testing included a weekly biophysical profile, once a week until 40 weeks gestation (performed February 1, February 8, February 15, and February 22, 1996).1 Following antepartum testing, Andrea also paid a routine office visit to WMG. While no contractions were noted at the time, pelvic examination revealed her cervix to be dilated 3 centimeters, effacement at 70 percent, and the fetus at station -3. Andrea was then scheduled for a follow-up biophysical profile on February 26, 1996, and evaluation for induction of labor. At approximately 3:09 a.m., February 25, 1996, Andrea (with an estimated date of confinement of February 21, 1996) presented to Memorial Medical Center in early labor. At the time, Andrea complained of passage of mucus plug and vaginal spotting, and cramping (contractions) all day, with decreased fetal movement. Vaginal examination revealed the membranes intact, and the cervix at 3 centimeters dilation, effacement at 100 percent, and the fetus at station -1. External fetal monitoring was applied at 3:18 a.m., and was immediately observed to be non-reassuring, with no accelerations, late subtle decelerations, and diminished long- term and short-term variability. By 4:05 a.m., the late decelerations had worsened, and at 4:21 a.m., a scalp pH was attempted; however, upon rupture of the membrane "thick green meconium stained fluid with particulates" was encountered and a scalp pH could not be obtained. Due to the non-reassuring fetal heart tones, Dr. McLanahan called for a stat cesarean section. Andrea was transported by stretcher to the operating room at 4:39 a.m., anesthesia was started at 4:45 a.m., the first incision made at 4:51 a.m., and Alexandria was delivered at 4:58 a.m. The mother's discharge summary reveals the following observations during delivery: . . . The infant was delivered from a vertex presentation with DeLee suctioning done at delivery of the head prior to the delivery of the body due to the thick meconium fluid. There was a tight nuchal cord times two that was noted. The cord had to be clamped and cut prior to delivery of the infant's body and prior to delivery of the head at the time of cesarean section. The infant was passed off the operative field to the ARNP who continued to suction the infant [below the cords] due to the meconium . . . . Alexandria required resuscitation, and received positive pressure ventilation with ambu bag and mask in the delivery room. Apgars of 1, 6, and 6, were assigned at one, five, and ten minutes respectively. Such scores are considered low, at less than 7 at five minutes, and are predictive of possible long-term sequelae. The Apgar scores assigned to Alexandria are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and skin color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Alexandria's Apgar score totaled 1, with heart rate being graded at 1, and respiratory effort, muscle tone, reflex irritability and skin color being graded at 0. At five minutes, Alexandria's Apgar score totaled 6, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and skin color being graded at 1 each. At ten minutes, Alexandria's Apgar score showed no further improvement and at 5:10 a.m., she was transferred to the special care nursery (SCN) where she was immediately placed on a ventilator. Following admission to the SCN, Alexandria's initial arterial blood gases (at 5:20 a.m.) revealed a pH of 7.24, PC02 of 20, P02 of 166, and a -17.6 base excess, consistent with metabolic acidosis, and bicarbonate was administered. Alexandria also exhibited signs of hypovolemia, hydroglycemia, and seizure activity (at 5:50 a.m.). Due to Alexandria's critical status she was transferred (at 8:45 a.m.) to a level III newborn intensive care unit (NICU) at University Medical Center. Diagnoses on discharge from Memorial Medical Center were, as follows: TERMED AGA FEMALE. RESPIRATORY DISTRESS; PROBABLE PERSISTENT PULMONARY HYPERTENSION, RULE OUT MECONIUM ASPIRATION SYNDROME. METABOLIC ACIDOSIS. HYPOVOLEMIA. POSSIBLE SEIZURE DISORDER. The infant will need evaluation for hypoxic ischemic problems. While admitted to University Medical Center, Alexandria underwent numerous diagnostic tests. Those tests included a CT- head scan, at 6:05 p.m., February 26, 1996, which was reported, as follows: EXTENSIVE AND CONFLUENT AREAS OF CORTICAL AND SUBCORTICAL LOW ATTENUATION ARE COMPATIBLE WITH INFARCTION AND DEVELOPING ENCEPHALOMALACIA. LEFT HEMISPHERE INFARCTION IS MORE EXTENSIVE WITH COMPLETE INVOLVEMENT OF THE OCCIPITAL LOBE AND THE MAJORITY OF THE PARIETAL LOBE. RELATIVE SPARING OF POSTERIOR FOSSA STRUCTURES IS SEEN. MIDBRAIN AND THALAMIC NUCLEI ARE MOSTLY PRESERVED. NO ACUTE HEMORRHAGE IS SEEN. IMPRESSION: EXTENSIVE BILATERAL CORTICAL AND SUBCORTICAL INFARCTIONS, LEFT HEMISPHERE GREATER THAN RIGHT. The results of an electroencephalogram (EEG), also taken on February 26, 1996, were reported as follows: IMPRESSION: This EEG is somewhat poorly organized and suppressed for age. There are excessive right mid temporal sharp activity raising the possibility of an underlying structural or metabolic abnormality. No clear cut electrographic seizures are identified . . . . Neonatal head ultrasound, done on the fourth day of life (March 1, 1996), revealed normal ventricular size. It also noted what may have been a small subependymal hemorrhage on the right, but no interventricular hemorrhage. Alexandria was discharged to the care of her mother, Andrea LeCrenier, and grandmother, Renee LeCrenier, on March 5, 1996. Discharge diagnoses were as follows: Term live female infant, large for gestational age by length. Respiratory distress, probably secondary to meconium aspiration, resolved. Transient hypoglycemia, resolved. Transient hypotension, resolved. Multifocal cerebral infarct, bilateral. Encephalopathy and developmental delay secondary to cerebral infarct. The timing and etiology of Alexandria's brain injury To address the cause and timing of Alexandria's injury, the parties offered the medical records relating to Andrea's antepartum and intrapartum course, as well as for Alexandria's birth and subsequent development. The parties also offered the opinions of six physicians (Dr. Michael Duchowny, a physician board-certified in pediatric neurology; Dr. Charles Kalstone, a physician board-certified in obstetrics; Dr. Isaac Delke, a physician board-certified in obstetrics, as well as maternal/fetal medicine; Dr. Michelle McLanahan, a physician board-certified in obstetrics; Dr. Ramon Castillo, a physician board-certified in obstetrics, as well as maternal/fetal medicine; and, Dr. David Abdullah, a physician practicing neuroradiology). Having considered the proof, it must be resolved that, more likely than not, the brain injury Alexandria suffered, and which rendered her permanently and substantially mentally and physically impaired, was caused by oxygen deprivation occurring in the course of her mother's labor. More specifically, Alexandria's injury was most likely the result of hypoxia, suffered during a prolonged stage of early labor, associated with uterine contractions and a tight nuchal cord. In reaching such conclusion, it is initially observed that the reassuring results of prenatal testing, the evidence of severe fetal compromise on Andrea's presentation to Memorial Medical Center, and Dr. Abdullah's credible testimony regarding his reading of the CT scans (of February 26, 1996), reliably point to Alexandria's injury having occurred between February 22, 1996, and her mother's presentation to Memorial Medical Center on February 25, 1996. Also speaking to the likelihood that Alexandria's insult was occasioned by oxygen deprivation occurring in the course of labor is the evidence of cramping (contractions), with decreased fetal movement the day preceding Andrea's admission to Memorial Medical Center; the presence of thick, particulate green, meconium upon rupture of the membrane, consistent with acute (recent) stress to the fetus; and, the "tight nuchal cord times two" noted at delivery. Finally, Alexandria's presentation and development post-delivery was consistent with the severe consequences one would associate with an acute insult at or around the time of birth, such as low Apgar scores; the need for immediate, extensive resuscitative measures; hypertension; hypoglycemia; metabolic acidosis, and seizure activity within 24 hours of birth. Consequently, the proof compels the conclusion that, more likely than not, Alexandria's injury was caused by oxygen deprivation, suffered during a prolonged stage of early labor, and associated with uterine contractions and a tight nuchal cord. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioner has responded to the delivering physician's claim of Plan immunity by claiming that the physician failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged, appropriate notice was given. Regarding the notice issue, the proof demonstrates that on September 9, 1995, Andrea was provided timely notice that Women's Medical Group, P.A., was a participating practice in the Plan, together with notice as to the limited no-fault alternative for birth-related neurological injuries provided by the Plan. The notice was on Women's Medical Group, P.A., stationery, and identified on the letterhead all physicians then associated with the practice (Doctors Max C. Karrer, William R. Wooden, David P. Friedline, Angela S. Martin, Rebecca I. Moorhead, and Patricia A. Schroeder). Dr. McLanahan's name was not on the letterhead because she was not, at the time, associated with WMG. Dr. McLanahan joined WMG in or about November 1995 and, like all physicians associated with the practice, elected to become a "participating physician" in the Plan, and WMG paid the appropriate assessment on her behalf. Thereafter, Dr. McLanahan had occasion to see Andrea for two prenatal office visits and, because she was the WMG physician on call, attend to Alexandria's delivery. During that period, no additional notice was provided Andrea that WMG was a participating practice in the Plan or that separately advised Andrea that Dr. McLanahan, who had joined WMG since the initial notice, was a participating physician in the Plan.
The Issue At issue is whether Wesley Dunaway, III, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Daphne Waller is the natural mother of Wesley Dunaway, III, a minor. Wesley was born a live infant on February 11, 2003,2 at North Florida Regional Medical Center, a licensed hospital located in Gainesville, Alachua County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Wesley's birth was Anthony Agrios, 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." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, indisputably, Wesley is permanently and substantially mentally and physically impaired.3 What remains to resolve is whether the record supports the conclusion that, more likely than not, Wesley's neurologic impairment resulted from 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," as required for coverage under the Plan. The cause and timing of Wesley's neurologic impairment To address the cause and timing of Wesley's neurologic impairment, the parties offered medical records related to, inter alia, Ms. Waller's antepartum course; those associated with Wesley's birth and subsequent development; and the opinions of Dr. Michael Duchowny, a pediatric neurologist, and Dr. Donald Willis, an obstetrician, regarding the likely etiology of Wesley's impairment. (Exhibits 1-13). As for the etiology of Wesley's neurologic impairment, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Wesley on October 25, 2004, and review of the medical records, that, while of unknown etiology, Wesley's neurologic impairment was most likely prenatal (developmental) in origin, having occurred prior to the onset of labor, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. As for Dr. Willis, he, like Dr. Duchowny, was of the opinion that the medical records failed to support a conclusion that Wesley's brain damage was associated with the birth process. Finally, the medical records, including the observations of the physicians who have treated Wesley, while unrevealing as to etiology, also speak to the likelihood of a developmental disorder, as opposed to birth trauma, as the cause of Wesley's neurologic impairment.4 Given the record, it must be resolved that Wesley's impairments were, more likely than not, occasioned by a developmental abnormality, that preceded the onset of labor, and not by an injury to the brain occurring in the course of labor, delivery, or resuscitation. See, e.g., 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 obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); 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.")
