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.
The Issue Whether Brianna Renee Joyner, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and participating physician provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2005), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2005),1 or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Chontee Joyner and David Joyner are the natural parents of Brianna Renee Joyner, a minor. Brianna was born a live infant on February 16, 2006, at Lawnwood Regional Medical Center, a licensed hospital located in Fort Pierce, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Brianna's birth by William B. King, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."2 Here, Petitioners and Intervenor took no position on whether Brianna suffered a "birth-related neurological injury." In contrast, NICA was of the view that the record failed to support the conclusion that Brianna's impairments, admittedly substantial, were birth-related. Whether Brianna suffered a "birth-related neurological injury" To address whether Brianna suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-22), that included the medical records associated with Mrs. Joyner's antepartal course, as well as those associated with Brianna's birth and subsequent development. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Raymond Fernandez, M.D., a physician board-certified in pediatrics and neurology with special competence in child neurology, who offered opinions as to the likely etiology of Brianna's impairments. Dr. Fernandez examined Brianna on July 31, 2008, and obtained the following history from Mrs. Joyner: Labor was induced at 39 weeks gestation. Her cervix was 1 cm dilated. She was given Cytotec and Pitocin, and overall duration of labor was 31 hours. Epidural anesthesia was given at 24 hours of labor. Towards the end of the labor, contractions occurred one after the other and she pushed for 2 hours. Vacuum extraction was used, but she was stuck, and she was then extracted manually. Brianna was pale and she did not cry after birth. She was given to Mrs. Joyner for "1 second" and then taken to the nursery because of breathing problems. She was transferred to the NICU because of an apneic spell. Subsequent to discharge she was referred to several specialist[s]. She was found to have a small patent ductus arteriosus that was not felt to be significant. The neurosurgeons found no clinically significant spinal abnormalities. She required PE tubes and tonsillectomy and adenoidectomy because of recurrent ear infections and apneic spells. Hearing is normal. Genetics and neurology have not arrived at a specific diagnosis. She has been enrolled in a developmental therapy program through the Early Steps Program, and has improved slowly, but she remains delayed. Brianna sat straight without support at about 13 months of age. She ambulates by scooting in the sitting position, by pulling with her legs and balancing with her arms. She tries to pull up, but only if offered assistance and encouragement by holding her hands. She reaches for objects, manipulates toys but does not play with them meaningfully, although she likes noisy toys. She rarely puts food in her mouth (Cheerios sometimes). She babbles, but no words are spoken. She does not seem to understand spoken language, but does respond to visual cues. She lifts her arms when a shirt is about to be put on. She plays pat-a-cake, but not consistently. Eye contact is improving. She smiles and is loving with family members, and tends to be anxious in the presence of strangers. She bangs blocks together, but does not stack them. She does not engage in imaginative play. She likes to be read to, and helps turn pages. She watches her younger brother and follows him around the house, and laughs when he does funny things. Physical examination revealed the following: Recent weight was 27 pounds. Head circumference 47.25 cm (approximately 20th percentile). . . . Brianna was alert. She was anxious when approached, and comforted by her mother. She did not babble. No words were spoken. Eye contact was limited. She did not point. Mainly, she sat on her mother's lap and stared about the room and sometimes looked at me. There was no indication that she understood basic verbal requests. She did not point to body parts. She was not interested in toys, and pushed them away when offered. There were no specific dysmorphic features. She has 2 hyperpigmented macular-papular skin markings on her back. One is over the thoracic spine, and the other is to the right of midline. Pupils were equal and briskly reactive to light. Eye movement was full. She tracked visually, but eye contact was limited. Face was symmetric. She swallowed well. Low axial and proximal tone, but normal tone distally in extremities. No obvious weakness noted. She sat independently. She stood and took steps, but only with both hands held by her mother. There was no involuntary movement. Deep tendon reflexes 1+ throughout. Liver and spleen were not enlarged. Funduscopic examination was limited, only able to note normal red reflexes and unable to visualize optic nerves. She inconsistently turned toward sounds and when her name was called. Based on his evaluation of July 31, 2008, as well as his review of the medical records, Dr. Fernandez was of the opinion that Brianna was permanently and substantially mentally and physically impaired. However, with regard to etiology, Dr. Fernandez was of the opinion that Brianna's impairments were, more likely than not, caused by a genetic abnormality, as opposed to a brain injury caused by oxygen deprivation or mechanical injury. In so concluding, Dr. Fernandez observed that the record did not provide evidence of an acute brain injury due to hypoxia or mechanical trauma during labor and delivery. Rather, he noted: There was mild shoulder dystocia but no evidence of upper extremity weakness. There was some medical instability after delivery but no evidence for an acute encephalopathy. Following a single fluid bolus she was then medically stable and began feeding well by the end of day 1. Hypotonia was noted initially and it has persisted without evolution or evidence of spasticity or involuntary movement. The initial brain CT scan [of February 20, 2006] showed no hemorrhage and later brain MRI [of May 18, 2006] was normal. Finally, Dr. Fernandez pointed to the report of Charles Williams, M.D., a geneticist associated with Shands Children's Hospital at the University of Florida, Division of Pediatric Genetics, where Brianna had been seen because of her developmental delay and austic-like features. That report, following chromosome analyses, identified a chromosome deletion, a genetic abnormality, that in Dr. Fernandez's opinion likely explains Brianna's global delay and physical findings. Dr. Willis reviewed the medical records associated with Mrs. Joyner's antepartal course; those associated with Mrs. Joyner's labor and delivery, including the fetal heart rate monitor strips; and those associated with Brianna's newborn course. Based on that evaluation, Dr. Willis was of the opinion that Brianna did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis observed there was no significant fetal distress on the fetal heart monitor during labor; the baby's Apgar scores were normal (8 at one and five minutes); the baby did not require any significant resuscitation at birth (only suctioning and blow-by oxygen); and CT scan of the head on February 20, 2006, was negative, without evidence of hypoxic changes. When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Fernandez and Willis were not controverted or shown to lack credibility. Consequently, it must be resolved that the cause of Brianna's impairments was most likely a developmentally based genetic abnormality, as opposed to a "birth-related neurological injury." See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). The notice issue Apart from issues related to compensability, Petitioners have sought an opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the participating physician and the hospital. § 766.309(1)(d), Fla. Stat. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)["A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the health care providers complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearing, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2005), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes (2005), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). Resolution of the notice issue When, as here, the Petitioners dispute that the healthcare providers complied with the notice provisions of the Plan, "the burden rest[s] on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied." Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004). Here, the parties' Pre-Hearing Stipulation and Stipulated Record (Exhibits 1-22) provide no such evidence. Consequently, it must be resolved that Lawnwood Regional Medical Center and William B. King, M.D., failed to establish they complied with the notice provisions of the Plan, or that any such failure was excused because the patient presented in an "emergency medical condition" or the giving of notice was otherwise "not practicable."3
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 The issue to determine in this matter is whether the minor child should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Association Plan.
Findings Of Fact On October 16, 2018, Petitioner Brandi L. Jennings was admitted to St. Joseph's to deliver her child (Killian). As part of her admission that day, Ms. Jennings signed a Receipt of NICA Information ("Receipt") presented to her by St. Joseph's pursuant to section 766.316. The Receipt notified Ms. Jennings that St. Joseph's was furnishing her information prepared by NICA, and stated that "certain limited compensation is available in the event certain types of qualifying neurological injuries may occur during labor, delivery or resuscitation." By providing Ms. Jennings this Receipt, St. Joseph's complied with the terms of the NICA notice requirement set forth in section 766.316. On October 18, 2018, Ms. Jennings gave birth to Killian at St. Joseph's. Killian was born a live infant weighing at least 2,500 grams. However, during the course of labor, delivery, or resuscitation in the immediate postdelivery period, Killian sustained an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury, which rendered him permanently and substantially mentally and physically impaired. (Killian was ultimately diagnosed with hypoxic-ischemic encephalopathy.) As such, Killian's injury qualifies as a "birth-related neurological injury" as defined in section 766.302(2). Killian was delivered by obstetrician, Kathryn Leenhouts, M.D. Dr. Leenhouts was the only physician who directly provided obstetrical services to Ms. Jennings in the course of her labor and delivery or in the immediate postdelivery period at St. Joseph's. At the time of Killian's birth, Dr. Leenhouts was not employed by St. Joseph's. Instead, Dr. Leenhouts worked for Exodus Women's Center, where she, along with other members of that group, had previously applied for and were granted staff privileges at St. Joseph's. During the year of Killian's birth (2018), Dr. Leenhouts did not pay the assessment set forth in section 766.314, which is required for participation in the NICA Plan. Neither was any evidence offered to establish that Dr. Leenhouts was exempt from payment of the assessment for 2018. Consequently, Dr. Leenhouts was not a "participating physician" in the Plan as that term is defined by section 766.302(7). St. Joseph's, on the other hand, was current with its assessment payments under section 766.314 for 2018. Based on "all available evidence" in the record, Petitioners' claim does not meet the statutory requirements for compensability under the Plan. The evidence produced at the final hearing establishes that the obstetrical services provided at Killian's birth were not delivered by a "participating physician" as defined in section 766.302(7). Therefore, Petitioners' claim does not meet the requirements for compensation under section 766.309(1), and Killian is not eligible for an award of NICA benefits under section 766.31.
