Findings Of Fact By stipulation filed January 3, 1994, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was filed on behalf of the above-styled infant against NICA on behalf of VENISE FERDINAND, MARIE VIRGILE and MANES FERDINAND (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That infant, VENISE FERDINAND, was born at Broward General Medical Center on April 1, 1992, and Broward General Medical Center was a licensed Florida Hospital and the attending physician, Joseph Nicaisse was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth 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. The parties agree that VENISE FERDINAND suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further, does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his reports dated February 10, 1993, March 12, 1993 and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1, 2 and 3. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Venise Ferdinand reveal that she suffered a left Erb's palsy directly related to the left brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Venise Ferdinand's mental functioning is normal and not impaired due to any birth related complications.
The Issue At issue is whether Isiah Jamal June, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Preliminary findings Jennifer Anne Miller and Seti June, are the natural parents and guardians of Isiah Jamel June, a minor. Isiah was born a live infant on August 23, 2002, at Central Florida Regional Hospital, a hospital located in Sanford, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Isiah's birth was Michael Geiling, D.O., who, at all times material hereto, was a "participating physician" in the 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 or spinal cord . . . 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, the proof demonstrates that Isiah, who presents with a diagnosis of athetoid cerebral palsy, is permanently and substantially physically impaired. However, mentally, Isiah is not similarly affected or, stated otherwise, he is not permanently and substantially mentally impaired. Consequently, for reasons appearing more fully in the Conclusions of Law, the claim is not compensable, and it is unnecessary to resolve whether Isiah's impairments resulted from a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation, or whether his impairments are attributable to another etiology.
Findings Of Fact Joshua Clement was born on January 2, 2012, at Holmes Regional Medical Center. He weighed 4,173 grams. Joshua's vaginal birth was complicated by shoulder dystocia. His Apgar scores were 5/9. Bag and mask ventilation was required for less than 30 seconds after birth. Joshua responded to the resuscitation and was taken to the nursery at the hospital. His newborn hospital care was essentially uneventful. Joshua was subsequently diagnosed with Erb's palsy. Donald C. Willis, M.D. (Dr. Willis), reviewed the medical records for Joshua's delivery and opined that "[t]here was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post delivery period." On February 8, 2012, Michael S. Duchowny, M.D. (Dr. Duchowny), evaluated Joshua. Upon examination of Joshua and the pertinent medical records, Dr. Duchowny opined that: Joshua's neurological examination reveals findings consistent with a diagnosis of mild Erb's palsy affecting primarily the C5/6 and to a lesser degree C7 dermatomes. He has no sensory abnormalities and his motor deficits are mild and will likely improve with time. There were no findings referable to motor impairment arising from damage to the central nervous system and certainly his cognitive abilities are entirely intact. I have reviewed records sent on January 23, 2012. The information supports the mother's history and provides no information to suggest neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury. I therefore do not believe that Joshua should be considered for compensation within the NICA program. He has a mild motor impairment which is the result of forces acting outside of the brain and spinal cord. Furthermore, his mental function is normal for age. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinions of either Dr. Willis or Dr. Duchowny. The opinions of Dr. Willis and Dr. Duchowny that there was no neurologic injury to the brain or spinal cord due to oxygen deprivation or mechanical injury are credited. Additionally, Dr. Duchowny's opinion that Joshua is not mentally impaired is credited.
The Issue Whether Dylan Tabb, a minor, qualifies for coverage under the Florida-Birth Related Neurological Injury Compensation Plan (Plan) and, if so, the amount of compensation that should be awarded. Whether the notice provisions of the Plan were satisfied by the participating physician and the hospital.
Findings Of Fact Findings related to compensability Petitioner, Clarice Tabb, is the natural mother and guardian of Dylan Tabb, a minor. Dylan was born a live infant on September 26, 2001, at Memorial Hospital, a hospital located in Jacksonville, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Dylan's birth was Grace Valente, M.D., who, at the time, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate 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 have stipulated, and the proof is otherwise compelling, that Dylan suffered a "birth-related neurological injury," as that term is defined by the Plan. Consequently, since obstetrical services were provided by a participating physician at birth, the claim is compensable. Sections 766.309(1) and 766.31(1), Florida Statutes. Findings related to the award Where, as here, the administrative law judge determines that the infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth, he is required to make a determination as to how much compensation should be awarded. Section 766.31, Florida Statutes. Here, should Petitioners elect to accept benefits under the Plan, the parties have stipulated to the following award: There are no past medical expenses recoverable under Section 766.31(1)(a), Florida Statutes, since any such expenses have been paid by Medicaid. Petitioner, Clarice Tabb, as the natural mother and guardian of Dylan Tabb, a minor, be accorded a lump sum award of $100,000.00, pursuant to Section 766.31(1)(b), Florida Statutes. NICA pay Petitioners the sum of $9,465.26, which represents reasonable attorney's fees ($7,500.00) and costs ($1,965.26) incurred in connection with the filing of the claim. Section 766.31(1)(c), Florida Statutes. NICA, consistent with Section 766.31(1)(a), Florida Statutes, shall pay all future expenses as incurred. Section 766.31(2), Florida Statutes. The notice requirements of the Plan 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. 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, 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). Pertinent to this case, at the time of Ms. Tabb's initial visit to Dr. Valente's office (February 19, 2001), as well as at the time of Dylan's birth, Section 766.316, Florida Statutes, prescribed the notice requirement, as follows: Each hospital with a participating physician on its staff and each participating physician . . . 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. Responding to Section 766.316, Florida Statutes, NICA developed a brochure titled "Peace of Mind for an Unexpected Problem" (the NICA brochure) to comply with the statutory mandate, and distributed the brochure to participating physicians and hospitals so they could furnish the brochure to their obstetrical patients.1 The dispute regarding notice With regard to the notice issue, Ms. Tabb contends the participating physician and hospital failed to provide her with a copy of the NICA brochure, and thereby failed to comply with the notice provisions of the Plan. In contrast, the health care providers contend they had a routine practice to provide their obstetrical patients with a copy of the NICA brochure (in the case of the participating physician, at the time of the patient's initial visit, and in the case of the hospital, at the time of pre-registration) and that, given such practice, it must be resolved that, more likely than not, Ms. Tabb was provided a NICA brochure and the notice provisions of the Plan were satisfied. See, e.g., Watson v. Freeman Decorating, Co., 455 So. 2d 1097, 1099 (Fla. 1st DCA 1984)("There is a general presumption that the ordinary course of business has been followed absent a showing to the contrary.") Findings related to the participating physician and notice With regard to the participating physician, it must be resolved that the proof fails to support the conclusion that Dr. Valente satisfied the notice provisions of the Plan. Such conclusion is based on the more persuasive proof which demonstrated that on February 19, 2001, when Ms. Tabb presented to Dr. Valente's office for her initial visit, Dr. Valente's office did not have, as she contends, a routine practice whereby, on their initial visit, obstetrical patients were provided a NICA brochure (either at the front desk at check-in or in a "goody bag" at the end of their first visit),2 and that Ms. Tabb was never provided a NICA brochure prior to Dylan's birth.3 Findings related to the hospital and notice. As for Memorial Hospital and the notice issue, it is resolved that on September 20, 2001, when Ms. Tabb presented to Memorial Hospital for pre-registration, the hospital had an established routine whereby the registration clerk would provide the prospective patient with a preadmission packet, which included a copy of the NICA brochure. Consequently, there being no compelling proof to the contrary, it must be resolved that, she presented for pre-registration, the hospital provided Ms. Tabb a copy of the NICA brochure. Watson v. Freeman Decorating Co., supra.
