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 Jacqueline Simone Jackson (Jacqueline), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' settlement of a civil suit against the hospital where Jacqueline was born for negligence associated with her birth bars them from recovery of an award under the Plan. Whether the participating physicians complied with the notice provisions of the Plan.
Findings Of Fact Findings related to compensability Tracie Turner Jackson and Ulysses Bernard Jackson are the natural parents and guardians of Jacqueline Simone Jackson, a minor. Jacqueline was born a live infant on December 8, 1999, at Orlando Regional Healthcare System, d/b/a Arnold Palmer Hospital for Women and Children (Arnold Palmer Hospital), a licensed hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Jacqueline's birth were Alejandro J. Pena, M.D., and Marc W. Bischof, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Jacqueline suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. The settlement with Arnold Palmer Hospital In 2002, Tracie Turner Jackson and Ulysses Bernard Jackson, individually and as parents and natural guardians of their minor daughter, Jacqueline Simone Jackson, Plaintiffs, filed a medical malpractice claim arising out of the birth of Jacqueline against Orlando Regional Health Care System, Inc., d/b/a Arnold Palmer Hospital for Women and Children; Alejandro J. Pena, M.D.; Marc W. Bischof, M.D.; Physician Associates of Florida, Inc.; T. Zinkil, R.N.; S. Furgus, R.N.; Nancy Ruiz, R.N.; L. Baker, R.N.; T. Flyn, R.N.; and Nancy Ostrum, R.N., Defendants, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, Case No. 2002-CA-6770 Div. 34. A settlement was reached with Arnold Palmer Hospital, but the case against Dr. Pena, Dr. Bischof, and Physician Associates of Florida, Inc., remained pending.3 Given Petitioners' settlement with Arnold Palmer Hospital, and the provisions of Section 766.304, Florida Statutes (1999)4("An action may not be brought under ss. 766.301- 766.316 if the claimant recovers or final judgment is entered."), Petitioners and Respondent stipulated that "Petitioners are not entitled to any actual payment or award from NICA, even if a finding is made that the claim is compensable and adequate notice was given." (Petitioners' letter of November 18, 2004, filed November 19, 2004, and Respondent's letter of November 16, 2004, filed November 16, 2004.) The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the physicians' claim of Plan immunity by averring that the participating physicians who delivered obstetrical services at Jacqueline's birth (Doctors Pena and Bischof) failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether either participating physician gave the required notice. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions 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. Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (See, e.g., Petitioners' Exhibit 2, the NICA brochure, "This brochure is prepared in accordance with the mandate of [Section] 766.316, Florida Statutes.") Findings related to the participating physicians and notice Mrs. Jackson received her prenatal care at the Longwood Center, one of 7 offices in the Orlando area operated by Physician Associates of Florida (PAF), a group practice comprised of 35 physicians, including 16 obstetrician- gynecologists. (See, e.g., Intervenors' Exhibits 1, 2, 4, and 6.) At the time, four obstetricians staffed the OB-GYN department at the Longwood Office, Dr. Marc Bischof, who provided obstetrical services during Jacqueline's birth; Dr. Robert Bowels; Dr. Peter Perry; and Dr. Jose Lopez-Cintron. However, as a group practice, all obstetricians rotated delivery calls at the hospital, so it was possible, as occurred in this case with Dr. Pena, that a doctor from a different office would participate in the delivery. Notably, all obstetricians associated with PAF were participating physicians in the Plan. On April 12, 1999, Mrs. Jackson presented to the Longwood Center for her initial visit. At the time, consistent with established routine, the receptionist provided Mrs. Jackson with a packet of information that included a number of forms for her to complete and sign, including: a Patient Information form; a Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form; a Triple Test Form (a screening test for Down's Syndrome); a Prenatal Diagnosis Screening Questionnaire; and a Notice to Obstetrical Patient (to acknowledge receipt of the NICA brochure that was, indisputably, included in the packet). The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by Physician Associates of Florida prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that [5] is a participating physician 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 1-800-398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 199 . Signature (NAME OF PATIENT) Social Security No.: Attest: (Nurse or Physician) Date: Mrs. Jackson completed each of the forms, including the Notice to Obstetric Patient, by providing the requested information, and then signing and dating the forms. (Petitioners' Exhibit 1). Here, there is no dispute that Mrs. Jackson signed the Notice to Obstetric Patient or that she received a copy of the NICA brochure on her initial visit. There is likewise no dispute that, given the blank space, the notice form was inadequate to provide notice that Dr. Bischof, Dr. Pena, or any obstetrician associated with PAF was a participating physician in the Plan. Rather, what is disputed is whether, as contended by Intervenors, Mrs. Jackson was told during her initial visit that all obstetricians in PAF were participants in the Plan.6 Regarding Mrs. Jackson's initial visit, the proof demonstrates that, following completion of the paperwork, Mrs. Jackson was seen by Nurse Posey for her initial interview. Typically, such visits lasted approximately 45 minutes, with 30 minutes spent reviewing the patient's history, as well as the paperwork she received in the packet, and 15 minutes spent on a physical examination. According to Nurse Posey, she conducted a minimum of two initial prenatal interviews daily, five days a week, and followed the same procedure during each interview. As described by Nurse Posey, during the initial interview she always discussed each form (the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form, and the Notice to Obstetric Patient) individually, and when the form had been discussed she would co-sign the form. (Transcript, pp. 65- 68) Moreover, as for the NICA program, Nurse Posey always confirmed that the patient had received the NICA brochure, and told the patient that PAF's obstetrical service was "a group practice; that anyone in the group could do the delivery; and that each member of the group was a participant in the NICA program." (Transcript, pp. 68-70) Finally, Nurse Posey documented her routine through an entry on the prenatal flow sheet (Intervenors' Exhibit 6), which noted she had provided the patient information on the various tests, as well as the NICA brochure and notification. Here, that entry read: "Pt given info on diet, exercise, HIV screening, triple test, NICA pamphlet & notification & cord blood storage." (Petitioners' Exhibit 1, Intervenors' Exhibit 6, and Transcript, pp. 70-78.) In this case, Nurse Posey was confident she had followed her routine, since she would not have co-signed the various documents, such as the Notice to Obstetric Patient, or made the entry on the prenatal flow sheet unless she had done so. In response to the evidence offered by Intervenors on the notice issue, Mrs. Jackson testified there was never a discussion of the NICA program, and she was never told the physicians associated with PAF's obstetrical program were participating physicians in the Plan. However, Mrs. Jackson acknowledged that Nurse Posey questioned her regarding her medical history, and that she explained the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, and the HIV form. (Transcript, pp. 141-145) As for the Notice to Obstetric Patient, Mrs. Jackson initially denied having read it; then testified she may have read it "briefly," but "didn't go into details" or "seek out specifics"; and finally stated she could not remember reading the form, but could not deny that she may have read it. (Transcript, pp. 150, 151, 156-159) Here, giving due consideration to the proof, it must be resolved that the more persuasive proof supports the conclusion that, more likely than not, Nurse Posey, consistent with her routine, discussed the NICA program with Mrs. Jackson on her initial visit, and informed Mrs. Jackson that the physicians associated with PAF's obstetrical program were participating physicians in the Plan. In so concluding, it is noted that, but for the NICA program, Mrs. Jackson acknowledged Nurse Posey otherwise followed her routine; that it is unlikely, given such consistency, Nurse Posey would not have also discussed the NICA program; that Nurse Posey, as was her routine, co-signed each of the forms she discussed with Mrs. Jackson, including the Notice to Obstetric Patient; that Nurse Posey, as was her routine, documented her activity on the prenatal flow sheet; and that Mrs. Jackson evidenced little recall of the documents she signed or the discussions she had with Nurse Posey. Finally, Nurse Posey's testimony was logical, consistent, and credible, whereas Mrs. Jackson's testimony was often equivocal. Jurisdiction
Findings Of Fact By stipulation filed November 12, 1993, petitioners and respondent stipulated as follows: COMES NOW, CHARLES PATRICK, ESQUIRE, Attorney for CLYDE RAY, JR., a minor, and LISA TAYLOR and CLYDE RAY SR., individually and as parents and natural guardians of CLYDE RAY, JR., and COMES NOW, MARK J. ZIENTZ, ESQUIRE, Attorney for FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, who hereby stipulate and agree as follows: That pursuant to Chapter 766, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth Related Neurological Injury Compensation Association (the Association) on behalf of Clyde Ray, Jr., and Clyde Ray, Sr., and Lisa Taylor (the Petitioners) for benefits under Chapter 766, F.S. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by Petitioners and a timely denial was filed on behalf of the Association. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, requires an infant to suffer both a permanent and substantial mental and physical impairment to fall within the definition of a "Birth-related neurological injury" making said infant eligible for coverage by the Florida Birth-Related Neurological Injury Compensation Plan. The parties agree that the infant, Clyde Ray, Jr., does not exhibit substantial physical impairment so as to fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302(2), Florida Statutes. That the infant, Clyde Ray, Jr., was born at Jackson Memorial Hospital on June 17, 1990, and that said hospital was a licensed Florida Hospital and the attending physicians were participating physicians within the meaning of Chapter 766, Florida Statutes. WHEREFORE, based upon the above stipulated set of facts, it is respectfully requested that the Division of Administrative Hearings approve the stipulations as being consistent with the evidence in this cause and enter an order denying the claim against the Association on the basis that Clyde Ray, Jr., did not suffer a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes.
