The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether notice was accorded the patient, as contemplated by Section 766.316, Florida Statutes (2000),1 or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Yvette Ortiz and Erick Alberto Ortiz are the natural parents and guardians of Erick Alejandro Ortiz, a minor. Erick was born a live infant on December 18, 2000, at Northwest Medical Center, a hospital located in Broward County, Florida, and his birth weight exceeded 2,500 grams. Moulton Keane, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes, provided obstetrical services during the course of Mrs. Ortiz's labor, as well as Erick's delivery and resuscitation. Also providing obstetrical services during Mrs. Ortiz's labor was Alison Clarke-DeSouza, M.D.; however, Dr. DeSouza was not a participating physician in the Plan. When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth 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(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Erick suffered severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, the claim is compensable and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes (2000), provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . . Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $1,258.16 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $7,500.00, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. 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 2000). 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, 29 Fla. L. Weekly D227a (Fla. 2d DCA Jan. 14, 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 29 Fla. L. Weekly D216 (Fla. 2d DCA Dec. 17, 2003)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 29 Fla. L. Weekly D226a (Fla. 2d DCA Jan. 14, 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 form (the NICA brochure), which contained an 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 it to their obstetrical patients. Findings related to notice Mrs. Ortiz received her prenatal care at South Florida Women's Health Associates, a group practice dedicated to obstetrics and gynecology. Tara Solomon, M.D., and Moulton Keane, M.D., were among the physicians who practiced with the group. Pertinent to the notice issue, the proof demonstrates that from March 25, 2000, the date of Mrs. Ortiz's first visit to South Florida Women's Health Associates, until her presentation at Northwest Medical Center on December 17, 2000, for Erick's birth, Mrs. Ortiz was primarily seen by Dr. Solomon, who was not a "participating physician" in the plan. However, on three occasions Mrs. Ortiz was seen by Dr. Keane: once when Dr. Solomon was not available for Mrs. Ortiz's regular appointment with Dr. Solomon, and thereafter on June 21, 2000, for an amniocentesis and on October 17, 2000, for an ultrasound. Notably, although Dr. Keane was a "participating physician" in the Plan, Mrs. Ortiz was never provided a copy of the NICA brochure or notice of Dr. Keane's participation in the Plan, either during her prenatal care or Erick's birth. Also pertinent to the notice issue, the proof demonstrates that on August 25, 2000, Mrs. Ortiz presented for pre-registration at Northwest Medical Center, a facility at which she had been told the physicians associated with South Florida Women's Health Associates had staff privileges. At that time, Mrs. Ortiz supplied pertinent pre-admission data, presumably similar to that requested by Northwest Medical Center's pre- admission form (Petitioners' Exhibit 17); signed a Conditions and Consent for Treatment form (Petitioners' Exhibit 12); and was given an advance directives booklet (Petitioners' Exhibit 14) and a Northwest Medical Center Patient Handbook (Petitioners' Exhibit 13). Notably, none of the materials Mrs. Ortiz signed or was given referred to the Plan, and she was not otherwise advised of the Plan or provided a copy of the NICA brochure. On December 17, 2000, with the fetus at term (41+ weeks gestation), Mrs. Ortiz presented at Northwest Medical Center, where she was received in labor and delivery at 6:07 p.m. At the time, Mrs. Ortiz complained of uterine contractions every 10 to 13 minutes since noon, and denied bleeding or rupture of the membranes. Vaginal examination revealed the cervix at fingertip, effacement at 70 percent, and the fetus at -3 station, and contractions were noted as mild, at a frequency of 2-4 minutes, with a duration of 50-60 seconds. Dr. DeSouza, who was covering for Dr. Keane, was called and given a report on Mrs. Ortiz's status. At 7:50 p.m., Dr. DeSouza was noted at bedside. At the time, contractions were strong, at a frequency of 1 to 5 minutes, with a duration of 40 to 80 seconds, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 75 percent, and the fetus at -2 station. Artificial rupture of the membranes did not reveal any fluid draining. Routine labor room admitting orders were issued by Dr. DeSouza, and Mrs. Ortiz, who had previously been monitored as an outpatient, was admitted as an impatient, to labor and delivery. Notably, as a matter of course, the hospital did not provide NICA notice, although it could easily have done so, prior to admission as an inpatient. Following admission, the labor and delivery nurse on duty at the time, Patricia Thomas, R.N., presented two forms for Mrs. Ortiz's signature, as well as a Patient Questionnaire (also referred to as an anesthesia questionnaire in this proceeding) for her to complete. The first form was a two-sided document, the front of which contained a Consent for Anesthesia and the back of which contained a Consent for Surgery/Blood Transfusion (the consent form), which were signed by Mrs. Ortiz and witnessed by Nurse Thomas at 8:20 p.m., and 8:30 p.m., respectively. The second form presented for signature was a Notice to Obstetric Patient, regarding the Florida Birth-Related Neurological Injury Compensation Plan. The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by NORTHWEST MEDICAL CENTER prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. Not all OB/GYN physicians participate in NICA. For specifics on the program, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association, P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received and will read a copy of the brochure prepared by NICA. Name of Patient Signature Date/Time Witness Date/Time Contemporaneously with the notice, Mrs. Ortiz was given a copy of the NICA brochure.2 Here, there is no dispute Mrs. Ortiz signed the Notice to Obstetric Patient form (notice form) and no compelling proof that she was not also provided a copy of the NICA brochure. What is disputed is whether the notice form and NICA brochure were provided contemporaneously with the consent form. Petitioners also contend the notice form and the NICA brochure were not provided a reasonable time prior to delivery. Lending confusion to when the notice form and NICA brochure were provided is the fact that the notice form does not include, as the form requires, the time it was signed. Supportive of the conclusion that the notice form was not provided or executed contemporaneously with the consent form is the fact that it was not witnessed by Nurse Thomas, as one would reasonably expect, but by Mr. Ortiz, who was not present at the time the consent form was executed, and who was not present until sometime between 9:30 p.m. and 10:00 p.m. Under the circumstances, the record is not compelling that the notice form or NICA brochure was provided to Mrs. Ortiz prior to 9:30 p.m., and no compelling proof to demonstrate when, thereafter, the NICA notice was provided by the hospital. At 8:45 p.m., Dr. Keane, who had assumed Mrs. Ortiz's care, called to inquire about her status. At the time, Dr. Keane was notified that no accelerations were present, variability was decreased, the fetal heart rate baseline was 150-153 beats per minute, and no fluid was draining. Dr. Keane gave orders for observation and pain medication. At 10:10 p.m., vaginal examination revealed little progress, with the cervix at 1 centimeter, effacement at 80 percent, and the fetus at -2 station. Dr. Keane was beeped and returned the call at 10:20 p.m. At the time Dr. Keane was informed of the results of the vaginal examination; that Mrs. Ortiz was on continuous oxygen, left lateral position; and that there was no change in variability, no accelerations, and occasional late decelerations. Dr. Keane requested the fetal monitor strip be faxed to him. According to the labor record, the strip was faxed to Dr. Keane at 10:30 p.m., and at 10:45 p.m., he called to say he had reviewed the strips. At the time, the labor record notes: . . . M.D. states that at the moment delivery was not indicated. Orders received for pain medication. MD notified that patient was on continuous oxygen . . . via face mask . . . [no] fluid draining; left lateral position[;] occ[asional] late decels; [and no] spontaneous accel[erations]. At 12:10 a.m., December 18, 2000, Dr. Keane was informed that late deceleration had been noted, with decreased variability, and no accelerations. Dr. Keane ordered a labor epidural, as requested by Mrs. Ortiz. Thereafter, at 12:55 a.m., Dr. Keane was informed fetal heart monitoring revealed repetitive late decelerations, with occasional decreased variability; Dr. Keane ordered preparations for a cesarean section; at 1:35 a.m., Dr. Keane was at bedside; at 1:53 a.m., Mrs. Ortiz was moved to the operating room; and at 2:26 a.m., Erick was delivered.
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.
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 The Petition named Dr. George as the physician providing obstetric services at Ross's birth on January 28, 2010. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000) assessment pursuant to Section 766.314(4)(c), Florida Statutes. I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non- exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Adrienne George indicates that in the year 2010, the year in which Dr. George participated in the delivery of Ross Reshard, as indicated in the Petitioners' Petition for Benefits, Dr. George did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan until February 2, 2010. According to the petition, the child was born on January 28, 2010. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. George in relation to an exempt status for the year 2010. To the contrary, the attached "NICA CARES physician payment history/report" shows that on February 2, 2010, Dr. George paid the Five Thousand Dollar ($5,000) assessment required by Section 766.314(5)(a), Florida Statutes, for participating physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. George had not paid her assessment for 2010. At the time of the birth of Ross, Dr. George was not a participating physician in the Plan.
The Issue Whether Samuel J. Anderson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physicians provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2004), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2004), or the giving of notice was not practicable.2 Whether Certified Nurse Midwife (CNM) Christine Hilderbrandt was a "participating physician," given the requirements of Sections 766.302(7) and 766.314(4)(c) and (d), Florida Statutes.
Findings Of Fact Stipulated facts related to compensability Allison Anderson and Timothy Anderson are the natural parents of Samuel J. Anderson, a minor. Sam was born a live infant on July 29, 2004, at Helen Ellis Memorial Hospital, a licensed hospital located in Tarpon Springs, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Sam's birth by Matthew Conrad, 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. Sam's birth and neonatal course4 At or about 3:30 a.m., July 29, 2004, Mrs. Anderson, with an estimated delivery date of July 30, 2004, and the fetus at 39 6/7 weeks' gestation, presented to Helen Ellis Memorial Hospital complaining of uterine contractions. Notably, vaginal examination at 4:30 a.m., revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high; uterine contractions were noted as irregular (inconsistent with active labor); and external fetal monitoring was reassuring for fetal well-being, with a baseline of 130 beats per minute. At 5:30 a.m., the on-duty nurse reported Mrs. Anderson's condition by telephone to Christine Hilderbrandt, R.N., the certified nurse-midwife (CNM) managing Mrs. Anderson's care. CNM Hilderbrandt gave orders to continue monitoring, and at 6:15 a.m., the fetal heart rate (FHR) was noted as reactive, and uterine contractions were again noted as irregular. At 9:00 a.m., CNM Hilderbrandt was noted at bedside, and examined Mrs. Anderson. At the time, vaginal examination revealed the cervix at 2 centimeters dilation, 50 percent effacement, and the fetus high; the cervix was noted as very soft; and fetal heart rate remained reassuring. A report was called to Matthew Conrad, M.D., the on-call physician, who authorized augmentation of labor, with pitocin. Pitocin induction was started at 9:45 a.m.; onset of labor was called at 3:45 p.m.; epidural bolus was given at 4:14 p.m.; spontaneous rupture of the membranes, with clear fluid, was noted at 4:15 p.m.; and complete cervical dilation was noted at 5:50 p.m. In the interim, at 4:40 p.m., variable decelerations to the 70-beat per minute range were noted, with contractions, and Mrs. Anderson was given oxygen by mask. Thereafter, variables were noted as minimal, with a baseline in the 140s, and a decline to the 110s to 120s, with prompt return to baseline. However, at 6:20 p.m., the fetal heart monitor showed the onset of severe bradycardia, when Sam's heart rate dropped to the 70s for 20 seconds, with a brief return to baseline; then at 6:21 p.m., dropped to the 70s for 90 seconds, and returned to baseline for 10 seconds; and at 6:22 p.m., dropped to 75 for 4 minutes and 40 seconds. The fetal monitor was disconnected at 6:27 p.m., and Mrs. Anderson was moved to the operating room (OR) for an emergency cesarean section. In the interim, at 6:26 p.m., Dr. Conrad was paged. Dr. Conrad entered the operating room at 6:47 p.m., to find the patient prepared and draped for cesarean section; rapid sequence induction (RSI) of anesthesia was accomplished at 6:48 p.m.; the operation started (the incision was made/delivery began) at 6:49 p.m.; and Sam was delivered at 6:50 p.m. Dr. Conrad's Operative Report documented his findings, as follows: Upon entering into the abdominal cavity, a gush of blood was observed. The infant was discovered floating freely in a puddle of blood behind the uterus along with the placenta and the umbilical cord. The infant was delivered at 18:50, completely flaccid, and passed on to an awaiting Neonatologist for resuscitation. The anterior surface of the uterus was intact but was remarkable for scarring of the bladder flap to the lower uterine segment along an indentation line, especially at the left corner, consistent with a previous transverse Cesarean Section. The posterior surface of the uterus was blown apart with a 15 cm circular rent extending to and including the left lateral vessels, the left round ligament, and extending down the left side of the cervix to an apex approximately 2 cm above the external os. Multiple bleeding sites, including the left uterine artery and vein, were gushing blood on entry. The left broad ligament was mangled and shredded. The defect in the posterior wall of the uterus was irregular with a shredded border and extended inferiorly to a position near the internal os of the cervix. This hole was measured to be approximately 15 cm in diameter. * * * The bleeding was quickly controlled by the application of clamps on the offending vessels and a transfusion of packed red blood cells begun. Careful examination of the defect was performed with the findings as noted above. The defect included nearly the entire back wall of the uterus to the level of the internal os which is to say that the uterine fundus was half amputated from the cervix by force of the trauma. Additionally, the edges of the defect were shredded. My conclusion was that this uterus was damaged beyond repair and the decision to proceed to supracervical hysterectomy was made . . . . Of further note, at delivery, a true knot was observed in the umbilical cord. Dr. Conrad's preoperative diagnosis was fetal distress, and his postoperative diagnosis was ruptured uterus. At delivery, Sam was flaccid, with no respiratory effort or spontaneous movement. Delivery room resuscitation included positive pressure ventilation (PPV) by bag and mask followed by intubation at 4 minutes of age for persistent apnea. Very infrequent gasping respirations stated at approximately 30 minutes of age, with sustained respiration after 60 minutes of age. Apgar scores were recorded as 3, at one, five, ten, fifteen, twenty, twenty-five, and thirty minutes.5 Cord blood gases were not obtained. Following resuscitation, Sam was moved to the newborn nursery and placed on a ventilator (full ventilatory support with a endotracheal intubation). Sam was diagnosed with perinatal depression/severe hypoxic-ischemic encephalopathy (HIE) secondary to uterine rupture, metabolic acidosis, and noted to be in critical condition. At 7:55 p.m., the Tampa General Hospital transport team, which had been requested while Sam was being resuscitated in the OR, arrived at Helen Ellis Memorial Hospital to assume responsibility for Sam's care, and transported him (via helicopter) to the neonatal intensive care unit (NICU) at Tampa General Hospital. Sam was admitted to Tampa General Hospital at 9:20 p.m., July 29, 2004. Initial examination revealed a hypotonic baby, with decreased tone, with no papillary or gag reflex, who only responded to painful stimulation, and who was intubated and "seizing" ("lip smacking, twitching of the face, later with tonic clonic seizures"). Sam was started on phenobarbital. CT of the head (CT) on July 29, 2004, was read as follows: There is incomplete definition of the gray and white matter borders with areas of low attenuation suggesting diffuse cerebral edema. The cisterns are patient. No hydrocephalus is identified. There is prominence of the falx with no definite blood identified. Follow up is recommended. IMPRESSION: Geographic low attenuation suspicious for diffuse cerebral edema. Follow up or correlation with ultrasound examination may be beneficial. Prominence of the falx with no definite acute hemorrhage identified. An Electroencephalogram (EEG) on July 30, 2004, showed a low-voltage background without seizure activity. The results of the EEG and a neurologic consult were reported in the Consultation Report, as follows: . . . The baby was examined shortly after EEG was completed. During the entire EEG, there were intermittent twitching of lower extremities or lower face including mouth and one or both of the lower extremities. When the twitching extremity is restrained, the twitching stops, but also can be brought on by stimulation. The baby is not responding in any purposeful manner to stimulation. However, the baby does open the eyes and at times appears that it is spontaneous, but most of the time there is upper eyelid twitch and it is possible that the twitching pulls the upper eyelid up and eyes open. The pupils are small, about 1 to 2 mm and reactive to light. Corneal reflex is present, but sluggish and eyes move very slowly to doll's eye maneuver. Gag is absent, but at the time of mouth twitching, the twitching is transmitted to the palate. On examination of neuromuscular system, muscle bulk is normal, tone is decreased and there is no meaningful spontaneous movements and no purposeful movements to stimulation. The only movements that are present are intermittent twitching of either one or both feet at the same time. Deep tendon reflexes are brisk mainly in the legs, 3+. There are no rashes, no organomegaly and there is no obvious injury to the body. IMPRESSION: This is a one-day-old baby with hypoxic ischemic encephalopathy likely caused by uterus rupture. The present twitching does not represent epileptic seizures. EEG showed no correlation between the movements and EEG abnormalities. Actually the EEG is quite severely depressed. The twitching which involves the lower extremity and mouth most likely represent brain stem phenomenon and for such phenobarbital is usually not helpful. RECOMMENDATIONS: Stop phenobarbital. As long as the movements do not interfere with vital signs, no treatment is indicated. The prognosis for neurological improvement is guarded at this time. Should any new developments occur, please reconsult neurology. Seizure activity did not continue beyond the day of admission, and phenobarbital was discontinued on July 31, 2004. A repeat EEG on August 2, 2004, was severely abnormal because of depressed cerebral activities with pattern reminiscent of burst suppression. A repeat CT scan of August 3, 2004, showed little change from the previous study. That scan was reported, as follows: The ventricles appear symmetrical and midline. There is no mass effect. There is mild prominence of the falx which is not as prominent when compared to the prior study and I suspect is within normal limits for this patient. There is poor gray/white matter differentiation which may be partly due to the patient's age. Edema cannot be completely excluded and correlation with MRI is suggested. There is questionable area of low attenuation in the left occipital region, again which is nonspecific. No new hemorrhage identified. IMPRESSION: Overall little change since the prior study. There is mild prominence of the falx, however, it is not as prominent when compared to the prior study and this may be within normal limits for this patient. Poor gray/white matter differentiation which may be partly due to patient's age and degree of brain myelination. Areas of low attenuation in the left occipital region. Further evaluation with MRI is suggested. No MRI evaluation was performed. On August 23, 2004, Sam was transferred to the Neonatal Intensive Care Unit at St. Joseph's Women's Hospital for fundoplication and G-tube insertion. The Transfer Note documented the following pertinent findings: Physical Exam Upon Discharge . . . General: sleeping, NAD, not arousable, large infant . . . Lungs: coarse breath sounds bilat, poor air entry . . . Neuro: -moro, -gag, sluggish papillary reflex, responds to touch, -spontaneous movement, -spontaneous eye opening Skin: -rashes, -jaundice . . . Respiratory: Pt had respiratory distress upon delivery and was intubated at Helen Ellis prior to transfer. Initial ABG showed pH 7.23. Pt was extubated to CPAP on DOL 1. Pt was weaned to RA by DOL 5 but due to aspiration pneumonia, pt was placed back on CPAP for 3 days on DOL 11. Pt has been weaned to RA and is currently stable with oxygen saturations 88-100% on RA. Pt requires frequent suctioning and repositioning to maintain his airway. CXR performed on DOL 18 showed significant improvement in pneumonia . . . GI: Pt was noted to have increased tracheal secretions after feeds were increased to 15 ml q 3 hours which was suggestive of reflux. Pt was also noted to have aspiration pneumonia on DOL 11 therefore GI was consulted for GERD and swallowing workup. A pH probe showed significant GERD, gastric emptying study showed dysmotility and severe reflux. Swallowing study showed no[] oral pharyngeal movement with feeds suggesting inability to take po feeds. It was discussed with the family and GI to plan for a Nissen Fundoplication with G/Tube placement at St. Joseph's Hospital by Dr. Martinez . . . Neurologic: . . . Pt. has continued to have significant neurological damage without improvement since initial admission . . . . The fundoplication and G-tube insertion occurred at St. Joseph's Women's Hospital on August 25, 2004. Otherwise, Sam's hospital course was summarized in his Discharge Summary (of September 2, 2004), as follows: Neurology: Admission EEG did not show evidence of seizure activity. Phenobarbital had been discontinued at Tampa General Hospital. The infant is hypertonic and has no gag or apparent swallow. He has significant encephalopathic changes consistent with a hypoxic ischemic insult. Occupational Therapy and Physical Therapy were consulted for evaluation. They recommended hand splints. Pediatric Neurologist had been following this infant's care at Tampa General Hospital. They will resume care when he gets back there. Respiratory: Sam has occasional desaturations which clear with suctioning of the oropharynx and nasopharynx. He does not appear able to handle his oral secretions. There is no current plan for tracheostomy to aid in the management after he goes home. This will be re-evaluated at Tampa General Hospital. Sam's subsequent medical care Sam was readmitted to Tampa General Hospital on September 2, 2004, and discharged to his parent's care on September 8, 2004. Physical examination on discharge noted: General: awake, no acute distress HEENT: NCAT, AFOSF, eyes deviated upward with moving eye movements * * * Lungs: coarse transmitted upper airway sounds bilaterally, good air movement Abdomen: soft NT/ND, G-tube well-healed, abdominal incision well-healed * * * Extremities: decreased range of motion throughout Neuro: increased tone in all extremities, severe head lag, no gag reflex or papillary reflex Skin: no rashes or jaundice Diagnoses included perinatal asphyxia/severe hypoxic-ischemic encephalopathy, and severe gastroesophageal reflux with dysmotility, status post (s/p) fundoplication and G-tube. On November 27, 2004, Sam, aged 4 months, was admitted to Mease Countryside Hospital because of an episode of apnea (for 50 seconds) and acute bronchiolitis, and transferred the same day to All Children's Hospital for further management. While at All Children's Hospital, tracheostomy was performed because of inability to swallow and for better airway management. CT of the brain on November 27, 2004, was reported, as follows: IMPRESSION: Bilateral symmetric mild dilatation of the lateral ventricles. Moderate dilatation of the third ventricle. Probable bilateral symmetric thalamic calcifications. Bilateral opaque mastoid air cells. Findings: There is a mild dilatation of both right and left lateral ventricles. This lateral ventricular dilatation is fairly symmetric and greatest in the frontal horns and anterior bodies of the lateral ventricles. Occipital horns and temporal horns are nor [sic] definitely abnormally dilated. There is a mild prominence of the temporal tips. There is moderate dilatation of the third ventricle. There is probable bilateral thalamic calcification which is symmetric. The differential of basal ganglial calcification is extensive. Brain radiodensity is otherwise unremarkable. On November 28, 2004, an EEG study was done, and interpreted by Joseph Casadonte, M.D., a physician board- certified in neurology, with special competence in child neurology, as follows: Impression: Markedly abnormal EEG recording, significance level III: Generalized slowing and disorganization of the background. Increase discontinuity for age. Hemispheric asymmetry. Multifocal spike and sharp waves in locations as enumerated above. Clinical Correlation: This EEG is consistent with this child's history of hypoxic ischemic encephalopathy. It shows a pattern consistent with severe bilateral cerebral dysfunction. It also shows several areas of potential epileptogenicity. During the study, the child had several clinical events characterized as posturing. These events were not associated with any epileptiform discharges, suggesting that they are not epileptic in origin. (Stipulated Medical Composite, Book 4 of 5, p. 2853). Sam was discharged from All Children's Hospital on December 13, 2004, with a noted history of hypoxic-ischemic encephalomathy, gastroesophageal reflux disease, gastrotomy tube and Nissen fundoplication, and upper airway obstruction, now status post tracheostomy, and tracheitis (inflammation of the traches), treated. Sam remains with a tracheostomy and G-tube (feeding tube) today. At the request of Sam's pediatrician, he was readmitted to All Children's Hospital on December 30, 2004, for an EEG and consultation with Dr. Casadonte. Dr. Casadonte reported the results of his consultation, as follows: REASON FOR CONSULTATION: Performed at the request of the Florida Pediatric Service. The child is 5 months old and has severe static encephalopathy secondary to hypoxic ischemic encephalopathy. Has intercurrent illness prompting admission (tracheitis). He has no independent function. He is undergoing hyperbaric treatment. He has episodes of irregular movements, rule out seizures. He was placed on continuous bedside electroencephalogram monitoring last evening.[6] * * * The child has no independent function. He does not focus or tract. He does not reach or transfer. He has dysconjugate eyes with poorly reactive pupils. His face is symmetric. He has increased tone in all his extremities. The child underwent video electroencephalogram. He has episodes of tonic stiffening. At times these episodes are associated with attenuation of the background. At times this attenuation stays for up to several minutes. At times it occurs without associated clinical change. Sometimes he has similar clinical movements, without attenuation of the background. Background electroencephalogram is abnormal with disorganization and multifocal sharp waves. IMPRESSION: Static encephalopathy with profound mental retardation. Electroencephalogram that shows periods of abrupt attenuation, sometimes associated with a tonic stiffening. At times, the child has similar episodes of stiffening without clear associated change, and sometimes he has several spasmic-like movements that are tonic in nature. I spoke with mother at length about the above findings. Expressed to her that some of his findings would be consistent with epileptic spasms. These are mostly tonic. However, I spoke to her at length because of his severe brain injury. The electrical clinical association is inconsistent. Subsequently, Sam was seen by Paul Kornberg, M.D., a pediatric rehabilitation specialist, Radhakrishna Rao, M.D., a pediatric neurologist, Steven Goss, M.D., a pediatric ophthalmologist, and Magda Barsoum-Homsy, M.D., a pediatric ophthalmologist. Dr. Kornberg reported the results of his September 6, 2005, consultation, as follows: REVIEW OF SYSTEMS: He is in good general health. The mother reports he has stiffness in his upper and lower extremities, particularly at his elbows though she reports no difficulty with daily care . . . . His hearing was tested at Tampa General Hospital and was reportedly okay. He has a tracheostomy . . . . History of hypoxic encephalopathy with spastic quadriparesis Visual function is unclear, and the mother questions whether he may inconsistently track his lobule . . . . He is NPO and receives all nutrition by his gastrostomy tube, primarily breast milk and also water. The mother reports no consistent responses to sound . . . . FUNCTIONAL/DEVELOPMENTAL HISTORY: Samuel is dependent for all functional mobility and self-care skills. He is unable to roll or sit independently when placed in prone though his mother reports he is able to turn his head a bit but he does not consistently localize to sound. Communication is only by crying and facial expression . . . . PHYSICAL EXAMINATION: * * * NEUROLOGIC: Facies are symmetric. Tongue is midline. Gaze is dysconjugate. Tone is increased in the extremities, upper greater than lower. Spasticity is noted. Modified Ashworth score of 1+ at the hip adductors and 2 at the elbow extensors, pectoralis major, ankle plantar flexors, as well as the finger flexors. Strength could not be assessed as there was no purposeful movement. Sensation was also difficult to assess. There was no consistent cortical recognition of noxious stimulus. Deep tendon reflexes are brisk throughout with overflow. There was no clonus elicited. COGNITIVE: The patient did not smile or respond to visual threat. No tracking was appreciated. Head control was poor. ASSESSMENT: Spastic quadriparetic cerebral palsy. Global profound development delay. Contractures. Dysphagia status post gastrostomy. Gastroesophageal reflux disease status post partial fundoplication. Tracheostomy dependent. * * * Spasticity. Suspect cortical visual impairment. RECOMMENDATIONS: Continue physical therapy to maximize range of motion, positioning, and attempt to maximize gross developmental skills. Continue occupational therapy for upper extremity range of motion, splinting, as well as adaptive equipment. * * * 6. A prescription was provided for vision therapy services through Early Intervention. In an examination on March 16, 2007, Dr. Kornberg noted "profound impairment" of Sam's cognitive function. (Stipulated Medical Composite, Book 4 of 5, p. 2987). Dr. Rao reported the results of his September 12, 2005, neurological consultation, as follows: Neurological Examination: Mental Status Examination: Patient is alert and awake. Patient has dyscongugait gaits. Tongue is in midline. Limited examination. Patient tried to turn the eyes towards the sound bilaterally. Motor Examination: The tone increased in all the extremities both upper and lower. Spasticity is noted. Sensory Examination: Limited examination but appreciates touch. Deep Tendon Reflex: Brisk bilaterally. There is no clonus elicited. Clinical Impression: It is found global developmental [delay], spasticquadraperetic cerebral palsy, GI reflux as per the history with the G-tube in placed and has a history of partial fundoplication. Patient also has tract in place. Possible visual impairment. Patient also has hypoxic encephalopathy. Recommendations: We will obtain CAT scan of brain without contrast to document the extent of injury and further evaluation of intracranial pathology. We are also requesting for a routine EEG to be done . . . . The results of the CT scan (completed October 18, 2005) were reported, as follows: There is moderate ventriculomegaly probably due to under development. There is mild periventricular leukomalacia in both frontal and parietal lobes. The middle cerebral peduncles (upper mid brain) are small and this may be due to Wallerian degeneration from the reduced white matter above. IMPRESSION: MODERATE VENTRICULOMEGALY WITH THINNING OF THE WHITE MATTER AND MILD PERIVENTRICULAR LEUKOMALACIA. EVIDENCE OF WALLERIAN DEGENERATION WITHIN THE MID BRAIN DUE TO THE WHITE MATTER DISEASE ABOVE. NONSPECIFIC FAINT CALCIFICATIONS IN THE THALAMIC NUCLEI BILATERALLY. The EEG did not reveal any definite seizure activities, but did show attenuated background and slow wave activities suggesting underlying encephalopathic change. (Stipulated Medical Composite, Book 1 of 5, pp. 714-716, 748, and 797). Dr. Goss reported the results of his October 12, 2005, ophthalmology consultation, as follows: I saw your patient Samuel Anderson in the office on 10/12/05 . . . . There is a question as to how much he can or cannot see. On exam he was awake. He showed occasional posturing movements. He had occasional horizontal eye movements which did not appear to be related to external visual light stimulus. With a bright light into the eye, he did not show any significant blink reflex at all. The pupils were approximately 4ml ou and were sluggish to bright light. There were very occasional horizontal spontaneous roving movements, for the most part the eyes were relatively still and there was not a continuous horizontal nystagmus. The anterior segment showed conjunctiva to be quiet bilaterally. The left greater than right cornea showed some punctate changes in the epithelium with dryness particularly on the left. The anterior chamber was otherwise unremarkable, lens clear and fundus with DFE showed bilaterally the optic discs to be somewhat pale, diffusely. The retina was unremarkable. In terms of refractive error there may be a high myopia. Samuel has impaired visual responsiveness. This appears to be probably for the most part in the basis of central nervous system damage in the occipital cortex or subcortical "local areas." I say this because there is no spontaneous continuous nystagmus. However, there are probably is in addition an anterior pathway disease as well in relation to optic atrophy because of the pupils not responding in a normal manner as well. It is certainly possible this could be related to diffuse retinal inoxic injury as well. The only way to verify that by ERG. He has in addition as indicated in the above exam a bilateral corneal changes related to impaired blinking. I had a lengthy discussion with mom concerning the issues involved. I suggested we use topical drops, Refresh or Refresh Plus several times a day to keep the corneas moist. In regards to vision therapy there is no known experimentally proven ethicacious method for improving vision in these children, certainly visual stimulation may have a role, but its exact role is currently not known . . . . (Stipulated Medical Composite, Book 4 of 5, p. 2949). Dr. Barsoum-Hornsy reported the results of her February 22, 2007, ophthalmology consultation, as follows: EXAMINATION: Today shows some reaction to light in both eyes. Presence of severe Bell's phenomenon with both eyes turned up. External segment shows conjunctival congestion with superficial vascularization of the cornea of the right eye inferiorly at around the 3 - 6 o'clock position, left eye at around the 7 o'clock position. Corneal sensation is normal in both eyes. Iris and lens were normal. Fundus examination shows partial optic atrophy with pale optic nerve right and left eye. DIAGNOSIS: Partial optic atrophy, dry eye syndrome. (Stipulated Medical Composite, Book 5 of 5, p. 4113). The dispute regarding compensability A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth." § 766.31(1), Fla. Stat. See also § 766.309(1), Fla. Stat. Pertinent to this case, the Plan defines "birth- related neurological injury" to mean 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.7 Here, there is no dispute that obstetrical services were delivered by a participating physician at birth. There is likewise no dispute that Sam suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which rendered him permanently and substantially physically impaired. Rather, the only dispute regarding compensability is whether the brain injury Sam suffered also rendered him permanently and substantially mentally impaired. As to that issue, Petitioners were of the view that Sam was not permanently and substantially mentally impaired, while Respondent and Intervenors were of a contrary opinion. Sam's mental condition To resolve whether Sam was permanently and substantially mentally impaired, the parties offered the medical records related to Sam's birth and subsequent development. Additionally, Respondent and Intervenor Hilderbrandt each offered the testimony of a pediatric neurologist to support their view that Sam was permanently and substantially mentally impaired, and Petitioners offered the testimony of Sam's current neurologist to support their position that Sam was not so impaired. Finally, Petitioners offered the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother to demonstrate that Sam has developed an alternative means of communicating with others by use of his tongue, and that this ability, coupled with his demonstrated ability to follow instructions, interact with his family and healthcare providers, and perform repeatable tasks in his various therapies, demonstrate Sam is not permanently and substantially mentally impaired. Called on behalf of Respondent was Raymond Fernandez, M.D., a physician board-certified in pediatrics (since 1973), and neurology with special competence in child neurology (since 1980), who has practiced pediatric neurology or held teaching positions at the University of South Florida (USF), College of Medicine, since 1976. Currently, and since 1993, Dr. Fernandez has practiced pediatric neurology with Pediatric Neurology Associates, P.A., in the Tampa Bay area, and since 1994, has held the position of Clinical Professor, Department of Pediatrics, USF College of Medicine. (Exhibit 2 (Dr. Fernandez' Curriculum Vitae (CV)) to Dr. Fernandez' deposition (Exhibit 60)). At NICA's request, Dr. Fernandez performed a neurological examination of Sam on November 15, 2007. The results of that examination were documented in Dr. Fernandez' written report (Exhibit 75), and addressed in Dr. Fernandez' deposition (Exhibit 60). Dr. Fernandez' report begins by noting Sam's birth history; admissions to Tampa General Hospital, St. Joseph's Hospital, and All Children's Hospital; and examinations by Doctors Casadonte, Rao, and Kornberg, as heretofore discussed. With regard to the CT scan ordered by Dr. Rao, and reported October 18, 2005, Dr. Fernandez noted it "showed a pattern consistent with remote and diffuse hypoxic ischemic injury with ventricular enlargement, periventricular leukomalacia, thalamic injury, and [W]allerian degeneration within the midbrain." Dr. Fernandez then proceeded to note Sam's developmental history, as related to him by Mrs. Anderson, the results of his examination, and his impressions, as follows: Mrs. Anderson stated that Samuel's developmental status "gets a little better all the time." He becomes more vocal, but he does not babble nor does he speak. Visual tracking is improving, and he is blinking more, per Mrs. Anderson's description. Samuel's hearing is judged to be good, and he responds more to sounds. He responds differently to family member's voices. He cries and grimaces when he is hungry, when his diapers are wet or soiled, and when he requires suctioning of his airway. At times, when upset, he might stiffen "like having a tantrum." Samuel does not smile or laugh, but Mrs. Anderson knows when he is content by his facial expression and by his pattern of breathing characterized by a sound that resembles a sigh. He has some vision and will follow light and moving objects, although with some delay. Samuel does not reach for objects. He sleeps on his back and tends to roll over onto his side when on an incline of about 45 degrees. When flat on the floor, he cannot roll over. He moves his legs spontaneously (left more than right). Mrs. Anderson stated that Samuel is able to roll from his abdomen to his back, but not vice versa, although he does not do this very often. He does not crawl. Head control is limited. Mrs. Anderson feels that on occasion Samuel responds to what is being said to him by either becoming upset or content, as evidenced by different facial expressions and breathing patterns. PHYSICAL EXAMINATION: On November 15, 2007, weight 24 pounds (average for 15 month old), length 90 cm (average for a 2-1/2 year old), head circumference 46.2 cm (average for a 1 year old).[8] . . . There was flattening of the right posterior quadrant of the skull. There was no ridging at suture lines. Eyes were open, but there was no visual tracking. The right pupil was 2-3 mm in diameter and incompletely reactive to light. The left pupil was about 4 mm in diameter and nonreactive to light. I was unable to adequately visualize his fundi in detail, but the optic nerves appeared to be pale.[9] Samuel has a disconjugate gaze with outward deviation of the eyes. The left eye moved fully horizontally with dolls head maneuver. The right eye abducted fully, but adducted only to the midline. There was upward eye deviation intermittently. Corneal reflexes were absent, and he did not blink. There was limited facial movement. Samuel's eyes tended to close spontaneously and slowly, but he did not actively blink at regular intervals. He did not turn toward sound. Gag reflex was absent. There was pooling of secretions and profuse drooling, requiring frequent suctioning. He did not swallow. Muscle tone was increased in all limbs (arms greater than legs and left side greater than right side). There was poor head control characterized by complete head lag when pulled to the sitting position. He was unable to sit. There was very little spontaneous movement. He did not reach. He was unable to roll over. There were no purposeful movements in response to stimulation. He consistently elevated his left leg in response to tactile stimulation over the left side of the forehead and at times in response to tactile stimulation over the left side of his chest. This occurred repeatedly and in stereotypic fashion, resembling reflex movement. Reflexes were brisk throughout, and there was clonus in both ankles. With respect to mental status, Samuel fluctuated from apparent wakefulness characterized by eyes being open and periods of apparent drowsiness or sleep characterized by slow gradual closure of the eyes. He made no sounds other than noisy breathing. I was not able to elicit any purposeful or meaningful response from Samuel. He did not track visually or respond to sounds or when his name was called. He did not smile or cry nor did he become anxious during the examination. Samuel required airway suctioning frequently, but maintained good color and regular respirations. The tracheostomy site was clean. His eyes were open much of the time, and I did not see him blink. Eyes were moist without obvious corneal clouding or corneal ulceration. The left eye was red, but there was no mucoid or purulent discharge. A PE tube was present in the right ear, but one could not be seen in the left ear. There was no heart murmur. Lungs were clear with only coarse transmitted upper airway sounds bilaterally. There were no abdominal masses. The G-tube site was clean. The spine was fairly straight. Arms were tight proximally and distally with some joint restriction. There were no dysmorphic features. There were no skin abnormalities of neurological significance. IMPRESSION: Based on history, clinical findings, and brain imaging. Samuel Anderson is substantially mentally and physically impaired. Neurological and developmental findings are due to the severe anoxic encephalopathy (oxygen deprivation) sustained during labor, resulting from uterine rupture. Based on the severity of Samuel's anoxic encephalopathy and current findings, he will always be totally dependent on others for his care. There is virtually no chance that there will be significant improvement in physical and mental neurological function. In his deposition, Dr. Fernandez reaffirmed his opinion that, considering Sam's "history, findings on examination, and brain imaging, all together," Sam was permanently and substantially mentally impaired. (Exhibit 60, p. 14). In so concluding, Dr. Fernandez noted Sam's history, as evidenced by the medical records heretofore discussed;10 that on examination he was unable to elicit any meaningful response from Sam; and record evidence of severe brain injury, with burst suppression on EEG, indicative of diffuse and severe brain injury; microcephaly, strong evidence of impaired brain growth; and evidence on brain imaging (CT scan) of diffuse brain atrophy and ventricular enlargement.11 Testifying on behalf of Intervenor Hilderbrandt was Michael Duchowny, M.D., a physician board-certified in pediatrics (since 1976), neurology with special competence in child neurology (since 1979), and clinical neurophysiology (since 1982). (Intervenor Hilderbrandt Exhibit 1, Dr. Duchowny's CV). Dr. Duchowny has practiced pediatric neurology since 1977, and has been on the faculty in the Department of Neurology at Miami Children's Hospital since 1980. Currently, Dr. Duchowny is a senior staff attending in neurology at Miami Children's Hospital, and directs the neurological training programs and the clinical neurophysiology fellowship program. He holds an appointment as a professor of neurology and pediatrics at the University of Miami Miller School of Medicine. Approximately 70 percent of Dr. Duchowny's time is spent in direct patient care, both inpatient and outpatient settings, including covering intensive care units and the emergency department for consultations. (Tr., pp. 180-183). At the request of Intervenor Hilderbrandt, Dr. Duchowny reviewed the medical records associated with Sam's birth and subsequent development, including reports of neurologic and other evaluations by Dr. Fernandez and Dr. Kornberg, as well as the results of neuro-imaging studies. Based on that review, as well as the review of pictures of various neuro-imaging studies, discussed infra, Dr. Duchowny was of the opinion that Sam sustained a permanent and substantial mental, as well as physical impairment. In so concluding, Dr. Duchowny noted that four pediatric neurologists had an opportunity to examine Sam, together with a pediatric rehabilitation specialist, pediatric ophthalmologist, and nurse practitioner, and their reports were all consistent with bilateral brain damage, with severe global delay, mental and motor. Dr. Duchowny also reviewed various diagnostic studies, including pictures of the CT films of November 27, 2004, and October 18, 2005,12 which he concluded evidenced abnormality consistent with permanent and substantially mental and physical impairment. In so concluding, Dr. Duchowny noted the scans were significant for severe bilateral, superficial and deep brain damage, with ventricles abnormally enlarged due to the destruction of surrounding brain tissue; deep atrophy and superficial atrophy of the cortex and underlying white matter; and scarring of the thalami, abnormalities inconsistent with normal mental, as well as physical function. Testifying on behalf of Petitioners was Sam's current neurologist William Hammesfahr, M.D. Dr. Hammesfahr received his M.D. degree in 1982, completed his neurology training in 1988, and entered private practice in St. Petersburg, Florida, in 1988. He has been board-certified in neurology and pain management since 1990. (Exhibit 1 (Dr. Hammesfahr's CV) to Exhibit 64). Dr. Hammesfahr has seen Sam on seven occasions, starting on February 2, 2007, for his "static vascular encephalopathy."13 According to Dr. Hammesfahr's records, Sam was initially evaluated on February 2, 2007, and on February 8, 2007, he was started on "nitrobid paste for its CNS [central nervous system] vasodilating properties," that resulted in improvement in swallowing and calmer breathing.14 On March 1, 2007, Dr. Hammesfahr noted Sam's breathing rate was improving, his spasticity had improved, and he was sleeping better. (Exhibit 64, pp. 32 and 33). At the June 3, 2007, office visit, Dr. Hammesfahr noted further improvement, with "developing motor skill ability and coordinating muscle activity." (Exhibit 64, p. 36). For the September 13, 2007, visit, Dr. Hammesfahr's office notes include the following, as having been reported to him (most likely by Sam's mother): Sam is doing much better. He is recognizing and following commands with his therapist, he understands language, he needs less suctioning than before and the family feels he is much more aware. (Exhibit 64, p. 46). At Sam's November 26, 2007, visit, Dr. Hammesfahr noted more voluntary motion, and at his last visit in March 2008, Dr. Hammesfahr testified that Sam was "a little more alert, . . . a little bit better trunk control, head control, tends to focus on his surroundings a bit more each [visit]." (Exhibit 64, pp. 55 and 57). Based on his evaluation of Sam, as well as his limited review of Sam's history and the results of his CT scans, as reported by the radiologist, Dr. Hammesfahr expressed concern that "what we're really dealing with is a child who's essentially locked in at this point." (Exhibit 64, p. 59). Dr. Hammesfahr concluded, based on his review of CT scan reports, that the reported findings did not correlate with Sam's physical disabilities, and that Sam's injury is probably not an injury to his brain but, rather, an injury to his brain stem. Consequently, Dr. Hammesfahr was of the opinion that Sam could have very good cognitive ability, but little or no physical ability to express it.15 (Exhibit 64, pp. 59-61). Notably, although Dr. Hammesfahr has observed some improvement in Sam's physical function, he shares the view of others that Sam is permanently and substantially physically impaired. Moreover, Dr. Hammesfahr does not foreclose the likelihood that Sam may ultimately be shown to be permanently and substantially mentally impaired. Rather, he articulates his opinion, as follows: I don't think you can say that he is -- While I believe that there's probably going to be some degree of permanent impairment to some degree, I don't think that you can make any kind of predictions of the future right now for him. I think, if anything, the evidence should be weighted in his favor that he's got a good chance of significant cognitive abilities in the future. (Exhibit 64, pp. 7 and 8). It is also notable that in formulating his opinions, Dr. Hammesfahr relied on the CT reports, and did not review the films or pictures of the films, as Doctors Fernandez and Duchowny did. Finally, it is worthy of note that Sam was never shown to have communicated with Dr. Hammesfahr by tongue movement and that what communication did occur appeared more an emotional response, than a reflection of a higher level of cognitive function.16 To further support their contention that Sam was not permanently and substantially mentally impaired, Petitioners offered the testimony of Sam's occupational therapist (Laura Francis), vision therapy teacher (Barbara Czarnopy), chiropractor (Daniel Towle, D.C.), home health nurse (Jennifer Harris, LPN), parents, and grandmother (Nancy Judge). In the experience of Ms. Francis, Sam would indicate he wanted to do an activity by thrusting his tongue to indicate yes, and not moving this tongue to indicate no. Other ways Sam responded or communicated were described by Ms. Francis, as follows: . . . Well, if he doesn't like something he'll cry or he'll turn colors. He gets like this purplish look to his face if he's mad at you or he'll scrunch his face if he's mad at you. He'll stiffen up if he's mad at you. And then when he's not mad at you and he likes what he's doing he's relaxed and, you know, yeah, he's more relaxed and just, not say easygoing, but, you know. (Exhibit 63, p. 15). Ms. Francis also noted that during the course of her occupational therapy with Sam she introduced a number of activities to improve his physical and sensory needs, including cause/effect toys. With regard to those toys, if Sam was familiar with it, Ms. Francis observed he could activate it on a regular basis, albeit with assistance (i.e., holding it in front of him). (Exhibit 63, pp. 10 and 23). Ms. Czarnopy, Sam's vision therapy teacher, is a homebound teacher of the visually impaired, is employed by the Pasco County School System, and has provided services for Sam once a week (Mondays, 12:00-1:00 p.m.) since August 2006. Ms. Czarnopy, like Ms. Francis, noted that Sam thrusts his tongue to indicate yes, and makes no movement to indicate no. Ms. Czarnopy also uses cause/effect toys during her sessions, to improve eye-hand coordination. The cause/effect toys Ms. Czarnopy uses, and has used for a year or longer, are designed for children 6 months to 18 months of age. According to Ms. Czarnopy, every time she demonstrates a new toy and every time she reintroduces the toy, she places Sam's hand on the lever to show him how to do it, and that he regularly activates the toy. (Tr., 129, 147, and 148). However, Ms. Czarnopy also agreed that under the Pasco County Schools ESE Program guidelines Sam is considered "profoundly mentally handicapped"17; that because of his injury Sam has suffered permanent mental impairment, although she declined to answer whether it was substantial18; that Sam's social and vocational development have been significantly impaired; and that, regardless of the degree of any cognitive impairment, Sam will, given his physical impairment, require substantial accommodation to exercise any cognitive functions he has. (Tr., pp. 155-157, 164, 165, and 169). Dr. Towle, a chiropractic physician, has been seeing Sam since April 2007, on a once-a-week basis, with the aim of providing some improvement to his physical function. According to Dr. Towle, Sam is "very aware of his surroundings," and "cooperate[s]" during therapy sessions. (Tr., pp. 21 and 25). As for his ability to express his needs, Dr. Towle was asked the following questions and gave the following responses: Q. Does Sam -- in your experience with his language that you have learned, does he have a way of telling you yes? A. Yeah. Well, he'll curl forward. Then there are times where -- it sounds like one of my cats -- he'll stick his tongue out at me. * * * Q. All right. Now, you said that Sam has this tongue thrust? A. Uh-huh. Q. What is the tongue thrust for? A. The nearest example I could give you would be a yes or a no. It would be -- no. I'll just leave it as a yes or no. You know, when it pops out -- I'm sorry, when his tongue sticks out, it's a yes. When he clinches his fists and throws them back, it means no. So, you know, it's kind of just paying attention to details. Q. Meaning as a healthcare provider paying attention to details? A. Yeah . . . . (Exhibit 68, pp. 23, 27). However, with regard to Sam's mental function, Dr. Towle felt unqualified to express an opinion, and declined to do so. (Exhibit 68, p. 28). Mrs. Harris, Sam's home health nurse for about 1 1/2 years, when asked whether Sam was "responsive" to her answered "yes." (Exhibit 66, pp. 9 and 10). In explaining how Sam was "responsive," Mrs. Harris testified: Q. . . . What do you mean by that when you express -- A. Him being responsive? Q. Sure. A. He was -- of course, during my care, I was there for day shift, and in the afternoons, when he went down for his nap, there would be times when I would put him in his crib, and he seemed extremely unhappy and would scream and cry until I would pick him up, at which point he would immediately be soothed. There were times when he would -- if I was singing to him, he would watch me or watch me walk across the room to get something, and that's, you know -- (Exhibit 66, p. 10). From Sam's grandmother (Nancy Judge), we learn that Sam will make some choices (i.e., when asked if he would like something) by thrusting his tongue for yes, and not thrusting for no; that Sam will likewise show a preference for a color, when asked "[d]o you like this color," by thrusting or not thrusting his tongue, but does not know colors; and that Sam was taught the tongue thrusting technique by Laura, his occupational therapist. (Exhibit 62, pp. 2, 5, 6, 21). We also learn that when Sam is angry or people do not pay him attention, Sam will display displeasure by "a really angry face and . . . huffing and puffing and crying and screaming." (Exhibit 62, pp. 7 and 20). From Sam's parents, we hear similarly regarding Sam's use of tongue thrusts, and his expression of anger or disappointment. (Tr., pp. 43-58); 101-104). The medical records and the testimony of the parties' experts (Doctors Fernandez, Duchowny, and Hammesfahr), have been thoroughly reviewed. Having done so, it must be resolved that among the physicians who addressed the likelihood that Sam was substantially mentally impaired, Doctors Fernandez and Duchowny were the more qualified to address the issue, their testimony was the more candid and compelling, and their testimony was most consistent with the medical records and the observations of other physicians who have treated Sam. Consideration has also been given to the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother regarding Sam's ability to communicate, to follow instructions and perform repeatable tasks. However, such proof was lacking in substance, and insufficient to outweigh the credible testimony of Doctors Fernandez and Duchowny, as well as the other evidence of record. Moreover, and found credible, were the observations of Doctors Fernandez and Duchowny, that if Sam's activities were indeed a reflection of a higher intellect, as opposed to a rudimentary or emotional response, they should be reproducible and objectively quantifiable on neurologic examination. (Exhibit 60, pp. 20 and 21; Tr., pp. 226 and 227). Notably, such proof has not been provided. Accordingly, it is resolved that, more likely than not, Sam is permanently and substantially mentally impaired, and the claim is compensable. The notice issue Apart from contesting compensability, Petitioners also 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 health care providers. 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 (2004), 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 (2004), 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[19] 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."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so that they could furnish a copy of it to their obstetrical patients. (Exhibit 13). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provisions of the Plan, because it failed to "include a clear and concise explanation of a patient's rights and limitations under the plan." However, Petitioners' contention, as well as the argument they advance to support it,20 has heretofore been rejected. Dianderas v. Florida Birth-Related Neurological Injury Compensation Association, 973 So. 2d 523, 527 (Fla. 5th DCA 2007)("[T]he NICA "Peace of Mind" brochure satisfies the legislative mandate of providing a 'clear and concise explanation of a patient's rights . . . and limitations . . . under the plan.'"). Findings related to the participating physicians and the notice issue Mrs. Anderson received her prenatal care at West Coast Medical Group, Inc., d/b/a West Coast Obstetrics & Gynecology (West Cost OB/GYN), a practice that was owned and operated by Helen Ellis Memorial Hospital.21 West Coast OB/GYN maintained offices in Tarpon Springs, which were staffed by A. Trent Williams, M.D., Michelle Golding, CNM, Amy Harrington, CNM, and Christine Hilderbrandt, CNM, and an office in New Port Richey, which was staffed by Matthew Conrad, M.D., and Teresa Conrad, M.D. Notably, Doctors Williams, Matthew Conrad, Teresa Conrad, and Certified Nurse Midwife (CNM) Hilderbrandt were employees of Helen Ellis Memorial Hospital.22 (Exhibits 71 and 59, p. 10). Mrs. Anderson was seen at the Tarpon Springs office. Pertinent to the notice issue, the parties have stipulated that at all times material hereto Matthew Conrad, M.D., Teresa Conrad, M.D., and A. Trent Williams, M.D., were participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan. Moreover, the proof otherwise demonstrates that the fee for their participation for calendar years 2003 and 2004 was paid, and they were provided a certificate of their participation by NICA. (Pre-Hearing Stipulation, Admitted Facts; Exhibits 4 and 5). Moreover, while her status was not stipulated to, the proof demonstrates that the fee for CNM Hilderbrandt for participation for calendar years 2003 and 2004 was paid, and she was provided a certificate of her participation by NICA. (Exhibits 2, 3, and 4). Whether CNM Hilderbrandt otherwise met the requirements to qualify as a participating physician, will be addressed infra. On December 12, 2003, Mrs. Anderson presented to the Tarpon Springs office of West Coast OB/GYN for her initial prenatal visit. At the time, consistent with established practice, Mrs. Anderson was provided a number of forms to complete and sign, including a New Patient Registration Information Form, Consent to Treat, Assignment of Benefits, and Notice to Obstetrics Patients Regarding NICA (to acknowledge receipt of the NICA brochure). The Notice of Obstetric Patient form provided: West Coast Obstetrics & Gynecology Notice to Obstetric Patients Regarding NICA (see section 766.316, Florida Statutes) I have been furnished information by West Coast Obstetrics and Gynecology, prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that M. Conrad MD, T. Conrad MD, A. T. Williams MD, Michelle Golding, CNM, Amy Harrington CNM, and Christine Hilderbrandt CNM, are participating providers 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), P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received a copy of the brochure by NICA. print patient name Patient social security number patient's signature date witness date (Exhibit 12). Mrs. Anderson signed and dated the form. Here, Mrs. Anderson acknowledged she signed the Notice to Obstetric Patient but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that the notice requirements of Section 766.316 have been met by Doctors Williams, Matthew Conrad, and Teresa Conrad, and by the certified nurse midwives (including CNM Hilderbrandt, if she were a participating physician, and required to give notice). Findings related to the hospital and notice On June 24, 2004, Mr. and Mrs. Anderson presented to Helen Ellis Memorial Hospital and pre-registered for Sam's delivery. There, the Andersons were interviewed by a registration clerk, who gathered certain demographic information (such as name, age, address, social security number, marital status, next of kin), employment information, insurance information, and delivery information (physician's name and expected due date), and entered it into a computer.23 The Andersons executed no documents at that time, and were not provided a NICA notice or a NICA brochure, although it was practicable to have done so. Regarding NICA notice, it was the hospital's policy when Mrs. Anderson pre-registered, as it is today, to only provide the NICA notice and a copy of the NICA brochure when the patient presented to the Women's Center (the eighth floor) in labor or with other pregnancy-related issues. (Exhibit 58, p. 21; Tr., 312). Apart from pre-registration, Mrs. Anderson did not present to the hospital until July 28, 2004. At 5:30 a.m., July 28, 2004, Mrs. Anderson presented to Helen Ellis Memorial Hospital complaining of irregular contractions for 24 hours, with increased intensity since 4:00 a.m. External fetal monitoring was applied, and revealed a fetal heart rate in the 140 beat per minute range, and vaginal examination revealed the cervix at fingertip to 1 centimeter, effacement thick, and the fetus high. Subsequent vaginal examinations at 6:15 a.m., and 7:45 a.m., were unchanged, nonstress test (NST) was reactive, and at 8:00 a.m., Mrs. Anderson was discharged home with a prescription for Ambien (a sleep aid) and instructions to rest. Diagnosis on discharge was false labor. Notably, when admitted on July 28, 2004, Mrs. Anderson executed (at 5:30 a.m.), a two-page form, that included a Consent to Treatment, and at some time thereafter, a NICA acknowledgment form (to acknowledge receipt of the NICA brochure). (Stipulated Medical Composite, Book 1 of 5, pp. 119 and 120). The NICA acknowledgment form provided: HELEN ELLIS MEMORIAL HOSPITAL Tarpon Springs, Florida I have been furnished information by Helen Ellis Memorial Hospital prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that Helen Ellis Memorial Hospital participates in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. I understand that for specifics on the program I can contact the Florida Birth-Related Neurological Injury Compensation Association (NICA) as described in the brochure prepared by NICA titled Peace of Mind for an Unexpected Problem. I further acknowledge that I have received a copy of the brochure. DATED this day of , (year) Patient's Signature Social Security Number (Exhibit 74). Mrs. Anderson signed the form, and entered her social security number. Here, Mrs. Anderson acknowledged she signed the NICA acknowledgment form, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure, as required by Section 766.316, Florida Statutes. However, whether such notice was efficacious will be addressed, infra. Following her discharge from Helen Ellis Memorial Hospital the morning of July 28, 2004, Mr. and Mrs. Anderson ate breakfast, and then returned to their house, where Mrs. Anderson took an Ambien and slept for the remainder of the day. During the night, Mrs. Anderson monitored her contractions, which continued as they had been, and spoke with either CNM Hilderbrandt or Golding, who advised her, since she was to be induced in a few days anyway, to return to the hospital and have the baby. (Tr., pp. 36 and 37). Mrs. Anderson returned to Helen Ellis Memorial Hospital at 3:30 a.m., July 29, 2004. At the time, vaginal examination revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high, and uterine contractions were noted as irregular (inconsistent with active labor). Mrs. Anderson executed a Consent to Treatment form at 4:20 a.m., and was admitted for observation, and at some time thereafter, Mrs. Anderson signed a NICA acknowledgment form (to acknowledge receipt of the NICA brochure), identical to the form she signed on July 28, 2004. Again, Mrs. Anderson acknowledged she signed the NICA acknowledgment form but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure. However, whether such notice was efficacious will be addressed, infra. Here, given the circumstances, including the inherent distractions associated with Mrs. Anderson's presentation on July 28, 2004, and July 29, 2004, as well as the lack of proof as to when NICA notice was provided and the circumstances under which it was provided, it cannot be resolved, with the requisite degree of certainly, that the giving of notice was efficacious. Nevertheless, were these the only contacts Mrs. Anderson had with the hospital, it would likely be concluded that it was not practicable to have given notice earlier. However, since Mrs. Anderson pre-registered for the delivery of Sam on June 24, 2004, and she was not provided a NICA notice or brochure, although it was practicable to have done so, it must be resolved on the facts of this case that the hospital failed to comply with the notice provisions of the Plan.24 The participating physician issue Under Subsection 766.314(4)(c), Florida Statutes, a certified nurse midwife may be deemed a "participating physician," under the following circumstances: . . . Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised by a participating physician who has paid the assessment required by this paragraph and paragraph (5)(a). Supervision for nurse midwives shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features . . . . To support the conclusion that CNM Hilderbrandt would be supervised by a participating physician, who would be easily available, Intervenor Hilderbrandt offered a Statement of Supervising Physician, signed by A. Trent Williams, M.D., and herself, on April 10, 2002, and April 9, 2002, respectively, which provided: A. Trent Williams, M.D., license #ME0065859, of 1501 S. Pinellas Avenue, Suite T, Tarpon Springs, FL 34689 maintains a primary supervisory relationship with Christine Hilderbrandt, ARNP-CNM, license #ARNP2729292, of the same address. All functions contained within the Practice Guidelines may be performed under general supervision. The statement further provided that: The following physicians also agree to perform in a supervisory capacity under the Practice Guidelines for the above-named ARNP-CNM when she administers to the needs of her patients within the Helen Ellis Memorial Hospital setting during their respective on-call rotations: That provision was signed by Dr. Matthew Conrad, Dr. Teresa Conrad, and Dr. S. Tatiana Goodwin (who was associated with the practice at that time). (Exhibit 7). To support the conclusion that there existed a "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," CNM Hilderbrandt presented a document titled "West Coast Obstetrics & Gynecology, Certified Nurse Midwife Protocol." The document was labeled "edit copy . . . a. t. williams," contained numerous handwritten revisions, questions, and edits, and was not signed or dated. CNM Hilderbrandt described the document as a draft she and Dr. Williams worked on; conceded it was not the final document, which she averred was in Dr. Williams' office; and explained she did not produce the final draft because she did not have it. (Tr., pp. 257-261). Notably, CNM Hilderbrandt made no showing of what efforts, if any, were made to secure the final document from Dr. Williams or West Coast OB/GYN, who were parties to these proceedings, or account for its unavailability. In addition, CNM Hilderbrandt offered testimony that she signed protocols each year, and relied on the office manager to file them with the State of Florida, Board of Nursing, as required by Chapter 464, Florida Statutes, and Florida Administrative Code Rule 64B9-4.010.25 (Exhibit 59, pp. 24-26; Tr., pp. 244 and 245). However, the proof established that no protocol regarding CNM Hilderbrandt was filed in 2002 or 2003, and an established protocol (as between Dr. Williams and CNM Hilderbrandt), that was filed with the Board of Nursing on April 13, 2004 (and dated April 1, 2004), was apparently destroyed, albeit prematurely given the Board of Nursing's four year retention policy. (Exhibit 9). Nevertheless, Florida Administrative Code Rule 64B9-4.010(3) requires that "[a]fter the termination of the relationship between the ARNP and the supervising professional, each party is responsible for ensuring that a copy of the protocol is maintained for future reference for a period of four years." Here, CNM Hilderbrandt did not produce any protocol because "I don't have them." (Tr., p. 257). Again, she did not explain their lack of availability, or what efforts, if any, were made to secure copies from Dr. Williams or West Coast OB/GYN. Given the proof, CNM Hilderbrandt demonstrated that she would be supervised by a participating physician, who would be easily available. However, given CNM Hilderbrandt's failure to offer the protocols she claimed were in place, the proof failed to establish that there existed "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," as required by Section 766.314(4)(c), Florida Statutes, and therefore failed to establish that CNM Hilderbrandt was a "participating physician" at the time of Sam's birth.26 Miscellaneous matters Apart from resolving whether the hospital and the "participating physicians" complied with the notice provisions of the Plan, Petitioners also requested that the administrative law judge resolve whether West Coast Medical Group, Inc., and Holly Maria Bauer, R.N. (a nurse who assisted during Mrs. Anderson's labor and delivery at Helen Ellis Memorial Hospital on July 29, 2004), complied with the notice provisions of the Plan. However, West Coast Medical Group, Inc., was not a hospital, and not required to contribute to the NICA program, and Nurse Bauer was not shown to have been eligible to participate, or to have elected to participate. Consequently, they had no obligation to give notice. § 766.316, Fla. Stat. ("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 alternatives for birth-related neurological injuries.") Petitioners have also requested that the administrative law judge resolve whether the hospital, participating physicians, CNM Hilderbrandt, West Coast Medical Group, Inc., and Nurse Bauer are entitled to immunity under Section 766.303(2), Florida Statutes. (Petition for Determination of Availability of NICA Coverage, paragraphs 41 b and e; Prehearing Stipulation, page 2, Petitioners' Statement of the Nature of the Controversy). However, the jurisdiction of an administrative law judge is limited to whether the infant has sustained a birth-related neurological injury, whether obstetrical services were delivered by a participating physician at the birth, how much compensation is awardable, and, if raised, whether the notice provisions of the Plan were satisfied. § 766.309(1), Fla. Stat. Whether any person or entity is entitled to invoke the immunity from tort liability provided for in Subsection 766.303(2), Florida Statutes, is not within the jurisdiction of the administrative law judge to resolve. Depart v. Macri, 902 So. 2d 271 (Fla. 1st DCA 2005); Gugelmin v. Division of Administrative Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002). Consequently, these issues will not be addressed.
