The Issue Whether Petitioners' claim qualifies under the Florida Birth-Related Neurological Injury Compensation Plan. See § 766.309(1)(a) and (b), Fla. Stat.1 Whether notice was accorded the patient (mother) by the healthcare providers, as contemplated by Section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an emergency medical condition, as defined in Section 395.002(8)(b), Florida Statutes, or the giving of notice was not practicable.2
Findings Of Fact Krystle-Lyn Arens is the natural mother of Logan Allgood. Keith Allgood is the natural father of Logan Allgood. Logan Allgood was born a live infant on September 2, 2005. Logan Allgood was born at LRMC. There is no dispute that LRMC paid the money and filed its required paperwork in accordance with the NICA Plan so that it constitutes a licensed Florida hospital that is "covered" by the NICA Plan. Logan Allgood's birth weight was 3,963 kilograms.5 Jeffrey Puretz, M.D., delivered obstetrical services in the course of labor, delivery, and resuscitation in the immediate post-delivery period in a hospital. Moreover, there is no longer a dispute among the parties that at all times material, Dr. Puretz and Patricia Richey, ARNP/CNM, were "participating physicians" in the NICA Plan, as defined by Sections 766.302(7) and 766.314(4)(c), Florida Statutes. At all times material, Jeffrey Puretz, M.D., was employed with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. Dr. Puretz provided Ms. Arens a NICA acknowledgment form bearing the Lakeland OB/GYN P.A. letterhead, more than a week after Logan Allgood was born, and Ms. Arens signed it. No party contends that this document or a contemporaneous provision of information about NICA is sufficient pre-delivery notice by which Ms. Arens could make an informed choice of physician or hospital prior to Logan's birth. The exhibits herein show that Logan Allgood suffered a hypoxic ischemic event which occurred in the course of labor and delivery. Each party has stipulated or does not contest that Logan Allgood suffered a "birth-related neurological injury," as defined in Section 766.302(2), Florida Statutes, or that the Order entered herein on April 1, 2009, determined that Logan had suffered a "birth-related neurological injury."6 Lakeland OB/GYN, P.A., does business in its own name, housing its medical physicians specializing in obstetrics, at 1733 Lakeland Hills Boulevard, and does business as Central Florida Women's Care in a separate building located four blocks further south at 1525 Lakeland Hills Boulevard, where it houses its certified nurse midwives. Physicians supervise the midwives on a rotating basis. On January 17, 2005, Ms. Arens, who was then age 15 and who had just learned she was pregnant, went with her mother and her child's father to Central Florida Women's Care. This was her first and only contact with either Central Florida Women's Care or Lakeland OB/GYN, P.A., prior to her arrival at the hospital, LRMC, for a full-term delivery on August 30, 2005. She had no appointment, and was told that in order to be seen by a midwife or physician, the provider required that she be interviewed and fill out and sign specific forms. On January 17, 2005, at Central Florida Women's Care, while her mother and Mr. Allgood waited elsewhere in the building, Ms. Arens was interviewed by a licensed practical nurse, Betty Kelly, LPN. Ms. Arens experienced no "hands on" examination by anyone on that date, but she did fill out or provide information for many patient forms, including a genetic screening and infection screening. In Central Florida Women's Care's file, there is an initial physical examination sheet, which is essentially an oral medical history and status provided by Ms. Arens and written down by her or Nurse Kelly. It is not the result of a "hands on" examination, but it may have involved Ms. Arens being weighed. There are notes about plans to bottle- feed her baby; her current medications; her asthma; and her relatives' health issues. There are signed rejections by Ms. Arens of HIV and CF testing. The HIV and CF forms name Central Florida Women"s Care as "a Division of Lakeland OB-GYN, P.A." Ms. Kelly gave her a prescription for prenatal vitamins. Ms. Arens also executed an acknowledgment of receiving a NICA brochure explaining her rights under NICA. The NICA acknowledgment form that Ms. Arens signed, dated, and placed her social security number on at Central Florida Women's Care on January 17, 2005, bore the Central Florida Women's Care letterhead and read: NOTICE TO OBSTETRIC PATIENT RE: NICA PARTICIPATION I have been furnished information by Central Florida Women's Care, prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Drs. Alvarez, Puretz, Damian, Caravello, & Nixon and the midwives associated with their practice: Jill Hendry, Patricia Richey, Joan Bardo, Pam Barany and Sheri Small participate 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 telephone number 1 (800) 398-2120. I further acknowledge that I have received a copy of the brochure prepared by NICA. (Emphasis added). This form also shows Betty Kelly's signature as witnessing Ms. Arens' signature. Both women acknowledged their signatures. Ms. Arens also acknowledged writing in the date and her social security number, but she could not remember if she received a NICA pamphlet that day or not. According to Ms. Arens, although she was a minor, her mother let her sign all her own papers throughout her pregnancy. On January 17, 2005, Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care did not bill until a patient was seen by a nurse midwife or medical physician. Ms. Arens left Central Florida Women's Care without seeing one of those professionals. A few days later, she decided not to return because she had decided she wanted physicians, not midwives, overseeing her prenatal care and delivery. (NICA Exhibit 13, page 9). She did not fail to make a another appointment with Central Florida Women's Care because of an informed choice to select a non-participating physician or because of an informed choice to avoid NICA's limitations. Ms. Arens obtained pre-natal care from late January 2005, until May or June 2005, from Exodus Women's Center, a practice unaffiliated with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. Whether or not members of Exodus were NICA participants does not appear in this record. Ms. Arens testified she left Exodus because she wanted a perinatologist. However, the next and last physician Ms. Arens consulted for prenatal care, Dr. Hamagiri Ravi, testified that she was not a perinatologist, and Ms. Arens' mother testified that she, the mother, had selected Dr. Ravi, because Dr. Ravi accepted Medicaid patients, such as Ms. Arens, and would see Ms. Arens quickly. There is no evidence Ms. Arens left Exodus to avoid NICA's limitations. Approximately three months before Logan's birth, Ms. Arens presented to Dr. Ravi to provide her prenatal care. Dr. Ravi is a non-participating physician. Dr. Ravi does not deliver babies. She also does not have privileges at any hospital or provide NICA brochures or counseling. On the first visit, Dr. Ravi has each of her patients sign a document acknowledging that Dr. Ravi will not be her delivering physician. Ms. Arens signed such a form, which read: To whom it may concern This is to inform you that I am very happy to be taking care of all of your prenatal needs at this office. However, I will not be your delivering physician. At the time of delivery you will go to the hospital of your choice to be delivered by the doctor on call. A copy of your records will be provided to you to preregister at the hospital of your choice. For your C-section needs, alternate measures will be arranged with a different physician. By signing below, you agree with the above conditions of prenatal care. Ms. Arens did not pre-register with any hospital for delivery of her child, who was due on August 30, 2005. On August 30, 2005, her due date, Ms. Arens and her mother went to Dr. Ravi's office. Dr. Ravi documented Ms. Arens' blood pressure as elevated to 140/80. Ms. Arens also was suffering from edema, and tests determined there was protein in her urine elevated to +3. Dr. Ravi contacted the obstetrician on-call at LRMC's emergency room and told him Ms. Arens was coming in. She told Ms. Arens to go straight to the LRMC emergency room for evaluation in a hospital setting and for possible induction of labor. Ms. Arens was stable when she left Dr. Ravi's office, but she expected that her child would be delivered when she got to the hospital. Ms. Arens presented to LRMC's emergency room at approximately 5:00 p.m., on August 30, 2005. She was seen in the emergency room by the physician who had relieved the physician to whom Dr. Ravi had spoken by telephone. When Ms. Arens presented to LRMC’s emergency room on August 30, 2005, she had proteinuria and elevated blood pressure. Vaginal examination revealed slight dilation, slight minimal effacement, and no vaginal bleeding. Her water had not yet broken and her membranes were not ruptured. Ms. Arens was not yet in labor. However, Ms. Arens' blood pressure was measured in LRMC's emergency room as 153/76. Lab work was begun. (Emergency Room records). At approximately 6:30 p.m., on August 30, 2005, Ms. Arens was moved to LRMC's labor and delivery floor for continued evaluation, including urine tests. On the labor and delivery floor, she was immediately seen by LRMC's Patient Access Representative, Kim Lepak. Ms. Lepak's normal routine was to provide each new patient with a packet of information specific to that patient's situation. Part of Ms. Lepak's responsibilities included providing each new obstetric patient with a packet that includes a Privacy Act explanation, a Patient's Rights form, and the NICA brochure. Ms. Lepak was also responsible for obtaining the patient's signature on forms that included assignment of benefits, releases, acceptance of financial responsibility, permission for treatment, and a form acknowledging that the patient had received the explanatory NICA brochure. LRMC's NICA acknowledgement form was signed by both Ms. Arens and Ms. Lepak, and dated August 30, 2005. It reads: RECEIPT ACKNOWLEDGMENT OF FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION INFORMATION (See Section 766.316, Florida Statutes) I have been furnished information by Lakeland Regional Medical Center prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that my doctor and all nurse midwives associated with my doctor's practice participate in the Florida Birth Related Neurological Injury Compensation 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 East Piedmont Drive, Suite 101, Tallahassee, Florida, 32312, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. (Emphasis added) Ms. Lepak testified that the form also bore an LRMC stamp that had been applied in the emergency room, showing Ms. Arens was assigned by LRMC to CNM Joan Bardo on the labor and delivery floor. LRMC required all physicians and CNMs practicing at LRMC to be NICA "participating physicians," and CNMs were assigned by the hospital on 24-hour shifts in 2005. On their shifts, physicians were on-call, usually in the hospital. Dr. Puretz testified that under these conditions he and his practice rely on the hospital to notify patients of the NICA provisions. Ms. Arens and Ms. Lepak did not specifically recall whether Ms. Arens received the NICA brochure, but both identified their signatures on the acknowledgment form. Ms. Lepak testified that, based on her routine procedure, she would have presented the pamphlet to Ms. Arens, watched Ms. Arens sign the acknowledgment, and finally Ms. Lepak would have signed as a witness to Ms. Arens' signature and added her own witness information after Ms. Arens had signed. On the labor and delivery floor, during August 31, 2005, Ms. Arens' blood pressure readings ran mostly in the 130's/80's, and her urine was monitored. Joan Bardo, CNM, was practicing with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. (See Finding of Fact 16). Nurse Bardo was Ms. Arens' "attending physician" upon Ms. Arens' admission to LRMC's labor and delivery floor sometime around 6:30 p.m., August 30, 2005. Ms. Arens did not begin labor on Nurse Bardo's shift, which ended at 8:00 a.m., August 31, 2005, when she was relieved by Sheri Small, CNM. Sheri Small, CNM, relieved Nurse Bardo. Nurse Small was also practicing with Lakeland OB/GYN P.A. d/b/a Central Florida Women's Care. (See Finding of Fact 16). According to Ms. Small's notes on August 31, 2005, Ms. Arens was administered cervidil to induce labor and on September 1, 2005, was administered pitocin to induce labor. Patricia Richey, CNM, also practiced with Lakeland OB/GYN, d/b/a Central Florida Women's Care in 2005. (See Finding of Fact 16). When she came on the floor at 7:00 a.m., on September 1, 2005, she relieved Nurse Small. Nurse Richey was assigned by LRMC to render care to Ms. Arens. At 10:30 a.m., September 1, 2005, Ms. Arens' contractions were noted by Nurse Richey to be frequent but difficult to monitor. During the last part of Nurse Richey's 12-hour shift, Dr. Puretz, also of Lakeland OB/GYN (see Finding of Fact 16), was her supervising physician. He came on-call in the hospital, beginning between 6:30 and 7:00 p.m., on September 1, 2005. At 2:08 a.m., on September 2, 2005, Ms. Arens was completely dilated and pushing began with contractions every two minutes. At 4:35 a.m., September 2, 2005, Nurse Richey called Dr. Puretz to assist with delivery. Fetal heart tones had increased to 170-180 beats per minute. At 4:45 a.m., September 2, 2005, Nurse Richey notified Dr. Puretz of Ms. Arens' progress and requested evaluation for possible vacuum extraction. Care of Ms. Arens was transferred to Dr. Puretz at approximately 5:00 a.m., September 2, 2005. At that time, he documented that Ms. Arens had a 101-degree temperature and her unborn baby was experiencing mild fetal tachycardia. This was the first time Ms. Arens and Dr. Puretz had been in each other's presence. Upon examination, Ms. Arens was fully dilated. There was an arrest of descent. The baby was wedged in her pelvis. At 5:10 a.m., September 2, 2005, Dr. Puretz evaluated Ms. Arens, and elected to do a Caesarian section delivery, believing that vacuum extraction was not prudent. At 5:35 a.m., September 2, 2005, Ms. Arens was moved, under Dr. Puretz' care, to an operating room, and at 6:15 a.m., Logan was delivered. (See Finding of Fact 10).
The Issue The petition (claim) filed on behalf of Petitioners presented the following issues for resolution:1 Whether the claim is compensable under the Florida Birth-Related Neurological Injury Compensable Plan (Plan). Whether the notice provisions of the Plan were satisfied. Whether the exclusiveness of remedy provision of the Plan is an available defense to a nurse midwife or hospital when no civil claim has been made against the participating physician. Whether the amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes (Supp. 1998), which accorded the administrative forum exclusive jurisdiction to resolve whether claims are covered by the Plan, may be applied retroactively.
Findings Of Fact Fundamental findings Petitioners, Maria Ferguson (formerly known as Maria Mish) and Garry Ferguson, are the parents and natural guardians of Casey Ferguson, a minor. Casey was born a live infant on January 28, 1997, at Morton Plant Mease Health Care, Inc., d/b/a Mease Hospital Dunedin (Mease Hospital), a hospital located in Dunedin, Florida, and her birth weight exceeded 2,500 grams. The physician who provided obstetrical services during Casey's birth was Harvey A. Levin, M.D., and he was, at the time, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Services were also provided during the course of birth by Lenore V. McCall, a certified nurse midwife (C.N.M.). At the time, Ms. McCall had not paid the assessment requirement by Section 766.314(4)(c) and (5)(a), Florida Statutes, and was not a "participating physician" in the Plan. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded, and the parties have stipulated, that Casey suffered a "birth-related neurological injury," as defined by the Plan. NICA's conclusion, as well as the parties' stipulation, is grossly consistent with the record. Consequently, since obstetrical services were provided by a participating physician at birth, the claim is compensable, and NICA's proposal to accept the claim is approved.3 Sections 766.309(1) and 766.31(1), Florida Statutes. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the participating physician who delivered obstetrical services at birth (Dr. Levin), as well as the hospital (Mease Hospital), failed to comply with the notice provisions of the Plan.4 Consequently, it is necessary to resolve whether, as alleged by the health care providers, the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth- Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000), and University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001). Pertinent to this issue, it is worthy of note that, at the time of Casey's birth, Section 766.316, Florida Statutes, prescribed the notice requirements, as follows: Notice to obstetrical patients of participation in the plan.--Each hospital with a participating physician on its staff and each participating physician . . . under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof 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. It is further worthy of note that NICA developed a brochure titled "Peace of Mind for An Unexpected Problem" to comply with the statutory mandate, and distributed the brochure to participating physicians and hospitals so they could furnish the brochure (form) to their patients. Turning now to the case at hand, it is observed that Mrs. Ferguson received her prenatal care at A Woman's Place, an office maintained for the practice of obstetrics and gynecology by Harvey A. Levin, M.D., and A. Trent Williams, M.D., at 5347 Main Street, Suite 302, New Port Richey, Florida. Also active in the practice were a number of midwives, including Lenore McCall. Of note, Doctors Levin and Williams delivered exclusively at Mease Hospital Dunedin. Regarding her care, the proof demonstrates that Mrs. Ferguson's initial visit to A Woman's Place occurred on May 30, 1996. As would be expected, Mrs. Ferguson initially presented to the front window (front desk), registered her presence (by writing her name on the pad at the front window), and then took a seat in the waiting room. Shortly thereafter, Mrs. Ferguson was recalled to the front window and given a number of forms (referred to as a packet in this proceeding) to fill out, date, sign, and return before she could be seen by a healthcare provider. Among the documents she completed and returned to the front desk was a form titled Notice to Obstetric Patient,5 which provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by A WOMAN'S PLACE AND/OR MEASE HOSPITAL prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Drs. Levin and Williams are participating physicians 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), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. 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 Number Attest: (Nurse or Physician) Date: Here, Mrs. Ferguson acknowledges receipt of the Notice to Obstetric Patient, and therefore notice that Doctors Levin and Williams were participants in the Plan, but denies receipt of the brochure prepared by NICA. Notably, it is that brochure, titled Peace of Mind for An Unexpected Problem, which contains the "clear and concise explanation of a patient's rights and limitations under the [P]lan" required by the notice provisions of Section 766.316, Florida Statutes.6 In response to Mrs. Ferguson's denial, and to buttress its argument that Mrs. Ferguson received the brochure, Mease Hospital offered proof regarding the customary practice employed by A Woman's Place for all new patients. According to Joanie Perkins, the OB coordinator, all new patients were routinely handed a number of forms (the packet) to fill out on their first visit, including the Notice to Obstetric Patient, with a copy of the NICA brochure attached. The packets were prepared by Ms. Perkins once or twice a month in quantities of 20 or 30, and stored at her desk until needed. Then, the day preceding a new patient's first visit, she would place a packet inside the new patient's file (also referred to as a chart) and give the file to the front desk clerk. On arrival, the front desk clerk would hand the packet (on a clipboard) to the new patient. When returned to the clerk, the forms were then given back to Ms. Perkins, who would put them in the patient's chart. Following completion of the forms, a new patient was routinely seen by Ms. Perkins, who entered certain basic information on the patient's antepartum record (such as, the date of the first visit; the patient's name, address, date of birth, and insurance carrier; the hospital where delivery was to occur; and height and weight). It was also during this period that Ms. Perkins routinely distributed to the new patient what was referred to as the OB packet. That packet included a folder from Mease Hospital (also referred to by the hospital as their baby book), which contained information about the hospital and other materials, including pre-registration papers. The OB packet also included a prenatal care booklet, as well as education materials pertaining to Lamaze and exercise classes, and information pertaining to anesthesia. Samples of pre-natal vitamins, coupons for diaper bags, and other miscellaneous materials were also included in the OB packet. Following her meeting with Ms. Perkins, the new patient was then referred to a physician or nurse midwife to complete her initial visit. Contrasted with the conclusion one would draw from her acknowledgment execution of the Notice to Obstetric Patient and the customary practice of A Woman's Place, Mrs. Ferguson testified that not only was the NICA brochure not attached to the notice she signed, but the only items she received that day were a book titled Child Birth Planner and some prenatal vitamins. The reasons for Mrs. Ferguson's statements are two-fold. First, according to Mrs. Ferguson, she recalls that one of the forms referred to an attachment or additional document that was not included, and that when she brought this oversight to the attention of the front desk clerk she was unable to locate one. Of note, the only form Mrs. Ferguson signed that day that referred to another document she should have received was the Notice to Obstetric Patient. Second, Mrs. Ferguson observed that she is compulsive regarding the retention of documents, and that with regard to her pregnancy with Casey she retained every document she received from, inter alia, A Woman's Place and Mease Hospital. Those documents, which Mrs. Ferguson identified as Petitioners' Exhibit 5A-5Y at hearing, did not include a NICA brochure or a Mease Hospital baby book, but did include two pages of education materials pertaining to Lamaze and exercise classes, and information pertaining to anesthesia, all of which were customarily included in the new patient OB packet. Also included was a booklet Mrs. Ferguson received when she participated in a tour of the Mease Hospital Maternity Center. Of note, the availability of Maternity Center tours was a topic addressed in the hospital's baby book. Here, giving due consideration to the proof, it must be resolved that, more likely than not, Mrs. Ferguson received the NICA brochure on her initial visit, as evidenced by her signature on the Notice to Obstetric Patient and as one would anticipate from the customary practice of A Woman's Place. It is further resolved that, more likely than not, Mrs. Ferguson received the OB packet on her initial visit, which included a Mease Hospital baby book. In concluding that Mrs. Ferguson did receive a copy of the NICA brochure on her initial visit, the testimony of Mrs. Ferguson to the contrary, has clearly not been overlooked. However, Mrs. Ferguson's testimony, both in deposition and at hearing, demonstrates that she had very little recall of the events which took place during her initial visit. Moreover, while Mrs. Ferguson suggests that the front desk clerk could not locate a NICA brochure, the compelling proof reflects that the brochures were readily available and that staff was aware they could be obtained at Ms. Perkins' desk. In concluding that Mrs. Ferguson also received the OB packet on her initial visit, the testimony of Mrs. Ferguson to the contrary has also not been overlooked. However, for reasons similar to those noted with regard to the NICA brochure, Mrs. Ferguson's testimony has been found unpersuasive. While Mrs. Ferguson received notice on behalf of the participating physician, the proof failed to demonstrate that Mease Hospital provided any pre-delivery notice, as envisioned by Section 766.316, Florida Statutes. Moreover, there was no proof offered to support a conclusion that the hospital's failure to accord Mrs. Ferguson pre-delivery notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. In reaching such conclusion, the inclusion of the hospital's name in the Notice to Obstetric Patient provided by A Woman's Place to Mrs. Ferguson has not been overlooked. However, the reason the hospital's name was included on the form stands unexplained, and there is no proof that A Woman's Place was requested or authorized to provide notice on behalf of the hospital. Indeed, for all that appears of record, the inclusion of the hospital's name was gratuitous, and can hardly be deemed to satisfy the hospital's independent obligation under Section 766.316, to provide notice to Mrs. Ferguson.7 Finally, in concluding that the hospital did not provide pre-delivery notice as envisioned by the Plan, the testimony offered by the hospital (through the deposition of Rosemary Atkinson, Intervenor's Exhibit 1), wherein she testified that the hospital routinely included a copy of the NICA brochure in its baby book, has likewise not been overlooked. However, given the absence of proof regarding the manner in which the hospital's baby books were assembled, the method employed to distribute them to physicians, and the manner in which the books were safeguarded at the physician's office prior to distribution, such proof is inadequate to allow a conclusion to be drawn with any sense of confidence that a baby book given to a patient, such as Mrs. Ferguson, contained a NICA brochure. Moreover, even if it could be demonstrated that the baby book contained a copy of the NICA brochure (commingled with other papers) when it was given to Mrs. Ferguson, the absence of any statement or explanation to draw her attention to the brochure, or its significance, could hardly be considered notice as that word is commonly understood and as that word is used in the Plan.
The Issue Whether Hunter Lewis, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Angel Lewis and Jerry Lewis, are the parents and natural guardians of Hunter Lewis, a minor. Hunter was born a live infant on June 2, 2000, at Tallahassee Memorial Hospital, a hospital located in Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Hunter's birth was Arthur S. Clements, 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.1 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. The cause and timing, as well as the significance of Hunter's neurologic impairment To address the cause and timing of Hunter's neurologic impairment, as well as its significance, Petitioners offered selected medical records relating to Hunter's birth and subsequent development (Petitioners' Exhibit 1); the Verified Medical Opinion of Richard J. Inwood, M.D., a neonatologist (Petitioners' Exhibit 2); and the deposition of Donald C. Willis, M.D., an obstetrician (Petitioners' Exhibit 3). In turn, Respondent offered the deposition of Paul R. Carney, M.D., a pediatric neurologist (Respondent's Exhibit 1). As for the significance of Hunter's impairments, it was Dr. Carney's opinion, based on the results of his neurologic evaluation of November 21, 2002, that Hunter's assessment "indicates substantial cognitive and language impairment," but "very mild long tract neurological findings." Dr. Carney described Hunter's developmental delay as static, as opposed to progressive, and he ventured no opinion as to the cause or timing of Hunter's impairments. As for Dr. Inwood, he was of the opinion that: . . . Hunter Lewis [ ] was delivered by induced labor prior to 38 weeks and had immature lungs. Because of the immaturity of the lungs he suffered hypoxic insult and, to a reasonable degree of medical probability, sustained significant neurological injury. This injury would not have occurred had his delivery been delayed until he had demonstrated lung maturity. His problems are not congenital and did not occur during labor or delivery, but rather after delivery . . . . Notably, Dr. Inwood did not further address Hunter's neurologic injury or, stated otherwise, did not speak to whether in his opinion, Hunter suffered both cognitive and motor impairment and, if so, the significance of each. As for Dr. Willis, he was of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with labor, delivery, or resuscitation immediately following Hunter's birth. Significantly, the medical records are consistent with the opinions of Doctors Inwood and Willis that the cause and timing of Hunter's impairment was not associated with labor, delivery, or resuscitation, and with the opinion of Dr. Carney that, while Hunter may demonstrate substantial cognitive delay, his motor impairment is mild. Given the record, it must be concluded that the proof demonstrated, more likely than not, that Hunter's impairments were not occasioned by an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, and that he is not permanently and substantially physically impaired.
Findings Of Fact Based on the stipulation of the parties, the following facts are found: Ameni Selmi and Mondher Tahar Ghali are the parents and legal guardians of Oubey, and are the “Claimants” as defined by section 766.302(3). Oubey incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about January 25, 2018, which was the sole and proximate cause of Oubey’s medical condition. Oubey died during the pendency of this action on June 24, 2020. At birth, Oubey weighed 3,770 grams. Shereen Oloufa, M.D., rendered obstetrical services in the delivery of Oubey and, at all times material to this action, was a “participating physician” as defined in section 766.302(7). Orlando Health Central is a hospital located in Ocoee, Florida, and is the “hospital,” as that term is defined in section 766.302(6), where Oubey was born. Petitioners filed a Petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
