The Issue At issue is whether Christopher Kocher, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Findings related to the parental award and past expenses At hearing, the parties stipulated that there were no monies owing for past expenses, as they had been paid by collateral sources (private insurance). Section 766.31(1)(a). The parties further agreed that Petitioners, as the parents of Christopher Kocher, a deceased minor, be accorded a lump sum award of $100,000.00, as well as an award of $1,500.00 for funeral expenses. Section 766.31(1)(b). Findings related to attorney's fees and costs incurred in connection with the filing of the claim To support their claim for attorney's fees, Petitioners offered what was titled "Ferraro & Associates, P.A.'s Time Sheet." (Petitioners' Composite Exhibit 1, "Ferraro & Associates, P.A.'s Time Sheet"). As explained by Plaintiffs' counsel, at hearing MR. JOHNSTON: And these were -- these are the hours that were reconstructed. Our firm doesn't normally keep time records. We're a plaintiffs firm. But Mr. Falzone did go through and estimated the time that was spent on the NICA related matters and put them in this time sheet . . . . The time sheet reflected 17 hours dedicated to the case by Mr. Falzone, for which Petitioners requested an hourly rate of $500 (a total of $8,500.00), and 109.25 hours dedicated to the case by "different associates," for which Petitioners requested an hourly rate of $250.00 (a total of $27,312.50), for a total award of $35,812.50. Notably, such time sheet is hearsay, and was received into evidence subject to the limitations of Section 120.57(1)(c). ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Consequently, since no witnesses were called or competent evidence offered detailing the services rendered or the prevailing hourly rate charged in the community by lawyers of reasonably comparable skill, experience and reputation, for similar services, there is no competent proof to support an award of attorney's fees. Mercy Hospital, Inc. v. Johnson, 431 So. 2d 687, 688 (Fla. 3d DCA 1983)("[Attorney's] failure to present detailed evidence of his services is fatal to his claim."); Yakubik v. Board of County Commissioner's of Lee County, 656 So. 2d 591 (Fla. 2d DCA 1995)("The testimony of an expert witness concerning reasonable attorney's fees is necessary to support the establishment of the fees.") Nevertheless, at hearing, Respondent agreed that it would accept 37.25 hours (the hours ostensibly expended from November 7, 2000, through April 28, 2001), as reasonably expended in pursuing the claim, and $175.00 as a reasonable hourly rate, for a total fee award of $6,518.75. Here, given that the claim was routine, and lacked any novel aspect that would warrant the time claimed by Petitioners' counsel, Respondent's concession is reasonable. Consequently, given that Petitioners' counsel obviously expended some time pursuing the claim, and there is no competent proof to otherwise support an award of attorney's fees, an award of $6,518.75 is appropriate. Finally, Petitioners seek to recover certain expenses they claim were reasonably incurred in connection with pursuing the claim for compensation. Such costs total $4,139.30. (Petitioners' Composite Exhibit 1, "Case Expense Report," page 3). Respondent does not object to the costs reflected on counsel's "Case Expense Report," page 3, commencing with the entry of November 7, 2000 ($15.00), and extending through the entry of March 20, 2001 ($15.50), totaling $1,036.02. Accordingly, those costs are awarded, without further discussion. As for the balance of expenses claimed, and opposed by Respondent, the record is devoid of proof to support their recovery. Notably, as with their claim for attorney's fees, Petitioners offered neither testimony nor competent evidence detailing the nature of the expenses claimed. Consequently, it would be pure speculation to conclude such expenditures constitute costs that are traditionally taxable, that they were reasonable in amount, or that they were necessarily incurred in pursuing the claim for compensation. Consequently, such expenses are not recoverable.
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 Isabelle Dianderas, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Maribenny Dianderas and Arturo Dianderas are the natural parents and guardians of Isabelle Dianderas, a minor. Isabelle was born a live infant on October 8, 2002, at Florida Hospital, a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Isabelle's birth was Natasha M. Knight, 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. 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(1) and 766.31(1), Fla. Stat. Here, the proof is compelling, and uncontroverted, that Isabelle suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered her permanently and substantially mentally and physically impaired. (Joint Exhibits 1-4; Transcript, pages 125-145). Consequently, the record demonstrated that Isabelle suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The notice issue While the claim qualifies for coverage under the Plan, Petitioners would prefer to pursue their civil remedies, and avoid a claim of Plan immunity by the healthcare providers in a civil action. Therefore, Petitioners have averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at Isabelle's birth, failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth- Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.") Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied.1 The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes, 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, defines "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[2] 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 participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Joint Exhibit 5). Pertinent to this case, the NICA brochure applicable to Mrs. Dianderas' prenatal care and Isabelle's birth provided: The birth of a baby is an exciting and happy time. You have every reason to expect that the birth will be normal and that both mother and child will go home healthy and happy. Unfortunately, despite the skill and dedication of doctors and hospitals, complications during birth sometimes occur. Perhaps the worst complication is one which results in damage to the newborn's nervous system - called a "neurological injury." Such an injury may be catastrophic, physically, financially and emotionally. In an effort to deal with this serious problem, the Florida Legislature, in 1988, passed a law which created a Plan that offers an alternative to lengthy malpractice litigation processes brought about when a child suffers a qualifying neurological injury at birth. The law created the Florida Birth-Related Neurological Injury Compensation Association (NICA). EXCLUSIVE REMEDY The law provides that awards under the Plan are exclusive. This means that if an injury is covered by the Plan, the child and its family are not entitled to compensation through malpractice lawsuits. CRITERIA AND COVERAGE Birth-related neurological injuries have been defined as an injury to the spinal cord or brain of a live-born infant weighing at least 2500 grams at birth. In the case of multiple gestation, the live birth weight is 2000 grams for each infant. The injury must have been caused by oxygen deprivation or mechanical injury, which occurred in the course of labor, delivery or resuscitation in the immediate post delivery period in a hospital. Only hospital births are covered. The injury must have rendered the infant permanently and substantially mentally and physically impaired. The legislation does not apply to genetic or congenital abnormalities. Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan. COMPENSATION Compensation may be provided for the following: Actual expenses for necessary and reasonable care, services, drugs, equipment, facilities and travel, excluding expenses that can be compensated by state or federal government or by private insurers. In addition, an award, not to exceed $100,000 to the infant's parents or guardians. Funeral expenses are authorized up to $1,500. Reasonable expenses for filing the claim, including attorney's fees. NICA is one of only two (2) such programs in the nation, and is devoted to managing a fund that provides compensation to parents whose child may suffer a qualifying birth-related neurological injury. The Plan takes the "No-Fault" approach for all parties involved. This means that no costly litigation is required and the parents of a child qualifying under the law who file a claim with the Division of Administrative Hearings may have all actual expenses for medical and hospital care paid by the Plan. You are eligible for this protection if your doctor is a participating physician in the NICA Plan. If your doctor is a participating physician, that means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA Plan. (Joint Exhibit 5). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provision of the Plan (which requires that the form "include a clear and concise explanation of a patient's rights and limitations under the plan"), because it failed to include an explanation of the civil remedies a patient would forego if she chose a participating provider. (Transcript, pages 11-13). However, neither Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997), the authority relied upon by Petitioners, nor the notice provision of the Plan, place such an obligation on NICA in the formulation of the brochure. In Galen, supra, the Court had for consideration the following question certified to be of great public importance: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS' INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? Id. at 308. In answer to the certified question, the Court held: . . . as 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. Id. at 309. The Court reasoned, as follows: Section 766.316 provides in pertinent part: 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. Without exception the district courts of appeal that have addressed the issue have read section 766.316 to require pre-delivery notice . . . . We agree with the district courts that the only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in the plan. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the "no-fault alternative for birth-related neurological injuries" a reasonable time prior to delivery, when practicable. Our construction of the statute is supported by its legislative history. Florida's Birth-Related Neurological Injury Compensation Plan was proposed by the 1987 Academic Task Force for Review of the Insurance and Tort Systems. In its November 6, 1987 report, the Task Force recommended adoption of a no-fault compensation plan for birth-related neurological injuries similar to the then newly enacted Virginia plan (1987 Va. Acts Ch. 540). Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations 31 (Nov. 6, 1987)(hereinafter Task Force Report). However, the Task Force was concerned that the Virginia legislation did not contain a notice requirement and recommended that the Florida plan contain such a requirement. The Task Force believed that notice was necessary to ensure that the plan was fair to obstetrical patients1 and to shield the plan from constitutional challenge.2 The Task Force explained in its report: The Virginia statute does not require participating physicians and hospitals to give notice to obstetrical patients that they are participating in the limited no- fault alternative for birth-related neurological injuries. The Task Force recommends that health care providers who participate under this plan should be required to provide reasonable notice to patients of their participation. This notice requirement is justified on fairness grounds and arguably may be required in order to assure that the limited no fault alternative is constitutional. Task Force Report at 34 (emphasis added). Since Florida's NICA plan was the result of the Task Force's report, it is only logical to conclude that the plan's notice requirement was included in the Florida legislation as a result of this recommendation and therefore was intended to be a condition precedent to immunity under the plan. * * * Under our reading of the statute, in order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely manner. In those cases where it is not practicable to notify the patient prior to delivery, pre- delivery notice will not be required. Whether a health care provider was in a position to give a patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis . . . . Accordingly, we answer the certified question as explained herein and approve the decision under review. Id. at 309-311. 1 The Task Force obviously believed that because not all health care providers are required to participate in the NICA plan, fairness requires that the patient be made aware that she has limited her common law remedies by choosing a participating provider. 2 The Task Force also must have recognized that failure to require notice would open the plan up to constitutional attack. For example, the Braniffs argue that if pre- delivery notice is not a condition precedent to immunity under the plan, patients will be deprived of their common law remedies without due process. However, because of our resolution of the notice issue, we need not reach the merit of this procedural due process challenge. Notably, the Court was not asked to resolve, and did not resolve, whether the obligation to provide a form that "include[d] a clear and concise explanation of a patient's rights and limitations under the plan," required an explanation of the civil remedies a patient would forego if she chose a participating provider. Moreover, the unambiguous language the Legislature chose evidences no such intention. Rather, the Plan requires that the form "include a clear ['[f]ree from doubt or confusion']3 and concise ['[e]xpressing much in few words; succinct']4 explanation ['the process of making plain or comprehensible']5 of the patients' rights and limitations under the plan," and does not include an obligation to explain a patient's potential civil remedies at common law or otherwise. Rinella v. Abifaraj, 908 So. 2d 1126, 1127 (Fla. 1st DCA 2005)("Where the plain and ordinary meaning of statutory language is unambiguous, we cannot construe the statute in a manner that would extend, modify, or limit its express terms or its reasonable and obvious implications."); Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001)(quoting Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999))("[I]t is a basic principle of statutory construction that Courts 'are not at liberty to add words to statutes that are not placed there by the Legislature.'"); Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002)("When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words."); American Bankers Life Assurance Company of Florida v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)("Words of common usage should be construed in their plain and ordinary sense."). The brochure prepared by NICA satisfies the legislative mandate. Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 31 Fla. L. Weekly D8676 (Fla. 5th DCA March 24, 2006)("The ALJ properly recognized that NICA developed a pamphlet titled 'Peace of Mind for an Unexpected Problem.' The pamphlet contains a clear and concise explanation of a patient's rights and limitations under the NICA plan, as is required by the terms of the statute.")(petition for rehearing pending). Findings related to the participating physician and notice Mrs. Dianderas received her prenatal care at Loch Haven OB/GYN Group, Orlando, Florida, a group practice comprised of a number of physicians, including Natasha M. Knight, M.D., and dedicated to the practice of obstetrics and gynecology. At the time, Loch Haven, like Florida Hospital, was owned by Adventist Health System/Sunbelt, Inc.; however, patients, including Mrs. Dianderas, were not noticed, by signage or otherwise, of the relationship the business entities shared. On February 14, 2002, Mrs. Dianderas presented to Loch Haven for her initial visit. At the time, consistent with established practice for new obstetric patients, Mrs. Dianderas was given a copy of the NICA brochure, together with a Notice to Obstetric Patient (to acknowledge receipt of the NICA brochure). The Notice to Obstetric Patient provided, as follows: Notice to Obstetric Patient I have been furnished with information by the Loch Haven OB/GYN as prepared by the Florida Birth-Related Neurological Injury Compensation Association and have been advised that the physicians of the Loch Haven OB/GYN Group are participating members in the Florida Birth-Related Neurological Injury Compensation Association. This Plan provides that certain limited compensation is available in event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth-Related Neurological Injury Compensation association (NICA), Post office Box 14567, Tallahassee, Florida 32317-04567, (904) 488-8191 or 1- 800-3982129: I further acknowledge that I have received a copy of the form brochure prepared and furnished by the Florida Birth- Related Neurological Injury Compensation Association. Patient Signature Date Print Name Social Security Number D.O.B. Witness Date Mrs. Dianderas completed the form, by providing the requested information (name, social security number, and date of birth), and then signed and dated the form. Beverly Bailey, the medical assistant who saw Mrs. Dianderas on her initial visit, witnessed her signature. Here, Mrs. Dianderas acknowledges 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. (Transcript, pages 39-41 and 54-58). Moreover, Petitioners candidly concede, they can offer no proof to rebut the presumption that the notice provisions were met by the participating physician. (Transcript, pages 9, 55, 56, and 278). Consequently, since the NICA brochure complied with the requirements of Section 766.316, Florida Statutes, the participating physician satisfied the notice provisions of the Plan. However, notwithstanding the common ownership of Loch Haven and Florida Hospital by Adventist, they were separate business entities, and the notice by Loch Haven (on behalf of its physicians) did not satisfy Florida Hospital's 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 alternative for birth-related neurological injuries."); Board of Regents v. Athey, 694 So. 2d 46, 49 (Fla. 1st DCA 1997)("Under section 766.316 . . . notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery " Conversely, it reasonably follows, notice on behalf of the participating physician will not by itself satisfy the notice requirement imposed on the hospital.) Findings related to the hospital and notice To support an inference that it complied with the notice provisions of the Plan, the hospital offered proof of the practice it followed to provide a copy of the NICA brochure and Notice to Obstetric Patient form (acknowledgment form)6 to each patient who presented to labor and delivery.7 See Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). Here, Mrs. Dianderas presented to the labor and delivery on two occasions (September 29, 2002, and October 7, 2002), during which the hospital had an opportunity to provide notice, and during which the hospital claims it provided notice.8 With regard to Mrs. Dianderas' first admission, the proof demonstrates that at or about 7:25 p.m., Sunday, September 29, 2002, Mrs. Dianderas, with an estimated delivery date of October 14, 2002, and the fetus at 37+ weeks' gestation, presented to labor and delivery, at Florida Hospital, with complaints of contractions. At the time, the finance window was closed, as it had been since 11:00 p.m., Friday, and would be until 6:00 a.m., Monday, and Mrs. Dianderas was admitted to the triage unit by Cynthia Hall, R.N., the on-duty triage nurse. Notably, Nurse Hall, who was responsible for completing all paperwork associated with Mrs. Dianderas' admission, attended Mrs. Dianderas from 7:25 p.m., until her discharge (after it was resolved Mrs. Dianderas was not in labor) at 12:19 a.m., September 30, 2002, except for a brief period (between 9:17 p.m., and 10:20 p.m.) when Mrs. Dianderas was taken for an ultrasound. With regard to notice, Nurse Hall, who routinely works weekends, testified that it was her practice, during her initial evaluation in triage, to provide the patient a copy of the NICA brochure, as well as an acknowledgment form and Consent to Treatment form to complete and sign. According to Nurse Hall, the forms were routinely signed in her presence, were routinely witnessed by her, and she routinely made a photocopy of the acknowledgment form and placed it on the finance clerk's desk (that was adjacent to her desk), so finance could update their computer records on Monday to reflect that the NICA brochure had been given. The original documents, including the original acknowledgment form, were placed in the patient's chart. Here, Nurse Hall is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Nurse Hall. However, the chart does not include a signed acknowledgment form, as it should if Nurse Hall followed her routine practice, and she could offer no explanation for its absence. Also inexplicably, the finance records related to this visit (Intervenors' Exhibit 1A, pages 1 and 2), reveal that at 8:48 p.m. (20:48), September 29, 2002, a finance clerk identified as "RLCEE8" updated Mrs. Dianderas' record to reflect that a copy of the NICA brochure had been provided. Notably, according to Nurse Hall, who was in a position to know, the finance office (in which she would have placed a copy of the acknowledgment form) was not staffed at the time, and she could not explain those entries (which she did not and was not authorized to make). Moreover, at hearing, the hospital made no effort to identify "RLCEE8" or to otherwise explain how these entries occurred. Consequently, given such irregularities it cannot be inferred, with any sense of confidence, that the hospital or Nurse Hall's routine was followed during Mrs. Dianderas' September 29, 2002, admission, or that she was provided a copy of the NICA brochure. With regard to Mrs. Dianderas' second admission, which ultimately led to Isabelle's birth, the proof demonstrates that at 2:00 p.m., October 7, 2002, Mrs. Dianderas, with the fetus at 39 weeks' gestation, presented to labor and delivery, at Florida Hospital, on referral from her obstetrician for a nonstress test (NST), secondary to decreased fetal movement. At the time, the finance window was open, and Iris Miranda, a financial services representative was on duty. With regard to notice, Ms. Miranda testified (by publication of her deposition) regarding the routine she would have followed when Mrs. Dianderas presented to the finance window that afternoon. According to Ms. Miranda, that routine would have included giving Mrs. Dianderas a Consent for Treatment form to sign, as well as a copy of the NICA brochure and an acknowledgment form to sign and give to the nurse in labor and delivery. Here, Ms. Miranda is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Ms. Miranda. Moreover, the finance department's records (Intervenors' Exhibit 1B, pages 1 and 2) include a computer entry at 2:03 p.m. (14:03), October 7, 2002, by Ms. Miranda (identified as "IVM76B") noting that a NICA brochure was provided. However, again the chart does not include a signed acknowledgment form, as it should if the hospital's routine was followed, and no compelling explanation for its absences was presented.9 Consequently, given the lack of a reasonable explanation for the irregularities that have been shown regarding the finance department's computer entries, as well as the absence of the acknowledgment form, it cannot be inferred with any sense of confidence that the hospital's routine was followed during Mrs. Dianderas' admission of October 7, 2002, or that Mrs. Dianderas was given a NICA brochure Finally, with regard to the hospital and the notice issue, it is noted that on presentation to Florida Hospital at 2:00 p.m., October 7, 2002, Mrs. Dianderas was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after her membranes were ruptured, at 4:55 p.m. More particularly, there was no "evidence of the onset and persistence of uterine contractions or rupture of the membranes" from 2:00 p.m., until 4:55 p.m., October 7, 2002. Moreover, there was no proof that, upon admission or until her membranes ruptured, "there [was] inadequate time to effect safe transfer to another hospital prior to delivery" or "[t]hat a transfer may pose a threat to the health and safety of the patient or fetus." Consequently, until 4:55 p.m., when her membranes were ruptured, Mrs. Dianderas did not have an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, that would have excused the giving of notice. Moreover, there was no proof to support a conclusion that the giving of notice was not practicable. Jurisdiction
The Issue At issue is whether interest should be assessed on an award of attorney's fees and costs under the Florida Birth-Related Neurological Injury Compensation Plan.
The Issue Whether Jacqueline Simone Jackson (Jacqueline), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' settlement of a civil suit against the hospital where Jacqueline was born for negligence associated with her birth bars them from recovery of an award under the Plan. Whether the participating physicians complied with the notice provisions of the Plan.
Findings Of Fact Findings related to compensability Tracie Turner Jackson and Ulysses Bernard Jackson are the natural parents and guardians of Jacqueline Simone Jackson, a minor. Jacqueline was born a live infant on December 8, 1999, at Orlando Regional Healthcare System, d/b/a Arnold Palmer Hospital for Women and Children (Arnold Palmer Hospital), a licensed hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Jacqueline's birth were Alejandro J. Pena, M.D., and Marc W. Bischof, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Jacqueline suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. The settlement with Arnold Palmer Hospital In 2002, Tracie Turner Jackson and Ulysses Bernard Jackson, individually and as parents and natural guardians of their minor daughter, Jacqueline Simone Jackson, Plaintiffs, filed a medical malpractice claim arising out of the birth of Jacqueline against Orlando Regional Health Care System, Inc., d/b/a Arnold Palmer Hospital for Women and Children; Alejandro J. Pena, M.D.; Marc W. Bischof, M.D.; Physician Associates of Florida, Inc.; T. Zinkil, R.N.; S. Furgus, R.N.; Nancy Ruiz, R.N.; L. Baker, R.N.; T. Flyn, R.N.; and Nancy Ostrum, R.N., Defendants, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, Case No. 2002-CA-6770 Div. 34. A settlement was reached with Arnold Palmer Hospital, but the case against Dr. Pena, Dr. Bischof, and Physician Associates of Florida, Inc., remained pending.3 Given Petitioners' settlement with Arnold Palmer Hospital, and the provisions of Section 766.304, Florida Statutes (1999)4("An action may not be brought under ss. 766.301- 766.316 if the claimant recovers or final judgment is entered."), Petitioners and Respondent stipulated that "Petitioners are not entitled to any actual payment or award from NICA, even if a finding is made that the claim is compensable and adequate notice was given." (Petitioners' letter of November 18, 2004, filed November 19, 2004, and Respondent's letter of November 16, 2004, filed November 16, 2004.) The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the physicians' claim of Plan immunity by averring that the participating physicians who delivered obstetrical services at Jacqueline's birth (Doctors Pena and Bischof) failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether either participating physician gave the required notice. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (See, e.g., Petitioners' Exhibit 2, the NICA brochure, "This brochure is prepared in accordance with the mandate of [Section] 766.316, Florida Statutes.") Findings related to the participating physicians and notice Mrs. Jackson received her prenatal care at the Longwood Center, one of 7 offices in the Orlando area operated by Physician Associates of Florida (PAF), a group practice comprised of 35 physicians, including 16 obstetrician- gynecologists. (See, e.g., Intervenors' Exhibits 1, 2, 4, and 6.) At the time, four obstetricians staffed the OB-GYN department at the Longwood Office, Dr. Marc Bischof, who provided obstetrical services during Jacqueline's birth; Dr. Robert Bowels; Dr. Peter Perry; and Dr. Jose Lopez-Cintron. However, as a group practice, all obstetricians rotated delivery calls at the hospital, so it was possible, as occurred in this case with Dr. Pena, that a doctor from a different office would participate in the delivery. Notably, all obstetricians associated with PAF were participating physicians in the Plan. On April 12, 1999, Mrs. Jackson presented to the Longwood Center for her initial visit. At the time, consistent with established routine, the receptionist provided Mrs. Jackson with a packet of information that included a number of forms for her to complete and sign, including: a Patient Information form; a Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form; a Triple Test Form (a screening test for Down's Syndrome); a Prenatal Diagnosis Screening Questionnaire; and a Notice to Obstetrical Patient (to acknowledge receipt of the NICA brochure that was, indisputably, included in the packet). The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by Physician Associates of Florida prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that [5] is a participating physician in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), 1435 Piedmont Drive East, Suite 101, Tallahassee, Florida 32312 1-800-398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 199 . Signature (NAME OF PATIENT) Social Security No.: Attest: (Nurse or Physician) Date: Mrs. Jackson completed each of the forms, including the Notice to Obstetric Patient, by providing the requested information, and then signing and dating the forms. (Petitioners' Exhibit 1). Here, there is no dispute that Mrs. Jackson signed the Notice to Obstetric Patient or that she received a copy of the NICA brochure on her initial visit. There is likewise no dispute that, given the blank space, the notice form was inadequate to provide notice that Dr. Bischof, Dr. Pena, or any obstetrician associated with PAF was a participating physician in the Plan. Rather, what is disputed is whether, as contended by Intervenors, Mrs. Jackson was told during her initial visit that all obstetricians in PAF were participants in the Plan.6 Regarding Mrs. Jackson's initial visit, the proof demonstrates that, following completion of the paperwork, Mrs. Jackson was seen by Nurse Posey for her initial interview. Typically, such visits lasted approximately 45 minutes, with 30 minutes spent reviewing the patient's history, as well as the paperwork she received in the packet, and 15 minutes spent on a physical examination. According to Nurse Posey, she conducted a minimum of two initial prenatal interviews daily, five days a week, and followed the same procedure during each interview. As described by Nurse Posey, during the initial interview she always discussed each form (the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form, and the Notice to Obstetric Patient) individually, and when the form had been discussed she would co-sign the form. (Transcript, pp. 65- 68) Moreover, as for the NICA program, Nurse Posey always confirmed that the patient had received the NICA brochure, and told the patient that PAF's obstetrical service was "a group practice; that anyone in the group could do the delivery; and that each member of the group was a participant in the NICA program." (Transcript, pp. 68-70) Finally, Nurse Posey documented her routine through an entry on the prenatal flow sheet (Intervenors' Exhibit 6), which noted she had provided the patient information on the various tests, as well as the NICA brochure and notification. Here, that entry read: "Pt given info on diet, exercise, HIV screening, triple test, NICA pamphlet & notification & cord blood storage." (Petitioners' Exhibit 1, Intervenors' Exhibit 6, and Transcript, pp. 70-78.) In this case, Nurse Posey was confident she had followed her routine, since she would not have co-signed the various documents, such as the Notice to Obstetric Patient, or made the entry on the prenatal flow sheet unless she had done so. In response to the evidence offered by Intervenors on the notice issue, Mrs. Jackson testified there was never a discussion of the NICA program, and she was never told the physicians associated with PAF's obstetrical program were participating physicians in the Plan. However, Mrs. Jackson acknowledged that Nurse Posey questioned her regarding her medical history, and that she explained the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, and the HIV form. (Transcript, pp. 141-145) As for the Notice to Obstetric Patient, Mrs. Jackson initially denied having read it; then testified she may have read it "briefly," but "didn't go into details" or "seek out specifics"; and finally stated she could not remember reading the form, but could not deny that she may have read it. (Transcript, pp. 150, 151, 156-159) Here, giving due consideration to the proof, it must be resolved that the more persuasive proof supports the conclusion that, more likely than not, Nurse Posey, consistent with her routine, discussed the NICA program with Mrs. Jackson on her initial visit, and informed Mrs. Jackson that the physicians associated with PAF's obstetrical program were participating physicians in the Plan. In so concluding, it is noted that, but for the NICA program, Mrs. Jackson acknowledged Nurse Posey otherwise followed her routine; that it is unlikely, given such consistency, Nurse Posey would not have also discussed the NICA program; that Nurse Posey, as was her routine, co-signed each of the forms she discussed with Mrs. Jackson, including the Notice to Obstetric Patient; that Nurse Posey, as was her routine, documented her activity on the prenatal flow sheet; and that Mrs. Jackson evidenced little recall of the documents she signed or the discussions she had with Nurse Posey. Finally, Nurse Posey's testimony was logical, consistent, and credible, whereas Mrs. Jackson's testimony was often equivocal. Jurisdiction
