The Issue At issue is whether Samer Abifaraj, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the notice requirements of the Plan were satisfied. If so, whether the Division of Administrative Hearings has the exclusive jurisdiction to resolve or, alternatively, must preliminarily resolve, whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan benefits and pursue a civil suit.
Findings Of Fact Fundamental findings Petitioners, Bassam Abifaraj and Rayya Abifaraj, are the parents and natural guardians of Samer Abifaraj (Samer), a deceased minor, and co-personal representatives of their deceased son's estate. Samer was born October 30, 1997, at Plantation General Hospital, a hospital located in Broward County, Florida, and died December 4, 1997. At birth, Samer's weight exceeded 2,500 grams. The physician providing obstetrical services at Samer's birth was John L. Rinella, M.D., who was at all times material hereto a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . 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 agree, that Samer suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA proposes to accept the claim as compensable under the Plan. NICA's conclusion is consistent with the proof, and its proposal to accept the claim as compensable is approved. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the hospital and participating physician failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the health care providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000). Regarding the notice issue, it is resolved that on June 3, 1997, Mrs. Abifaraj was provided timely notice that Dr. Rinella was a participating physician in the Plan, together with notice as to the limited no-fault alternative for birth- related neurological injuries provided by the Plan. Such conclusion is based on the more credible proof which demonstrates that on such date, when Mrs. Abifaraj presented to Dr. Rinella's office, Belinda Jill Pettitt, a medical assistant at the time, gave Mrs. Abifaraj a brief explanation of the Plan, as well as a form titled INFORMED CONSENT OF MY PHYSICIAN'S PARTICIPATION IN THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN (NICA). The form further provided: I hereby acknowledge that: I have been advised that Dr. John Rinella (OB), MD is a participant in the NICA Plan; I have been furnished with a copy of the NICA brochure which describes the NICA Plan and my rights and limitations under the NICA Plan; I understand that the no-fault aspects of the NICA Plan will serve as an exclusive remedy for injury which qualifies under the NICA Plan and that as a result I am forfeiting any and all rights to bring legal action in a Court of Law for damages in connection with such injuries; Any questions I may have had regarding my physician's participation in the NICA Plan and my rights and limitations under the NICA Plan have been answered to my satisfaction; I hereby consent to obstetrical services having been given notice pursuant to Florida Statutes 766.316 by my physician of the applicability of NICA upon such obstetrical services. Contemporaneously, Ms. Pettitt gave Mrs. Abifaraj a copy of the brochure (prepared by NICA) titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Ms. Abifaraj acknowledged her understanding of the form, as well as receipt of the NICA brochure, by dating and signing the form.3 While Mrs. Abifaraj received notice on behalf of the participating physician, the proof failed to demonstrate that Plantation General 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. Abifaraj pre-delivery notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. Rather, the health care providers contend that the hospital's failure to give notice is inconsequential when, as here, the patient's obstetrician has accorded notice of his participation in the Plan. Whether, as contended by the health care providers, the hospital's failure to accord Mrs. Abifaraj notice should be overlooked, as harmless, is addressed in the Conclusions of Law.
The Issue Whether Tristan Bennett, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physician provided 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 Stipulated facts Robert Bennett and Tammy Bennett are the natural parents of Tristan Bennett, a minor. Tristan was born a live infant on September 26, 2001, at St. Vincent's Medical Center, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tristan's birth by William H. Long, 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. Mrs. Bennett's antepartum course and Tristan's birth The accident Mrs. Bennett's antepartum course was without apparent complication until approximately 7:05 a.m., September 26, 2001, when Mrs. Bennett was involved in a motor vehicle accident in Macclenny, Florida, when the right front tire of the SUV she was driving at low speed slid into a drainage ditch in front of her home and struck a culvert, flattening the tire.2 At the time, the fetus was at term (38+ weeks' gestation), with an estimated delivery date of October 8, 2001. However, given a previous cesarean section and breech presentation, Mrs. Bennett was scheduled to have a cesarean section at St. Vincent's Medical Center on October 3, 2001. Baker County Emergency Medical Services (EMS) responded to the scene, and following arrival (at 7:15 a.m.) noted a chief complaint of lower back and abdominal pain. Assessment revealed the abdomen to be soft, but tender. Mrs. Bennett was immobilized supine on a backboard, provided oxygen (O2) by nasal cannula (nc), and transported to Ed Fraser Memorial Hospital (also known as Baker County Community Hospital) in Macclenny.3 The Ed Fraser Memorial Hospital admission Mrs. Bennett arrived at Ed Fraser Memorial Hospital at 7:33 a.m. Initial vital signs were obtained at 7:42 a.m., showing a blood pressure of 134/101, heart rate of 108, and oxygen saturation of 97%. Chief complaint when triaged at 7:45 a.m., was noted as "MVA Restrained G[ravida]3 P[ara]2 back/abd[ominal] pain." She was noted to be alert and cooperative, with coherent speech, and physical examination was within normal limits. Cheryl Kennedy, R.N., an ER nurse in the Ed Fraser Memorial Hospital emergency department, used a handheld Doppler to evaluate fetal heart tones "[i]mmediately upon the patient arriving in the emergency room." Mrs. Kennedy testified that her note "FHT 118 (placenta)" on the Triage Sheet meant that "[t]he sound from the Doppler was more indicative that that was the placenta that we were picking the heart rate up from, versus from the fetus." Stated otherwise, the entry most likely reflected a maternal heart rate and not a fetal heart tone (FHT). (Exhibit 14, pages 10, 11, and 42). At 8:00 a.m., Mrs. Bennett was evaluated by the emergency room physician, Wayne Oberti, M.D. Dr. Oberti's history documented a complaint of lower back pain, denial of abdominal pain, minimal chest tightness, no neck pain, no change in vision, and the development of some nausea, vomiting and diarrhea over the course of her admission. Dr. Oberti's physical examination noted the abdomen as soft, nontender; that movement of the right lower extremity precipitated low back pain; and that he was unable to identify fetal heart beat (FHB) with handheld Doppler.4 Other findings were not shown to be remarkable. A one-view lumbar spine x-ray and pregnancy sonogram for fetal heart rate (FHR) were ordered by Dr. Oberti. Mrs. Bennett was removed from the backboard after Dr. Oberti's examination, and at 8:10, following an episode of vomiting, was taken to x-ray via stretcher, where she had an x- ray of her lumbar spine (that was unremarkable). Then Mrs. Bennett was moved into the hallway, where she waited on the stretcher for the sonogram. There she had an episode of nausea, vomiting and diarrhea, was cleaned and taken into a room for the sonogram, and then returned to the emergency room at 9:00 a.m. The extent of Mrs. Bennett's sonogram is a subject of controversy. One film/sheet containing six sonogram images exists for the sonogram study. Each of the images on the film contain the time the image was taken. The first image was timed at 8:45 a.m., and the last image was timed at 9:00 a.m. Two of the six images contain a fetal heart rate, the first reading being 146 beats per minute and the second reading, obtained at 9:00 a.m., being 133 beats per minute, all within normal limits (120 to 160 beats per minute). However, Jessica Knabb, the ultrasound technician, testified it was likely more images were obtained, since there were usually four to five sheets for such a study. (Exhibit 15, page 7). Moreover, at the time it was the hospital's policy to provide the original films if a request to review the study was made by third parties, and the study was requested on a number of occasions. (Exhibit 21). Therefore, it is likely that some of the films from the sonogram study (taken after Mrs. Bennett's episode of nausea and before the film that exists for 8:45 a.m., to 9:00 a.m.) are missing. Although the film of record documents a reassuring fetal heart rate, Dr. Oberti testified that he was advised by "whoever answered the phone in the ER" that the sonogram study revealed a heart rate in the 80s, and he so documented the report on the Emergency/Outpatient Department record as "FHR 80s" and initiated Mrs. Bennett's transfer via helicopter (LifeFlight) to St. Vincent's Medical Center for presumed "fetal distress." The Physician Certificate of Transfer, signed by Dr. Oberti at 9:10 a.m., noted the availability of labor and delivery services, with fetal monitoring and back-up surgical services at St. Vincent's Medical Center, as the reasons for transfer. (Exhibit 16, pages 22, 23, and 79; Exhibit 3). Before transfer, and following her return to the emergency room at 9:00 a.m., Mrs. Bennett was given O2 via nc, normal saline (NS) by IV for hydration, Phenergan for nausea, and a Foley catheter was placed in preparation for her transfer to St. Vincent's Medical Center by LifeFlight. Notably, the records of Baker County EMS and Ed Fraser Memorial Hospital make no mention of Mrs. Bennett being in labor, Dr. Oberti and Mrs. Bennett were of the opinion she was not in labor,5 and monitoring on presentation to St. Vincent's Medical Center, discussed infra, provides support for their opinions. LifeFlight LifeFlight arrived at Ed Fraser Memorial Hospital at 9:25 a.m., and departed with Mrs. Bennett at 9:41 a.m. The LifeFlight records note that Mrs. Bennett complained of high abdominal pain and low back pain following a car accident at a low rate of speed in which she was a restrained driver. The LifeFlight record then states: . . . Pt was taken to x-ray for a sonogram at which FHT were noted to be in the 80's for about a 10 min. period. . . . It was determined that there was fetal distress and LifeFlight was called for emergent transport. Notably, the LifeFlight records do not reflect where the information regarding the "10 min. period" of fetal bradycardia came from, and LifeFlight personnel did not recall who provided the information. Moreover, Dr. Oberti denied that a fetal heart rate in the 80s was ever reported for a 10 minute period, and the hospital records contain no such documentation. (Exhibit 16, pages 32 and 33; Exhibit 3). The LifeFlight records also state that Dr. Oberti performed a vaginal/cervical examination of Mrs. Bennett at Ed Fraser Memorial Hospital: . . . Cervical exam done by Dr. Oberti at 0800 with report of 2cm dilation and no drainage or bloody show. However, Dr. Oberti denied having performed a vaginal examination of Mrs. Bennett, and the hospital records contain no such documentation. (Exhibit 16, pages 38, 53, and 74; Exhibit 3). Here, there is no reason to question the integrity and professionalism of the LifeFlight paramedics. Indeed, they had no apparent reason to fabricate the information reported and the most likely source of the information was hospital personnel. However, under the circumstances, that does not make the information reliable and it remains hearsay which, there being no apparent exception to its admissibility, cannot support a finding of fact. § 120.57(1)(c), Fla. Stat. ("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.") St. Vincent's Medical Center Mrs. Bennett's transfer via LifeFlight was without incident, and at 9:59 a.m., she was admitted to labor and delivery at St. Vincent's Medical Center and placed on external fetal monitoring. At the time, an "irritable" uterus was noted, with contractions of mild intensity, lasting 30-45 seconds, consistent with placental abruption (at an unknown stage) and not labor.6 Fetal monitoring was reassuring, with a fetal heart rate baseline in the 150s, with average long-term variability and accelerations present. Mrs. Bennett was continuously monitored until 12:47 p.m., when fetal monitoring was discontinued and she was taken to the operating room for a cesarean section delivery. During that period, Mrs. Bennett's contractions were always mild, and did not increase in intensity, did not increase in duration, and demonstrated a pattern consistent with an irritable uterus due to placental abruption, unlikely to produce cervical change.7 Stated otherwise, the record reveals that, more likely than not, Mrs. Bennett was not in labor, when monitoring was discontinued at 12:47 p.m., or, there being no persuasive evidence to support a contrary conclusion, thereafter.8 During the same period, fetal monitoring continued to reveal a reassuring fetal heart rate, with a fetal heart rate baseline in the 160s, with average long-term variability.9 Of note, Dr. Long wrote an Admit Note at 12:15 p.m., which stated: C[hief]/c[omplaint]/ A[utomobile]A[ccident] this AM H[istory] 31 y[ear] o[ld] G[ravida]3 P[ara]2 L[ast]M[enstrual]P[eriod] = 12-31-00 = EDC 10-8-01 [with] E[stimated]G[estational]A[ge]38 wks S[tatus]/P[ost] previous C[esarean]/S[ection] involved in single car A[utomobile]A[ccident] this AM [with] blunt trauma from steering wheel to abd[omen]. Pt was taken by rescue to Frazier Memorial Hosp where eval showed no evidence of sig[nificant] trauma but ? FHT to 80 B[eats]P[er]M[inute]. Pt sent to St V's by helicopter. On arrival here F[etal]H[eart]T[ones] in 150's. Pt c[omplained]/o[f] uterine c[ontraction] & vague discomfort. She has sl[ight] lower back pain. Fetus is active. No vag[inal] bleeding or ROM. P[ast]M[edical]H[istory] Migraines . . . Exam [Blood pressure] 131/86 [Pulse] 87 [Temperature] 99.2 {Respirations] 18 F[etal]H[eart]T[ones] 150-160's . . . Abd[omen] F[undal]H[eight][consistent with] term [gestation] Breech Sl[ightly] tender diffusely. C[ervi]x Post[erior] 1-2 [cm dilated] 30[% effaced] -3 [station] BR[eech] Ext(remities] w[ithin]n[ormal]l[imits] E[lectronic]F[etal]M[onitor] [shows] mild [every] 1-2 min ctx F[etal]H[eart]T[ones] 160. Ass[essment]: Previous C[esarean]/S[ection] at term; Breech; A[utomobile]A[ccident] with ? abruption. Plan: Will proceed with repeat C/S . . . (Exhibit 7; Exhibit 20, pages 40-42). Of further note, Dr. Long wrote an addendum at 12:40 p.m., which stated: Pt has had no urine output since admission. Foley has been replaced [with] only small am[ount] of blood tinged fluid. U[ltra]/S[ound] ? [shows] no fluid vis[ible] in bladder. * * * Ass[essment]: No urine output. Prob[able] adeq[uate] hydration R[ule]/O[ut] Bladder injury; R[ule]/O[ut] developing anemia ? hypovolemia ? ?U[rinary]O[utput]. Pl[an]: Will repeat CBC, PT PTT. Will proceed [with] C[esarean]/S[ection] & abd[ominal] exploration & eval[uation] g[enito]u[rinary] for poss[ible] trauma. With regard to Tristan's delivery, the medical records reveal that at 1:16 p.m., the operation started (the incision was made/delivery began); at 1:21 p.m. Mrs. Bennett's membranes were ruptured, with clear fluid noted; and at 1:22 p.m., Tristan was delivered without difficulty or trauma. Evidence of a partial placental abruption was noted. At delivery, Tristan did not cry, had minimal respiratory effort, and required resuscitation, with bulb, free flow oxygen, mechanical suction, and bag and mask ambu. Apgar scores of 6 and 8 were reported at one and five minutes respectively.10 Cord blood gas revealed profound metabolic acidosis, with an arterial cord pH of 6.76, PCO2 51.2, PO2 of 17, and a base excess (BE) of -28. Venous cord pH was reported as 7.18, PCO2 as 46.6, PO2 as 20 and BE as -10.3. Following delivery, Tristan was transferred to the newborn nursery, where she was received at 1:45 p.m., and placed on a heated warming table. Initial assessment noted slight wetness throughout lung fields, bilateral chest rise, tachypnea, no nasal flaring, occasional expiratory grunting, no retractions, pale pink color with slight acrocyanosis, and improving tone. Arterial blood gas collected at 1:47 revealed a pH of 7.14, PO2 of 90, PCO2 of 31.7, and BE of -16.4. Under the circumstances, Tristan was transferred to the special care nursery for further management, due to moderate respiratory distress and metabolic acidosis. Tristan was admitted to the special care nursery at 2:10 p.m., and placed on a radiant warmer. Initial assessment noted oxygen saturation (SaO2) at 97% on room air; color pale, pink; mild grunting, with slight retractions; and moderate lethargy. Tristan was provided respiratory support (NS bolus, free flow oxygen, and O2 via nc) and bicarbonate therapy; her respiratory distress and metabolic acidosis resolved fairly quickly; and by 9:30 p.m., her respiration was noted as unlabored, skin remained pale/pink, and she was sleeping quietly. Tristan's subsequent neonatal course The medical records related to Tristan's subsequent neonatal course reveal that prior to her pulmonary arrest on October 3, 2001, Tristan suffered from renal failure and acute tubular necrosis (ATN), with resulting oliguria, fluid retention, and hyponatremia; respiratory distress; elevated liver enzymes; and was placed on empiric antibiotics for possible sepsis. However, while Tristan's metabolic acidosis and multi-organ system failure support the conclusion she suffered a hypoxic ischemic insult before, during, and likely immediately following delivery, physician progress notes during the days following her delivery repeatedly document the absence of neurologic involvement or neurological damage. Pertinent entries read: [9/28/01] PE: pink, alert, active . . . appears clinically stable. [9/28/01 3:15 p.m.] Neuro grossly intact, symmetric exam, no focal deficits . . . Suspect renal failure/ATN, and probably . . . hyponatremia . . . Suspect must have suffered some asphyxia damage in MVA. [9/29/01 7:45 a.m.] Neuro-Active Alert . . . [9/30/01 5:30 p.m.] No evidence of CNS [central nervous system] dysfunction at present. [10/1/01 10:05 p.m.] Neuro grossly intact . . . (8)Asphyxia - infant [with] S[ymptoms] C[onsistent]/w[ith] asphyxial/hypoxic organ damage. Remains in ATN, oliguric phase, [with] blood, pro[ein] in urine. Creatinine cont to increase. LFT's also elevated, though actually improving. No other organ damage evident @ this time. * * * (10) CNS - No neuro abnormalities noted . . . . [10/2/01 11:45 a.m.] No focal neuro deficits, Active & Alert . . . . (8) Asphyxia: Multiorgan failure . . . . (10) CNS No obvious neuro abnormalities. [10/3/01 a.m.] #8 Asphyxia: Multiorgan involvement . . . . No evidence of CNS involvement. On October 3, 2001, at approximately 9:30 a.m., the Special Care Nursery Flow Sheet documents that Tristan suffered from a pulmonary hemorrhage, with frank blood noted orally, and a moderate amount of blood was suctioned by bulb. At 10:30 a.m., Tristan was noted to be apneic (not breathing), with a heart rate below 80 beats per minute and slowly decreasing; oxygen saturation (SaO2) was decreasing to the 40 percent (%) range; and a large amount of frank blood was noted coming from the mouth. At 11:00 a.m., Tristan was intubated, placed on a ventilator, and received transfusions of red blood cells and fresh frozen plasma beginning at 11:18 a.m. and 11:30 a.m., respectively. At 3:00 p.m., Tristan's heart rate was noted in the 40s, with saturations at 45%, and suctioning obtained a large amount of blood-tinged mucous. At 3:23 p.m., Tristan's heart rate was 53, saturations decreased from 40% to 23%, and CPR, with Ambu and chest comparisons, was begun. At 3:26 p.m., CPR was stopped; at 3:27 p.m., heart rate was noted at 77 and saturations at 68%; and at 3:29 p.m., heart rate was noted at 90, slowly increasing to 108, and saturations at 65%. Tristan's arterial blood gas collected at 3:34 p.m., showed a pH of 7.03 and a BE of -12.2. At 3:39 p.m., a large amount of thick, blood-tinged mucous was again suctioned, and at 3:43 p.m., more blood-tinged mucous was suctioned. At 3:48 p.m., Tristan's heart rate had decreased to 28, and her saturations to 39%. By 3:55 p.m., Tristan's heart rate had increased slowly to 66, and saturations to 50%, and at 3:57 Tristan's heart rate had increased to 132, and saturations to 89%. Arterial blood gas collected at 4:10 p.m., showed a pH of 6.88 and a BE of -23.5. Tristan remained critically unstable throughout the rest of the day and evening of October 3, 2001, and between 11:20 p.m., and 11:30 p.m., staff noted the likely onset of seizure activity ("Baby having stiffening of legs & arm trembling."). Physician's Progress notes document additional neurologic abnormalities following the October 3 arrest and resuscitation: [10/4/01 11:20 a.m.] Possible seizure last night . . . #10 CNS: Had no obvious CNS dysfunction till last night. [10/5/01 11:00 a.m.] CNS tremors on PB [Phenobarbital] . . . EEG in progress. Dr. Gama consulted office aware. ? Seizures Encephalopathy? (P) Neuro consulted . . . CT when stable. A neurological consult by Dr. Gama on October 5, 2001, describes Tristan's hospital course leading up to the October 3, 2001, arrest and then states: The baby developed thrombocytopenia and then progressively started bleeding with associated pulmonary bleeding. This was controlled with appropriate ventilatory support; however, a second episode of pulmonary hemorrhage occurred, this time associated with significant decline and requiring some resuscitation. This occurred on 10/3. The patient following this was noted to have some jerking movements of her extremities which were easily controlled with pressure. However because of her clinical decline, it was felt that this represented seizure activity. The baby was bloused with phenobarbital. The level was followed but because of recurrence of these symptoms, the patient was rebolused today. The patient's phenobarbital is 23 today. An electroencephalogram has been obtained but is still pending in its results. Neurologic consultation is obtained. * * * PHYSICAL EXAMINATION: The patient's examination demonstrates a head circumference of 33.5 cm. The baby is sedated, intubated, and with an umbilical catheter in place. The head demonstrates a normotensive anterior fontanelle. The sutures are unremarkable. There is some scalp edema secondary to slight fluid overload most likely secondary to her renal disease process. Pupils were 1 mm and equal. Doll's eyes were present. The patient's sucking reflex is decreased. Rooting reflex is decreased. She is intubated through her mouth. The patient's motor examination shows that she is floppy with decreased muscle tone throughout, retraction response is absent, head control is absent, motor reflex is absent. The baby withdraws extremities to touch. The deep tendon reflexes are hypoactive. Babinski could not be elicited. Palmar and plantar grasp are decreased. Spine shows no particular abnormalities . . . . IMPRESSION New onset seizures most likely secondary to multiple factors including: Status post pulmonary hemorrhage. Hypoxic ischemic encephalopathy. Metabolic as well as possible dysmorphogenic causes. Rule out central nervous system hemorrhage. Acute tubular necrosis secondary to hypotension, metabolic acidosis and possibly hypoxemia. Liver dysfunction. Disseminated intravascular coagulation. Status post metabolic acidosis. Status post hypertension. Status post maternal motor vehicle accident and trauma . . . . CT scan performed October 29, 2001, showed multicystic encephalomalacia of the cortex. EEG's performed October 5, 2001, October 8, 2001, October 17, 2001, and November 2, 2001, were all abnormal, showing background disorganization suggestive of diffuse cerebral dysfunction. Tristan was discharged home on November 14, 2001, with follow-up appointments with her primary care physician (Carithers Pediatrics), as well as nephrology (for renal status), neurology (Dr. Gama), and physical and occupational therapy. Thereafter, on November 27, 2001, Dr. Gama reported the results of a follow-up neurologic evaluation to Tristan's pediatrician (Dr. Julie Baker), and concluded: In general, it is my opinion that Tristan is status post severe perinatal distress with hypoxic ischemic encephalopathy, metabolic acidosis, associated with coagulopathy and complicated with one cardiac arrest requiring resuscitation while at the special care nursery. The result of all these complications is culminated with what appears to be a severe hypoxic ischemic encephalopathy with multicystic encephalomalacia and seizure disorder . . . (Exhibit 10). 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."11 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, it is undisputed that Tristan suffered brain injury, caused by oxygen deprivation, which rendered her permanently and substantially mentally and physically impaired. What must be resolved is whether the record supports a conclusion that, more likely than not, such injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. As to that issue, Petitioners were of the view that while Tristan may have suffered oxygen deprivation at St. Vincent's Medical Center between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved from labor and delivery to the operating room for a cesarean section delivery) and 1:22 p.m., September 26, 2001 (when Tristan was delivered), Mrs. Bennett was never in labor, and Tristan did not suffer neurologic injury or evidence profound neurologic impairment ("permanent and substantial mental and physical impairment") until after her pulmonary arrest on October 3, 2001. In contrast, NICA was of the view that Tristan's neurologic impairments resulted from a brain injury caused by oxygen deprivation (secondary to a partial placental abruption), that occurred following the automobile accident the morning of September 26, 2001, and prior to her transfer from Ed Fraser Memorial Hospital to St. Vincent's Medical Center, and that Mrs. Bennett was not in labor at the time. Finally, Intervenors were of the view that Tristan suffered a brain injury, and profound neurologic impairment, caused by oxygen deprivation at St. Vincent's Medical Center between 12:47 p.m. and 1:22 p.m., that Mrs. Bennett was in labor when the fetal monitor was disconnected, and that injury likely continued into the immediate postdelivery period. (Prehearing Stipulation). The statutory presumption Pertinent to this case, Section 766.309(1)(a), Florida Statutes, provides: . . . If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2). "Claimant," as that term is used in the Plan, is defined by Section 766.302(3), to mean: . . . any person who files a claim pursuant to s. 766.305 for compensation for a birth related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof. Notably, in this case it is not the Petitioners (Claimants) who seek the benefit of the presumption, but the Intervenors, who urge its application over Petitioners' objection. Consequently, it must be resolved whether any party, other than Petitioners (Claimants) may claim the presumption (i.e., that the injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period"). If so, it must then be resolved whether there was credible evidence produced to support a contrary conclusion and, if so, whether absent the aid of such presumption the record demonstrates, more likely than not, that Tristan's injury occurred during labor, delivery, or resuscitation.12 The ultimate goal in construing a statutory provision is to give effect to legislative intent. Bellsouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003). "In attempting to discern legislative intent, we first look to the actual language used in the statute." Id. at 289. "If the statutory language used is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent." Id. at 289. "Ambiguity suggests that reasonable persons can find different meanings in the same language." Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992). "[I]f 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." Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002). Here, the language chosen by the legislative is clear and unambiguous. The presumption is for Petitioners' (Claimants') benefit, and is not available to aid other parties in satisfying their burden to establish that Tristan's brain injury occurred in the course of labor, delivery, or resuscitation. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal."). Moreover, there was credible evidence produced (in Tristan's medical records) to support a contrary conclusion, and to require resolution of the issue without regard to the presumption. The likely timing of the brain injury that rendered Tristan profoundly, neurologically impaired To address the cause and timing of Tristan's neurologic impairment, the parties offered the medical records related to Mrs. Bennett's antepartal course, as well as those associated with Tristan's birth and subsequent development. Additionally, the parties offered the deposition testimony of many of the health care providers who were involved with Mrs. Bennett's care on September 26, 2001, and Tristan's birth. Finally, the parties offered the testimony of four expert witnesses to support their respective positions. Offered by Petitioners was the testimony of Richard Fields, M.D., a physician board-certified in obstetrics and gynecology, and Norman Pryor, M.D., a physician board-certified in pediatrics and pediatric nephrology; offered by Respondent was the testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine; and offered by Intervenors was the testimony of Gary Hankins, M.D., a physician board-certified in obstetrics and gynecology and maternal-fetal medicine. Oddly, no party offered the testimony of a neurologist or neonatologist to address, apart from the observations of the health care providers who were involved in Tristan's care, the likely timing of the brain injury that rendered Tristan profoundly, neurologically impaired. The medical records, as well as the testimony of the physicians and other witnesses, have been thoroughly reviewed. Having done so, it must be resolved that the record developed in this case compels the conclusion that, more likely than not, Tristan suffered multi-system failure as a consequence of the oxygen deprivation she suffered between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved to the operating room) and 1:22 p.m. (when Tristan was delivered), that likely continued during the immediate postdelivery resuscitative period. However, it is unlikely Tristan suffered a brain injury or substantial neurologic impairment until after she experienced profound episodes of oxygen deprivation on October 3, 2001, following the onset of pulmonary hemorrhaging and pulmonary arrest. In so concluding, it is noted that Tristan was delivered atraumatically, she responded rapidly to resuscitation immediately after delivery, her neurologic examinations during the first seven days of life were normal, she suffered prolonged and severe decreases in fetal heart rate and saturations on October 3, 2001, she manifested prolonged and severe acidosis following her arrest, and she evidenced seizure activity and neurologic decline thereafter. Given the proof, it is likely, more so than not, that Tristan's profound neurologic impairments resulted from a brain injury caused by oxygen deprivation that occurred October 3, 2001, and not during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Consequently, Tristan was not shown to have suffered a "birth-related neurological injury" as defined by the Plan, and the claim is not compensable. § 766.302(2), Fla. Stat. See also Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words written, the oxygen deprivation or mechanical injury must take place during labor and delivery, or immediately afterward."). The notice issue Apart from contesting compensability, Petitioners also sought the opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions were not satisfied by the health care providers. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the hospital and the participating physician complied with the notice provisions of the Plan. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). Accord 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."); 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). 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[13] 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 brocure 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 a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients.14 (Exhibit 4 to Exhibit 25). Findings related to notice Mrs. Bennett received her prenatal care at St. Vincent's Division I, one of a number of offices in the Jacksonville area operated by North Florida OB/GYN, a group practice comprising numerous physicians. At the time, three obstetricians who delivered babies were on staff at St. Vincent's Division I: Dr. William Long, Dr. Thomas Virtue, and Dr. Scott Wells. Dr. Long, who had delivered Mrs. Bennett's two previous children (boys, born in 1993 and 1997), was Mrs. Bennett's primary ob/gyn. However, as a group practice, all physicians rotated delivery calls at the hospital, so it was possible another physician would participate in the delivery. Consequently, a patient commonly saw all the delivering physicians during prenatal care. Notably, all physicians associated with the St. Vincent's Division I, who delivered babies, were participating physicians in the Plan. On February 5, 2001, Mrs. Bennett presented to St. Vincent's Division I for her initial prenatal visit. At the time, consistent with established routine, Kathryn Becker, R.N., the OB care coordinator, met with Mrs. Bennett to discuss her case, take a patient history, and provide her with a number of forms to complete and sign, including: a Consent for Obstetrical Delivery form; Florida's Healthy Start Prenatal Risk Screening Instrument; a Consent for Human Immunodeficiency Virus form; a Genetic Screening Supplement; and a Notice to Obstetric Patient form (to acknowledge receipt of the NICA brochure) and a NICA brochure. The Notice to Obstetric Patient provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by North Florida OB/GYN prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that they are a participating practice in the 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 , 2001. Attest: ____ Signature of Patient Nurse/Physician (Name of Patient) Printed Date: Social Security Number Witness to Signature Mrs. Bennett signed the form, acknowledging receipt of the NICA brochure and Nurse Becker witnessed her signature. Here, there is no dispute that Mrs. Bennett signed the Notice to Obstetric Patient or any debate that she received a copy of the NICA brochure on her initial visit. Rather, what is at issue is whether the form, which provides "I have been furnished information by North Florida OB/GYN prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that they are a participating practice in the program," coupled with what Mrs. Bennett was told during her initial visit, was adequate to place Mrs. Bennett on notice that Dr. Long was a participant in the Plan. As described by Nurse Becker, during the course of the initial visit, her custom and practice when discussing NICA was to inform the patient that "all of the doctors in our practice that deliver babies participate" and then "explain the pamphlet . . . [,] point out the information inside, that it tells them briefly about it [,and] [t]he back tells them who it's with and how to contact them." Here, Nurse Becker is confident she followed her routine, since she witnessed Mrs. Bennett's signature on a number of documents, including the Notice to Obstetric Patient, and documented her routine through an entry on the ACOG Antepartum Record. That entry read "NOB [new obstetric] Interview [with] PNV, PNL, Consents, NICA, Healthy Start, prentatal education & literature completed; PTL, SAB & safety info given." (Exhibit 25, pages 6, 15, and 39; Exhibit 1 to Exhibit 25). Giving due consideration to the proof, it must be resolved, contrary to Petitioners' view, that the Notice to Obstetric Patient, although it did not specifically name St. Vincent's Division I, was not misleading, and that when coupled with Nurse Becker's disclosure that "all of the doctors in our practice that deliver babies participate," was adequate to place Mrs. Bennett on notice that all physicians at that office who delivered babies participated in the Plan. In so concluding, it is noted that Mrs. Bennett had been a patient of Dr. Long's for an extended period, that all her prenatal care was at St. Vincent's Division I, and the only logical conclusion a reasonable person could draw from receiving this information was that Dr. Long and the other physicians in the office who did deliveries were participating physicians. Accordingly, the proof demonstrates Dr. Long satisfied the notice provisions of the Plan. See Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 932 So. 2d 1125 (Fla. 5th DCA 2006). In all, Mrs. Bennett had 14 prenatal visits at St. Vincent's Division I, with the last two being on September 18 and 24, 2001. Of note, on September 18, 2001, Mrs. Bennett, who had a previous cesarean section (with her second child) and presented with a breech, voiced her election to proceed with a repeat cesarean section. Accordingly, she met with staff at St. Vincent's Division I that day, staff coordinated with St. Vincent's Medical Center, and surgery was scheduled for October 3, 2001. Notably, there is no proof that at any time prior to her admission of September 26, 2001, Mrs. Bennett visited or otherwise contacted St. Vincent's Medical Center. At or about 9:59 a.m., September 26, 2001, Mrs. Bennett was admitted to labor and delivery at St. Vincent's Medical Center for monitoring, and at or about 11:20 a.m., she was formally admitted. At that time, her attending nurse, Christine May, R.N., provided Mrs. Bennett with a number of forms to sign, including a Consent to Anesthesia, Parental Acknowledgment of Preventative Safety Measures, and a Notice to Obstetric Patient (to acknowledge receipt of the NICA brochure) and a NICA brochure. The Notice to Obstetric Patient provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by St. Vincent's Medical Center prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Dr. Long[15] is a participating physician in the 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 , 2001. Signature of Patient (Name of Patient) Printed Social Security Number Witness to Signature Attest: Nurse or Physician Date: Mrs. Bennett signed the form, acknowledging receipt of the NICA brochure, and Nurse May witnessed her signature. Here, Petitioner contends that "[g]iven the fact that Mrs. Bennett had pre-registered for her scheduled cesarean section delivery, it was practicable for St. Vincent's Medical Center to have given Mrs. Bennett notice of NICA participation prior to two hours before delivery." Therefore, Petitioners conclude, "St. Vincent's Medical Center failed to comply with the notice provisions of the Plan." (Petitioners' Proposed Final Order on Compensability and Notice, paragraph 54). However, as previously noted, the scheduling of Mrs. Bennett's cesarean section with St. Vincent's Medical Center was done by staff at St. Vincent's Division I, and there is no proof that Mrs. Bennett visited or had any contact with St. Vincent's Medical Center. Accordingly, the notice provided Mrs. Bennett on September 26, 2001, was timely, as prior notice was not practicable.16
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 Whether Samuel J. Anderson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physicians provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2004), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2004), or the giving of notice was not practicable.2 Whether Certified Nurse Midwife (CNM) Christine Hilderbrandt was a "participating physician," given the requirements of Sections 766.302(7) and 766.314(4)(c) and (d), Florida Statutes.
Findings Of Fact Stipulated facts related to compensability Allison Anderson and Timothy Anderson are the natural parents of Samuel J. Anderson, a minor. Sam was born a live infant on July 29, 2004, at Helen Ellis Memorial Hospital, a licensed hospital located in Tarpon Springs, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Sam's birth by Matthew Conrad, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Sam's birth and neonatal course4 At or about 3:30 a.m., July 29, 2004, Mrs. Anderson, with an estimated delivery date of July 30, 2004, and the fetus at 39 6/7 weeks' gestation, presented to Helen Ellis Memorial Hospital complaining of uterine contractions. Notably, vaginal examination at 4:30 a.m., revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high; uterine contractions were noted as irregular (inconsistent with active labor); and external fetal monitoring was reassuring for fetal well-being, with a baseline of 130 beats per minute. At 5:30 a.m., the on-duty nurse reported Mrs. Anderson's condition by telephone to Christine Hilderbrandt, R.N., the certified nurse-midwife (CNM) managing Mrs. Anderson's care. CNM Hilderbrandt gave orders to continue monitoring, and at 6:15 a.m., the fetal heart rate (FHR) was noted as reactive, and uterine contractions were again noted as irregular. At 9:00 a.m., CNM Hilderbrandt was noted at bedside, and examined Mrs. Anderson. At the time, vaginal examination revealed the cervix at 2 centimeters dilation, 50 percent effacement, and the fetus high; the cervix was noted as very soft; and fetal heart rate remained reassuring. A report was called to Matthew Conrad, M.D., the on-call physician, who authorized augmentation of labor, with pitocin. Pitocin induction was started at 9:45 a.m.; onset of labor was called at 3:45 p.m.; epidural bolus was given at 4:14 p.m.; spontaneous rupture of the membranes, with clear fluid, was noted at 4:15 p.m.; and complete cervical dilation was noted at 5:50 p.m. In the interim, at 4:40 p.m., variable decelerations to the 70-beat per minute range were noted, with contractions, and Mrs. Anderson was given oxygen by mask. Thereafter, variables were noted as minimal, with a baseline in the 140s, and a decline to the 110s to 120s, with prompt return to baseline. However, at 6:20 p.m., the fetal heart monitor showed the onset of severe bradycardia, when Sam's heart rate dropped to the 70s for 20 seconds, with a brief return to baseline; then at 6:21 p.m., dropped to the 70s for 90 seconds, and returned to baseline for 10 seconds; and at 6:22 p.m., dropped to 75 for 4 minutes and 40 seconds. The fetal monitor was disconnected at 6:27 p.m., and Mrs. Anderson was moved to the operating room (OR) for an emergency cesarean section. In the interim, at 6:26 p.m., Dr. Conrad was paged. Dr. Conrad entered the operating room at 6:47 p.m., to find the patient prepared and draped for cesarean section; rapid sequence induction (RSI) of anesthesia was accomplished at 6:48 p.m.; the operation started (the incision was made/delivery began) at 6:49 p.m.; and Sam was delivered at 6:50 p.m. Dr. Conrad's Operative Report documented his findings, as follows: Upon entering into the abdominal cavity, a gush of blood was observed. The infant was discovered floating freely in a puddle of blood behind the uterus along with the placenta and the umbilical cord. The infant was delivered at 18:50, completely flaccid, and passed on to an awaiting Neonatologist for resuscitation. The anterior surface of the uterus was intact but was remarkable for scarring of the bladder flap to the lower uterine segment along an indentation line, especially at the left corner, consistent with a previous transverse Cesarean Section. The posterior surface of the uterus was blown apart with a 15 cm circular rent extending to and including the left lateral vessels, the left round ligament, and extending down the left side of the cervix to an apex approximately 2 cm above the external os. Multiple bleeding sites, including the left uterine artery and vein, were gushing blood on entry. The left broad ligament was mangled and shredded. The defect in the posterior wall of the uterus was irregular with a shredded border and extended inferiorly to a position near the internal os of the cervix. This hole was measured to be approximately 15 cm in diameter. * * * The bleeding was quickly controlled by the application of clamps on the offending vessels and a transfusion of packed red blood cells begun. Careful examination of the defect was performed with the findings as noted above. The defect included nearly the entire back wall of the uterus to the level of the internal os which is to say that the uterine fundus was half amputated from the cervix by force of the trauma. Additionally, the edges of the defect were shredded. My conclusion was that this uterus was damaged beyond repair and the decision to proceed to supracervical hysterectomy was made . . . . Of further note, at delivery, a true knot was observed in the umbilical cord. Dr. Conrad's preoperative diagnosis was fetal distress, and his postoperative diagnosis was ruptured uterus. At delivery, Sam was flaccid, with no respiratory effort or spontaneous movement. Delivery room resuscitation included positive pressure ventilation (PPV) by bag and mask followed by intubation at 4 minutes of age for persistent apnea. Very infrequent gasping respirations stated at approximately 30 minutes of age, with sustained respiration after 60 minutes of age. Apgar scores were recorded as 3, at one, five, ten, fifteen, twenty, twenty-five, and thirty minutes.5 Cord blood gases were not obtained. Following resuscitation, Sam was moved to the newborn nursery and placed on a ventilator (full ventilatory support with a endotracheal intubation). Sam was diagnosed with perinatal depression/severe hypoxic-ischemic encephalopathy (HIE) secondary to uterine rupture, metabolic acidosis, and noted to be in critical condition. At 7:55 p.m., the Tampa General Hospital transport team, which had been requested while Sam was being resuscitated in the OR, arrived at Helen Ellis Memorial Hospital to assume responsibility for Sam's care, and transported him (via helicopter) to the neonatal intensive care unit (NICU) at Tampa General Hospital. Sam was admitted to Tampa General Hospital at 9:20 p.m., July 29, 2004. Initial examination revealed a hypotonic baby, with decreased tone, with no papillary or gag reflex, who only responded to painful stimulation, and who was intubated and "seizing" ("lip smacking, twitching of the face, later with tonic clonic seizures"). Sam was started on phenobarbital. CT of the head (CT) on July 29, 2004, was read as follows: There is incomplete definition of the gray and white matter borders with areas of low attenuation suggesting diffuse cerebral edema. The cisterns are patient. No hydrocephalus is identified. There is prominence of the falx with no definite blood identified. Follow up is recommended. IMPRESSION: Geographic low attenuation suspicious for diffuse cerebral edema. Follow up or correlation with ultrasound examination may be beneficial. Prominence of the falx with no definite acute hemorrhage identified. An Electroencephalogram (EEG) on July 30, 2004, showed a low-voltage background without seizure activity. The results of the EEG and a neurologic consult were reported in the Consultation Report, as follows: . . . The baby was examined shortly after EEG was completed. During the entire EEG, there were intermittent twitching of lower extremities or lower face including mouth and one or both of the lower extremities. When the twitching extremity is restrained, the twitching stops, but also can be brought on by stimulation. The baby is not responding in any purposeful manner to stimulation. However, the baby does open the eyes and at times appears that it is spontaneous, but most of the time there is upper eyelid twitch and it is possible that the twitching pulls the upper eyelid up and eyes open. The pupils are small, about 1 to 2 mm and reactive to light. Corneal reflex is present, but sluggish and eyes move very slowly to doll's eye maneuver. Gag is absent, but at the time of mouth twitching, the twitching is transmitted to the palate. On examination of neuromuscular system, muscle bulk is normal, tone is decreased and there is no meaningful spontaneous movements and no purposeful movements to stimulation. The only movements that are present are intermittent twitching of either one or both feet at the same time. Deep tendon reflexes are brisk mainly in the legs, 3+. There are no rashes, no organomegaly and there is no obvious injury to the body. IMPRESSION: This is a one-day-old baby with hypoxic ischemic encephalopathy likely caused by uterus rupture. The present twitching does not represent epileptic seizures. EEG showed no correlation between the movements and EEG abnormalities. Actually the EEG is quite severely depressed. The twitching which involves the lower extremity and mouth most likely represent brain stem phenomenon and for such phenobarbital is usually not helpful. RECOMMENDATIONS: Stop phenobarbital. As long as the movements do not interfere with vital signs, no treatment is indicated. The prognosis for neurological improvement is guarded at this time. Should any new developments occur, please reconsult neurology. Seizure activity did not continue beyond the day of admission, and phenobarbital was discontinued on July 31, 2004. A repeat EEG on August 2, 2004, was severely abnormal because of depressed cerebral activities with pattern reminiscent of burst suppression. A repeat CT scan of August 3, 2004, showed little change from the previous study. That scan was reported, as follows: The ventricles appear symmetrical and midline. There is no mass effect. There is mild prominence of the falx which is not as prominent when compared to the prior study and I suspect is within normal limits for this patient. There is poor gray/white matter differentiation which may be partly due to the patient's age. Edema cannot be completely excluded and correlation with MRI is suggested. There is questionable area of low attenuation in the left occipital region, again which is nonspecific. No new hemorrhage identified. IMPRESSION: Overall little change since the prior study. There is mild prominence of the falx, however, it is not as prominent when compared to the prior study and this may be within normal limits for this patient. Poor gray/white matter differentiation which may be partly due to patient's age and degree of brain myelination. Areas of low attenuation in the left occipital region. Further evaluation with MRI is suggested. No MRI evaluation was performed. On August 23, 2004, Sam was transferred to the Neonatal Intensive Care Unit at St. Joseph's Women's Hospital for fundoplication and G-tube insertion. The Transfer Note documented the following pertinent findings: Physical Exam Upon Discharge . . . General: sleeping, NAD, not arousable, large infant . . . Lungs: coarse breath sounds bilat, poor air entry . . . Neuro: -moro, -gag, sluggish papillary reflex, responds to touch, -spontaneous movement, -spontaneous eye opening Skin: -rashes, -jaundice . . . Respiratory: Pt had respiratory distress upon delivery and was intubated at Helen Ellis prior to transfer. Initial ABG showed pH 7.23. Pt was extubated to CPAP on DOL 1. Pt was weaned to RA by DOL 5 but due to aspiration pneumonia, pt was placed back on CPAP for 3 days on DOL 11. Pt has been weaned to RA and is currently stable with oxygen saturations 88-100% on RA. Pt requires frequent suctioning and repositioning to maintain his airway. CXR performed on DOL 18 showed significant improvement in pneumonia . . . GI: Pt was noted to have increased tracheal secretions after feeds were increased to 15 ml q 3 hours which was suggestive of reflux. Pt was also noted to have aspiration pneumonia on DOL 11 therefore GI was consulted for GERD and swallowing workup. A pH probe showed significant GERD, gastric emptying study showed dysmotility and severe reflux. Swallowing study showed no[] oral pharyngeal movement with feeds suggesting inability to take po feeds. It was discussed with the family and GI to plan for a Nissen Fundoplication with G/Tube placement at St. Joseph's Hospital by Dr. Martinez . . . Neurologic: . . . Pt. has continued to have significant neurological damage without improvement since initial admission . . . . The fundoplication and G-tube insertion occurred at St. Joseph's Women's Hospital on August 25, 2004. Otherwise, Sam's hospital course was summarized in his Discharge Summary (of September 2, 2004), as follows: Neurology: Admission EEG did not show evidence of seizure activity. Phenobarbital had been discontinued at Tampa General Hospital. The infant is hypertonic and has no gag or apparent swallow. He has significant encephalopathic changes consistent with a hypoxic ischemic insult. Occupational Therapy and Physical Therapy were consulted for evaluation. They recommended hand splints. Pediatric Neurologist had been following this infant's care at Tampa General Hospital. They will resume care when he gets back there. Respiratory: Sam has occasional desaturations which clear with suctioning of the oropharynx and nasopharynx. He does not appear able to handle his oral secretions. There is no current plan for tracheostomy to aid in the management after he goes home. This will be re-evaluated at Tampa General Hospital. Sam's subsequent medical care Sam was readmitted to Tampa General Hospital on September 2, 2004, and discharged to his parent's care on September 8, 2004. Physical examination on discharge noted: General: awake, no acute distress HEENT: NCAT, AFOSF, eyes deviated upward with moving eye movements * * * Lungs: coarse transmitted upper airway sounds bilaterally, good air movement Abdomen: soft NT/ND, G-tube well-healed, abdominal incision well-healed * * * Extremities: decreased range of motion throughout Neuro: increased tone in all extremities, severe head lag, no gag reflex or papillary reflex Skin: no rashes or jaundice Diagnoses included perinatal asphyxia/severe hypoxic-ischemic encephalopathy, and severe gastroesophageal reflux with dysmotility, status post (s/p) fundoplication and G-tube. On November 27, 2004, Sam, aged 4 months, was admitted to Mease Countryside Hospital because of an episode of apnea (for 50 seconds) and acute bronchiolitis, and transferred the same day to All Children's Hospital for further management. While at All Children's Hospital, tracheostomy was performed because of inability to swallow and for better airway management. CT of the brain on November 27, 2004, was reported, as follows: IMPRESSION: Bilateral symmetric mild dilatation of the lateral ventricles. Moderate dilatation of the third ventricle. Probable bilateral symmetric thalamic calcifications. Bilateral opaque mastoid air cells. Findings: There is a mild dilatation of both right and left lateral ventricles. This lateral ventricular dilatation is fairly symmetric and greatest in the frontal horns and anterior bodies of the lateral ventricles. Occipital horns and temporal horns are nor [sic] definitely abnormally dilated. There is a mild prominence of the temporal tips. There is moderate dilatation of the third ventricle. There is probable bilateral thalamic calcification which is symmetric. The differential of basal ganglial calcification is extensive. Brain radiodensity is otherwise unremarkable. On November 28, 2004, an EEG study was done, and interpreted by Joseph Casadonte, M.D., a physician board- certified in neurology, with special competence in child neurology, as follows: Impression: Markedly abnormal EEG recording, significance level III: Generalized slowing and disorganization of the background. Increase discontinuity for age. Hemispheric asymmetry. Multifocal spike and sharp waves in locations as enumerated above. Clinical Correlation: This EEG is consistent with this child's history of hypoxic ischemic encephalopathy. It shows a pattern consistent with severe bilateral cerebral dysfunction. It also shows several areas of potential epileptogenicity. During the study, the child had several clinical events characterized as posturing. These events were not associated with any epileptiform discharges, suggesting that they are not epileptic in origin. (Stipulated Medical Composite, Book 4 of 5, p. 2853). Sam was discharged from All Children's Hospital on December 13, 2004, with a noted history of hypoxic-ischemic encephalomathy, gastroesophageal reflux disease, gastrotomy tube and Nissen fundoplication, and upper airway obstruction, now status post tracheostomy, and tracheitis (inflammation of the traches), treated. Sam remains with a tracheostomy and G-tube (feeding tube) today. At the request of Sam's pediatrician, he was readmitted to All Children's Hospital on December 30, 2004, for an EEG and consultation with Dr. Casadonte. Dr. Casadonte reported the results of his consultation, as follows: REASON FOR CONSULTATION: Performed at the request of the Florida Pediatric Service. The child is 5 months old and has severe static encephalopathy secondary to hypoxic ischemic encephalopathy. Has intercurrent illness prompting admission (tracheitis). He has no independent function. He is undergoing hyperbaric treatment. He has episodes of irregular movements, rule out seizures. He was placed on continuous bedside electroencephalogram monitoring last evening.[6] * * * The child has no independent function. He does not focus or tract. He does not reach or transfer. He has dysconjugate eyes with poorly reactive pupils. His face is symmetric. He has increased tone in all his extremities. The child underwent video electroencephalogram. He has episodes of tonic stiffening. At times these episodes are associated with attenuation of the background. At times this attenuation stays for up to several minutes. At times it occurs without associated clinical change. Sometimes he has similar clinical movements, without attenuation of the background. Background electroencephalogram is abnormal with disorganization and multifocal sharp waves. IMPRESSION: Static encephalopathy with profound mental retardation. Electroencephalogram that shows periods of abrupt attenuation, sometimes associated with a tonic stiffening. At times, the child has similar episodes of stiffening without clear associated change, and sometimes he has several spasmic-like movements that are tonic in nature. I spoke with mother at length about the above findings. Expressed to her that some of his findings would be consistent with epileptic spasms. These are mostly tonic. However, I spoke to her at length because of his severe brain injury. The electrical clinical association is inconsistent. Subsequently, Sam was seen by Paul Kornberg, M.D., a pediatric rehabilitation specialist, Radhakrishna Rao, M.D., a pediatric neurologist, Steven Goss, M.D., a pediatric ophthalmologist, and Magda Barsoum-Homsy, M.D., a pediatric ophthalmologist. Dr. Kornberg reported the results of his September 6, 2005, consultation, as follows: REVIEW OF SYSTEMS: He is in good general health. The mother reports he has stiffness in his upper and lower extremities, particularly at his elbows though she reports no difficulty with daily care . . . . His hearing was tested at Tampa General Hospital and was reportedly okay. He has a tracheostomy . . . . History of hypoxic encephalopathy with spastic quadriparesis Visual function is unclear, and the mother questions whether he may inconsistently track his lobule . . . . He is NPO and receives all nutrition by his gastrostomy tube, primarily breast milk and also water. The mother reports no consistent responses to sound . . . . FUNCTIONAL/DEVELOPMENTAL HISTORY: Samuel is dependent for all functional mobility and self-care skills. He is unable to roll or sit independently when placed in prone though his mother reports he is able to turn his head a bit but he does not consistently localize to sound. Communication is only by crying and facial expression . . . . PHYSICAL EXAMINATION: * * * NEUROLOGIC: Facies are symmetric. Tongue is midline. Gaze is dysconjugate. Tone is increased in the extremities, upper greater than lower. Spasticity is noted. Modified Ashworth score of 1+ at the hip adductors and 2 at the elbow extensors, pectoralis major, ankle plantar flexors, as well as the finger flexors. Strength could not be assessed as there was no purposeful movement. Sensation was also difficult to assess. There was no consistent cortical recognition of noxious stimulus. Deep tendon reflexes are brisk throughout with overflow. There was no clonus elicited. COGNITIVE: The patient did not smile or respond to visual threat. No tracking was appreciated. Head control was poor. ASSESSMENT: Spastic quadriparetic cerebral palsy. Global profound development delay. Contractures. Dysphagia status post gastrostomy. Gastroesophageal reflux disease status post partial fundoplication. Tracheostomy dependent. * * * Spasticity. Suspect cortical visual impairment. RECOMMENDATIONS: Continue physical therapy to maximize range of motion, positioning, and attempt to maximize gross developmental skills. Continue occupational therapy for upper extremity range of motion, splinting, as well as adaptive equipment. * * * 6. A prescription was provided for vision therapy services through Early Intervention. In an examination on March 16, 2007, Dr. Kornberg noted "profound impairment" of Sam's cognitive function. (Stipulated Medical Composite, Book 4 of 5, p. 2987). Dr. Rao reported the results of his September 12, 2005, neurological consultation, as follows: Neurological Examination: Mental Status Examination: Patient is alert and awake. Patient has dyscongugait gaits. Tongue is in midline. Limited examination. Patient tried to turn the eyes towards the sound bilaterally. Motor Examination: The tone increased in all the extremities both upper and lower. Spasticity is noted. Sensory Examination: Limited examination but appreciates touch. Deep Tendon Reflex: Brisk bilaterally. There is no clonus elicited. Clinical Impression: It is found global developmental [delay], spasticquadraperetic cerebral palsy, GI reflux as per the history with the G-tube in placed and has a history of partial fundoplication. Patient also has tract in place. Possible visual impairment. Patient also has hypoxic encephalopathy. Recommendations: We will obtain CAT scan of brain without contrast to document the extent of injury and further evaluation of intracranial pathology. We are also requesting for a routine EEG to be done . . . . The results of the CT scan (completed October 18, 2005) were reported, as follows: There is moderate ventriculomegaly probably due to under development. There is mild periventricular leukomalacia in both frontal and parietal lobes. The middle cerebral peduncles (upper mid brain) are small and this may be due to Wallerian degeneration from the reduced white matter above. IMPRESSION: MODERATE VENTRICULOMEGALY WITH THINNING OF THE WHITE MATTER AND MILD PERIVENTRICULAR LEUKOMALACIA. EVIDENCE OF WALLERIAN DEGENERATION WITHIN THE MID BRAIN DUE TO THE WHITE MATTER DISEASE ABOVE. NONSPECIFIC FAINT CALCIFICATIONS IN THE THALAMIC NUCLEI BILATERALLY. The EEG did not reveal any definite seizure activities, but did show attenuated background and slow wave activities suggesting underlying encephalopathic change. (Stipulated Medical Composite, Book 1 of 5, pp. 714-716, 748, and 797). Dr. Goss reported the results of his October 12, 2005, ophthalmology consultation, as follows: I saw your patient Samuel Anderson in the office on 10/12/05 . . . . There is a question as to how much he can or cannot see. On exam he was awake. He showed occasional posturing movements. He had occasional horizontal eye movements which did not appear to be related to external visual light stimulus. With a bright light into the eye, he did not show any significant blink reflex at all. The pupils were approximately 4ml ou and were sluggish to bright light. There were very occasional horizontal spontaneous roving movements, for the most part the eyes were relatively still and there was not a continuous horizontal nystagmus. The anterior segment showed conjunctiva to be quiet bilaterally. The left greater than right cornea showed some punctate changes in the epithelium with dryness particularly on the left. The anterior chamber was otherwise unremarkable, lens clear and fundus with DFE showed bilaterally the optic discs to be somewhat pale, diffusely. The retina was unremarkable. In terms of refractive error there may be a high myopia. Samuel has impaired visual responsiveness. This appears to be probably for the most part in the basis of central nervous system damage in the occipital cortex or subcortical "local areas." I say this because there is no spontaneous continuous nystagmus. However, there are probably is in addition an anterior pathway disease as well in relation to optic atrophy because of the pupils not responding in a normal manner as well. It is certainly possible this could be related to diffuse retinal inoxic injury as well. The only way to verify that by ERG. He has in addition as indicated in the above exam a bilateral corneal changes related to impaired blinking. I had a lengthy discussion with mom concerning the issues involved. I suggested we use topical drops, Refresh or Refresh Plus several times a day to keep the corneas moist. In regards to vision therapy there is no known experimentally proven ethicacious method for improving vision in these children, certainly visual stimulation may have a role, but its exact role is currently not known . . . . (Stipulated Medical Composite, Book 4 of 5, p. 2949). Dr. Barsoum-Hornsy reported the results of her February 22, 2007, ophthalmology consultation, as follows: EXAMINATION: Today shows some reaction to light in both eyes. Presence of severe Bell's phenomenon with both eyes turned up. External segment shows conjunctival congestion with superficial vascularization of the cornea of the right eye inferiorly at around the 3 - 6 o'clock position, left eye at around the 7 o'clock position. Corneal sensation is normal in both eyes. Iris and lens were normal. Fundus examination shows partial optic atrophy with pale optic nerve right and left eye. DIAGNOSIS: Partial optic atrophy, dry eye syndrome. (Stipulated Medical Composite, Book 5 of 5, p. 4113). The dispute regarding compensability A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth." § 766.31(1), Fla. Stat. See also § 766.309(1), Fla. Stat. Pertinent to this case, the Plan defines "birth- related neurological injury" to mean an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat.7 Here, there is no dispute that obstetrical services were delivered by a participating physician at birth. There is likewise no dispute that Sam suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which rendered him permanently and substantially physically impaired. Rather, the only dispute regarding compensability is whether the brain injury Sam suffered also rendered him permanently and substantially mentally impaired. As to that issue, Petitioners were of the view that Sam was not permanently and substantially mentally impaired, while Respondent and Intervenors were of a contrary opinion. Sam's mental condition To resolve whether Sam was permanently and substantially mentally impaired, the parties offered the medical records related to Sam's birth and subsequent development. Additionally, Respondent and Intervenor Hilderbrandt each offered the testimony of a pediatric neurologist to support their view that Sam was permanently and substantially mentally impaired, and Petitioners offered the testimony of Sam's current neurologist to support their position that Sam was not so impaired. Finally, Petitioners offered the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother to demonstrate that Sam has developed an alternative means of communicating with others by use of his tongue, and that this ability, coupled with his demonstrated ability to follow instructions, interact with his family and healthcare providers, and perform repeatable tasks in his various therapies, demonstrate Sam is not permanently and substantially mentally impaired. Called on behalf of Respondent was Raymond Fernandez, M.D., a physician board-certified in pediatrics (since 1973), and neurology with special competence in child neurology (since 1980), who has practiced pediatric neurology or held teaching positions at the University of South Florida (USF), College of Medicine, since 1976. Currently, and since 1993, Dr. Fernandez has practiced pediatric neurology with Pediatric Neurology Associates, P.A., in the Tampa Bay area, and since 1994, has held the position of Clinical Professor, Department of Pediatrics, USF College of Medicine. (Exhibit 2 (Dr. Fernandez' Curriculum Vitae (CV)) to Dr. Fernandez' deposition (Exhibit 60)). At NICA's request, Dr. Fernandez performed a neurological examination of Sam on November 15, 2007. The results of that examination were documented in Dr. Fernandez' written report (Exhibit 75), and addressed in Dr. Fernandez' deposition (Exhibit 60). Dr. Fernandez' report begins by noting Sam's birth history; admissions to Tampa General Hospital, St. Joseph's Hospital, and All Children's Hospital; and examinations by Doctors Casadonte, Rao, and Kornberg, as heretofore discussed. With regard to the CT scan ordered by Dr. Rao, and reported October 18, 2005, Dr. Fernandez noted it "showed a pattern consistent with remote and diffuse hypoxic ischemic injury with ventricular enlargement, periventricular leukomalacia, thalamic injury, and [W]allerian degeneration within the midbrain." Dr. Fernandez then proceeded to note Sam's developmental history, as related to him by Mrs. Anderson, the results of his examination, and his impressions, as follows: Mrs. Anderson stated that Samuel's developmental status "gets a little better all the time." He becomes more vocal, but he does not babble nor does he speak. Visual tracking is improving, and he is blinking more, per Mrs. Anderson's description. Samuel's hearing is judged to be good, and he responds more to sounds. He responds differently to family member's voices. He cries and grimaces when he is hungry, when his diapers are wet or soiled, and when he requires suctioning of his airway. At times, when upset, he might stiffen "like having a tantrum." Samuel does not smile or laugh, but Mrs. Anderson knows when he is content by his facial expression and by his pattern of breathing characterized by a sound that resembles a sigh. He has some vision and will follow light and moving objects, although with some delay. Samuel does not reach for objects. He sleeps on his back and tends to roll over onto his side when on an incline of about 45 degrees. When flat on the floor, he cannot roll over. He moves his legs spontaneously (left more than right). Mrs. Anderson stated that Samuel is able to roll from his abdomen to his back, but not vice versa, although he does not do this very often. He does not crawl. Head control is limited. Mrs. Anderson feels that on occasion Samuel responds to what is being said to him by either becoming upset or content, as evidenced by different facial expressions and breathing patterns. PHYSICAL EXAMINATION: On November 15, 2007, weight 24 pounds (average for 15 month old), length 90 cm (average for a 2-1/2 year old), head circumference 46.2 cm (average for a 1 year old).[8] . . . There was flattening of the right posterior quadrant of the skull. There was no ridging at suture lines. Eyes were open, but there was no visual tracking. The right pupil was 2-3 mm in diameter and incompletely reactive to light. The left pupil was about 4 mm in diameter and nonreactive to light. I was unable to adequately visualize his fundi in detail, but the optic nerves appeared to be pale.[9] Samuel has a disconjugate gaze with outward deviation of the eyes. The left eye moved fully horizontally with dolls head maneuver. The right eye abducted fully, but adducted only to the midline. There was upward eye deviation intermittently. Corneal reflexes were absent, and he did not blink. There was limited facial movement. Samuel's eyes tended to close spontaneously and slowly, but he did not actively blink at regular intervals. He did not turn toward sound. Gag reflex was absent. There was pooling of secretions and profuse drooling, requiring frequent suctioning. He did not swallow. Muscle tone was increased in all limbs (arms greater than legs and left side greater than right side). There was poor head control characterized by complete head lag when pulled to the sitting position. He was unable to sit. There was very little spontaneous movement. He did not reach. He was unable to roll over. There were no purposeful movements in response to stimulation. He consistently elevated his left leg in response to tactile stimulation over the left side of the forehead and at times in response to tactile stimulation over the left side of his chest. This occurred repeatedly and in stereotypic fashion, resembling reflex movement. Reflexes were brisk throughout, and there was clonus in both ankles. With respect to mental status, Samuel fluctuated from apparent wakefulness characterized by eyes being open and periods of apparent drowsiness or sleep characterized by slow gradual closure of the eyes. He made no sounds other than noisy breathing. I was not able to elicit any purposeful or meaningful response from Samuel. He did not track visually or respond to sounds or when his name was called. He did not smile or cry nor did he become anxious during the examination. Samuel required airway suctioning frequently, but maintained good color and regular respirations. The tracheostomy site was clean. His eyes were open much of the time, and I did not see him blink. Eyes were moist without obvious corneal clouding or corneal ulceration. The left eye was red, but there was no mucoid or purulent discharge. A PE tube was present in the right ear, but one could not be seen in the left ear. There was no heart murmur. Lungs were clear with only coarse transmitted upper airway sounds bilaterally. There were no abdominal masses. The G-tube site was clean. The spine was fairly straight. Arms were tight proximally and distally with some joint restriction. There were no dysmorphic features. There were no skin abnormalities of neurological significance. IMPRESSION: Based on history, clinical findings, and brain imaging. Samuel Anderson is substantially mentally and physically impaired. Neurological and developmental findings are due to the severe anoxic encephalopathy (oxygen deprivation) sustained during labor, resulting from uterine rupture. Based on the severity of Samuel's anoxic encephalopathy and current findings, he will always be totally dependent on others for his care. There is virtually no chance that there will be significant improvement in physical and mental neurological function. In his deposition, Dr. Fernandez reaffirmed his opinion that, considering Sam's "history, findings on examination, and brain imaging, all together," Sam was permanently and substantially mentally impaired. (Exhibit 60, p. 14). In so concluding, Dr. Fernandez noted Sam's history, as evidenced by the medical records heretofore discussed;10 that on examination he was unable to elicit any meaningful response from Sam; and record evidence of severe brain injury, with burst suppression on EEG, indicative of diffuse and severe brain injury; microcephaly, strong evidence of impaired brain growth; and evidence on brain imaging (CT scan) of diffuse brain atrophy and ventricular enlargement.11 Testifying on behalf of Intervenor Hilderbrandt was Michael Duchowny, M.D., a physician board-certified in pediatrics (since 1976), neurology with special competence in child neurology (since 1979), and clinical neurophysiology (since 1982). (Intervenor Hilderbrandt Exhibit 1, Dr. Duchowny's CV). Dr. Duchowny has practiced pediatric neurology since 1977, and has been on the faculty in the Department of Neurology at Miami Children's Hospital since 1980. Currently, Dr. Duchowny is a senior staff attending in neurology at Miami Children's Hospital, and directs the neurological training programs and the clinical neurophysiology fellowship program. He holds an appointment as a professor of neurology and pediatrics at the University of Miami Miller School of Medicine. Approximately 70 percent of Dr. Duchowny's time is spent in direct patient care, both inpatient and outpatient settings, including covering intensive care units and the emergency department for consultations. (Tr., pp. 180-183). At the request of Intervenor Hilderbrandt, Dr. Duchowny reviewed the medical records associated with Sam's birth and subsequent development, including reports of neurologic and other evaluations by Dr. Fernandez and Dr. Kornberg, as well as the results of neuro-imaging studies. Based on that review, as well as the review of pictures of various neuro-imaging studies, discussed infra, Dr. Duchowny was of the opinion that Sam sustained a permanent and substantial mental, as well as physical impairment. In so concluding, Dr. Duchowny noted that four pediatric neurologists had an opportunity to examine Sam, together with a pediatric rehabilitation specialist, pediatric ophthalmologist, and nurse practitioner, and their reports were all consistent with bilateral brain damage, with severe global delay, mental and motor. Dr. Duchowny also reviewed various diagnostic studies, including pictures of the CT films of November 27, 2004, and October 18, 2005,12 which he concluded evidenced abnormality consistent with permanent and substantially mental and physical impairment. In so concluding, Dr. Duchowny noted the scans were significant for severe bilateral, superficial and deep brain damage, with ventricles abnormally enlarged due to the destruction of surrounding brain tissue; deep atrophy and superficial atrophy of the cortex and underlying white matter; and scarring of the thalami, abnormalities inconsistent with normal mental, as well as physical function. Testifying on behalf of Petitioners was Sam's current neurologist William Hammesfahr, M.D. Dr. Hammesfahr received his M.D. degree in 1982, completed his neurology training in 1988, and entered private practice in St. Petersburg, Florida, in 1988. He has been board-certified in neurology and pain management since 1990. (Exhibit 1 (Dr. Hammesfahr's CV) to Exhibit 64). Dr. Hammesfahr has seen Sam on seven occasions, starting on February 2, 2007, for his "static vascular encephalopathy."13 According to Dr. Hammesfahr's records, Sam was initially evaluated on February 2, 2007, and on February 8, 2007, he was started on "nitrobid paste for its CNS [central nervous system] vasodilating properties," that resulted in improvement in swallowing and calmer breathing.14 On March 1, 2007, Dr. Hammesfahr noted Sam's breathing rate was improving, his spasticity had improved, and he was sleeping better. (Exhibit 64, pp. 32 and 33). At the June 3, 2007, office visit, Dr. Hammesfahr noted further improvement, with "developing motor skill ability and coordinating muscle activity." (Exhibit 64, p. 36). For the September 13, 2007, visit, Dr. Hammesfahr's office notes include the following, as having been reported to him (most likely by Sam's mother): Sam is doing much better. He is recognizing and following commands with his therapist, he understands language, he needs less suctioning than before and the family feels he is much more aware. (Exhibit 64, p. 46). At Sam's November 26, 2007, visit, Dr. Hammesfahr noted more voluntary motion, and at his last visit in March 2008, Dr. Hammesfahr testified that Sam was "a little more alert, . . . a little bit better trunk control, head control, tends to focus on his surroundings a bit more each [visit]." (Exhibit 64, pp. 55 and 57). Based on his evaluation of Sam, as well as his limited review of Sam's history and the results of his CT scans, as reported by the radiologist, Dr. Hammesfahr expressed concern that "what we're really dealing with is a child who's essentially locked in at this point." (Exhibit 64, p. 59). Dr. Hammesfahr concluded, based on his review of CT scan reports, that the reported findings did not correlate with Sam's physical disabilities, and that Sam's injury is probably not an injury to his brain but, rather, an injury to his brain stem. Consequently, Dr. Hammesfahr was of the opinion that Sam could have very good cognitive ability, but little or no physical ability to express it.15 (Exhibit 64, pp. 59-61). Notably, although Dr. Hammesfahr has observed some improvement in Sam's physical function, he shares the view of others that Sam is permanently and substantially physically impaired. Moreover, Dr. Hammesfahr does not foreclose the likelihood that Sam may ultimately be shown to be permanently and substantially mentally impaired. Rather, he articulates his opinion, as follows: I don't think you can say that he is -- While I believe that there's probably going to be some degree of permanent impairment to some degree, I don't think that you can make any kind of predictions of the future right now for him. I think, if anything, the evidence should be weighted in his favor that he's got a good chance of significant cognitive abilities in the future. (Exhibit 64, pp. 7 and 8). It is also notable that in formulating his opinions, Dr. Hammesfahr relied on the CT reports, and did not review the films or pictures of the films, as Doctors Fernandez and Duchowny did. Finally, it is worthy of note that Sam was never shown to have communicated with Dr. Hammesfahr by tongue movement and that what communication did occur appeared more an emotional response, than a reflection of a higher level of cognitive function.16 To further support their contention that Sam was not permanently and substantially mentally impaired, Petitioners offered the testimony of Sam's occupational therapist (Laura Francis), vision therapy teacher (Barbara Czarnopy), chiropractor (Daniel Towle, D.C.), home health nurse (Jennifer Harris, LPN), parents, and grandmother (Nancy Judge). In the experience of Ms. Francis, Sam would indicate he wanted to do an activity by thrusting his tongue to indicate yes, and not moving this tongue to indicate no. Other ways Sam responded or communicated were described by Ms. Francis, as follows: . . . Well, if he doesn't like something he'll cry or he'll turn colors. He gets like this purplish look to his face if he's mad at you or he'll scrunch his face if he's mad at you. He'll stiffen up if he's mad at you. And then when he's not mad at you and he likes what he's doing he's relaxed and, you know, yeah, he's more relaxed and just, not say easygoing, but, you know. (Exhibit 63, p. 15). Ms. Francis also noted that during the course of her occupational therapy with Sam she introduced a number of activities to improve his physical and sensory needs, including cause/effect toys. With regard to those toys, if Sam was familiar with it, Ms. Francis observed he could activate it on a regular basis, albeit with assistance (i.e., holding it in front of him). (Exhibit 63, pp. 10 and 23). Ms. Czarnopy, Sam's vision therapy teacher, is a homebound teacher of the visually impaired, is employed by the Pasco County School System, and has provided services for Sam once a week (Mondays, 12:00-1:00 p.m.) since August 2006. Ms. Czarnopy, like Ms. Francis, noted that Sam thrusts his tongue to indicate yes, and makes no movement to indicate no. Ms. Czarnopy also uses cause/effect toys during her sessions, to improve eye-hand coordination. The cause/effect toys Ms. Czarnopy uses, and has used for a year or longer, are designed for children 6 months to 18 months of age. According to Ms. Czarnopy, every time she demonstrates a new toy and every time she reintroduces the toy, she places Sam's hand on the lever to show him how to do it, and that he regularly activates the toy. (Tr., 129, 147, and 148). However, Ms. Czarnopy also agreed that under the Pasco County Schools ESE Program guidelines Sam is considered "profoundly mentally handicapped"17; that because of his injury Sam has suffered permanent mental impairment, although she declined to answer whether it was substantial18; that Sam's social and vocational development have been significantly impaired; and that, regardless of the degree of any cognitive impairment, Sam will, given his physical impairment, require substantial accommodation to exercise any cognitive functions he has. (Tr., pp. 155-157, 164, 165, and 169). Dr. Towle, a chiropractic physician, has been seeing Sam since April 2007, on a once-a-week basis, with the aim of providing some improvement to his physical function. According to Dr. Towle, Sam is "very aware of his surroundings," and "cooperate[s]" during therapy sessions. (Tr., pp. 21 and 25). As for his ability to express his needs, Dr. Towle was asked the following questions and gave the following responses: Q. Does Sam -- in your experience with his language that you have learned, does he have a way of telling you yes? A. Yeah. Well, he'll curl forward. Then there are times where -- it sounds like one of my cats -- he'll stick his tongue out at me. * * * Q. All right. Now, you said that Sam has this tongue thrust? A. Uh-huh. Q. What is the tongue thrust for? A. The nearest example I could give you would be a yes or a no. It would be -- no. I'll just leave it as a yes or no. You know, when it pops out -- I'm sorry, when his tongue sticks out, it's a yes. When he clinches his fists and throws them back, it means no. So, you know, it's kind of just paying attention to details. Q. Meaning as a healthcare provider paying attention to details? A. Yeah . . . . (Exhibit 68, pp. 23, 27). However, with regard to Sam's mental function, Dr. Towle felt unqualified to express an opinion, and declined to do so. (Exhibit 68, p. 28). Mrs. Harris, Sam's home health nurse for about 1 1/2 years, when asked whether Sam was "responsive" to her answered "yes." (Exhibit 66, pp. 9 and 10). In explaining how Sam was "responsive," Mrs. Harris testified: Q. . . . What do you mean by that when you express -- A. Him being responsive? Q. Sure. A. He was -- of course, during my care, I was there for day shift, and in the afternoons, when he went down for his nap, there would be times when I would put him in his crib, and he seemed extremely unhappy and would scream and cry until I would pick him up, at which point he would immediately be soothed. There were times when he would -- if I was singing to him, he would watch me or watch me walk across the room to get something, and that's, you know -- (Exhibit 66, p. 10). From Sam's grandmother (Nancy Judge), we learn that Sam will make some choices (i.e., when asked if he would like something) by thrusting his tongue for yes, and not thrusting for no; that Sam will likewise show a preference for a color, when asked "[d]o you like this color," by thrusting or not thrusting his tongue, but does not know colors; and that Sam was taught the tongue thrusting technique by Laura, his occupational therapist. (Exhibit 62, pp. 2, 5, 6, 21). We also learn that when Sam is angry or people do not pay him attention, Sam will display displeasure by "a really angry face and . . . huffing and puffing and crying and screaming." (Exhibit 62, pp. 7 and 20). From Sam's parents, we hear similarly regarding Sam's use of tongue thrusts, and his expression of anger or disappointment. (Tr., pp. 43-58); 101-104). The medical records and the testimony of the parties' experts (Doctors Fernandez, Duchowny, and Hammesfahr), have been thoroughly reviewed. Having done so, it must be resolved that among the physicians who addressed the likelihood that Sam was substantially mentally impaired, Doctors Fernandez and Duchowny were the more qualified to address the issue, their testimony was the more candid and compelling, and their testimony was most consistent with the medical records and the observations of other physicians who have treated Sam. Consideration has also been given to the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother regarding Sam's ability to communicate, to follow instructions and perform repeatable tasks. However, such proof was lacking in substance, and insufficient to outweigh the credible testimony of Doctors Fernandez and Duchowny, as well as the other evidence of record. Moreover, and found credible, were the observations of Doctors Fernandez and Duchowny, that if Sam's activities were indeed a reflection of a higher intellect, as opposed to a rudimentary or emotional response, they should be reproducible and objectively quantifiable on neurologic examination. (Exhibit 60, pp. 20 and 21; Tr., pp. 226 and 227). Notably, such proof has not been provided. Accordingly, it is resolved that, more likely than not, Sam is permanently and substantially mentally impaired, and the claim is compensable. The notice issue Apart from contesting compensability, Petitioners also sought an opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the health care providers. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)["A]s a condition precedent to invoking the Florida Birth- Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the health care providers complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearing, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2004), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes (2004), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[19] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so that they could furnish a copy of it to their obstetrical patients. (Exhibit 13). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provisions of the Plan, because it failed to "include a clear and concise explanation of a patient's rights and limitations under the plan." However, Petitioners' contention, as well as the argument they advance to support it,20 has heretofore been rejected. Dianderas v. Florida Birth-Related Neurological Injury Compensation Association, 973 So. 2d 523, 527 (Fla. 5th DCA 2007)("[T]he NICA "Peace of Mind" brochure satisfies the legislative mandate of providing a 'clear and concise explanation of a patient's rights . . . and limitations . . . under the plan.'"). Findings related to the participating physicians and the notice issue Mrs. Anderson received her prenatal care at West Coast Medical Group, Inc., d/b/a West Coast Obstetrics & Gynecology (West Cost OB/GYN), a practice that was owned and operated by Helen Ellis Memorial Hospital.21 West Coast OB/GYN maintained offices in Tarpon Springs, which were staffed by A. Trent Williams, M.D., Michelle Golding, CNM, Amy Harrington, CNM, and Christine Hilderbrandt, CNM, and an office in New Port Richey, which was staffed by Matthew Conrad, M.D., and Teresa Conrad, M.D. Notably, Doctors Williams, Matthew Conrad, Teresa Conrad, and Certified Nurse Midwife (CNM) Hilderbrandt were employees of Helen Ellis Memorial Hospital.22 (Exhibits 71 and 59, p. 10). Mrs. Anderson was seen at the Tarpon Springs office. Pertinent to the notice issue, the parties have stipulated that at all times material hereto Matthew Conrad, M.D., Teresa Conrad, M.D., and A. Trent Williams, M.D., were participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan. Moreover, the proof otherwise demonstrates that the fee for their participation for calendar years 2003 and 2004 was paid, and they were provided a certificate of their participation by NICA. (Pre-Hearing Stipulation, Admitted Facts; Exhibits 4 and 5). Moreover, while her status was not stipulated to, the proof demonstrates that the fee for CNM Hilderbrandt for participation for calendar years 2003 and 2004 was paid, and she was provided a certificate of her participation by NICA. (Exhibits 2, 3, and 4). Whether CNM Hilderbrandt otherwise met the requirements to qualify as a participating physician, will be addressed infra. On December 12, 2003, Mrs. Anderson presented to the Tarpon Springs office of West Coast OB/GYN for her initial prenatal visit. At the time, consistent with established practice, Mrs. Anderson was provided a number of forms to complete and sign, including a New Patient Registration Information Form, Consent to Treat, Assignment of Benefits, and Notice to Obstetrics Patients Regarding NICA (to acknowledge receipt of the NICA brochure). The Notice of Obstetric Patient form provided: West Coast Obstetrics & Gynecology Notice to Obstetric Patients Regarding NICA (see section 766.316, Florida Statutes) I have been furnished information by West Coast Obstetrics and Gynecology, prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that M. Conrad MD, T. Conrad MD, A. T. Williams MD, Michelle Golding, CNM, Amy Harrington CNM, and Christine Hilderbrandt CNM, are participating providers in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received a copy of the brochure by NICA. print patient name Patient social security number patient's signature date witness date (Exhibit 12). Mrs. Anderson signed and dated the form. Here, Mrs. Anderson acknowledged she signed the Notice to Obstetric Patient but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that the notice requirements of Section 766.316 have been met by Doctors Williams, Matthew Conrad, and Teresa Conrad, and by the certified nurse midwives (including CNM Hilderbrandt, if she were a participating physician, and required to give notice). Findings related to the hospital and notice On June 24, 2004, Mr. and Mrs. Anderson presented to Helen Ellis Memorial Hospital and pre-registered for Sam's delivery. There, the Andersons were interviewed by a registration clerk, who gathered certain demographic information (such as name, age, address, social security number, marital status, next of kin), employment information, insurance information, and delivery information (physician's name and expected due date), and entered it into a computer.23 The Andersons executed no documents at that time, and were not provided a NICA notice or a NICA brochure, although it was practicable to have done so. Regarding NICA notice, it was the hospital's policy when Mrs. Anderson pre-registered, as it is today, to only provide the NICA notice and a copy of the NICA brochure when the patient presented to the Women's Center (the eighth floor) in labor or with other pregnancy-related issues. (Exhibit 58, p. 21; Tr., 312). Apart from pre-registration, Mrs. Anderson did not present to the hospital until July 28, 2004. At 5:30 a.m., July 28, 2004, Mrs. Anderson presented to Helen Ellis Memorial Hospital complaining of irregular contractions for 24 hours, with increased intensity since 4:00 a.m. External fetal monitoring was applied, and revealed a fetal heart rate in the 140 beat per minute range, and vaginal examination revealed the cervix at fingertip to 1 centimeter, effacement thick, and the fetus high. Subsequent vaginal examinations at 6:15 a.m., and 7:45 a.m., were unchanged, nonstress test (NST) was reactive, and at 8:00 a.m., Mrs. Anderson was discharged home with a prescription for Ambien (a sleep aid) and instructions to rest. Diagnosis on discharge was false labor. Notably, when admitted on July 28, 2004, Mrs. Anderson executed (at 5:30 a.m.), a two-page form, that included a Consent to Treatment, and at some time thereafter, a NICA acknowledgment form (to acknowledge receipt of the NICA brochure). (Stipulated Medical Composite, Book 1 of 5, pp. 119 and 120). The NICA acknowledgment form provided: HELEN ELLIS MEMORIAL HOSPITAL Tarpon Springs, Florida I have been furnished information by Helen Ellis Memorial Hospital prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that Helen Ellis Memorial Hospital participates in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. I understand that for specifics on the program I can contact the Florida Birth-Related Neurological Injury Compensation Association (NICA) as described in the brochure prepared by NICA titled Peace of Mind for an Unexpected Problem. I further acknowledge that I have received a copy of the brochure. DATED this day of , (year) Patient's Signature Social Security Number (Exhibit 74). Mrs. Anderson signed the form, and entered her social security number. Here, Mrs. Anderson acknowledged she signed the NICA acknowledgment form, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure, as required by Section 766.316, Florida Statutes. However, whether such notice was efficacious will be addressed, infra. Following her discharge from Helen Ellis Memorial Hospital the morning of July 28, 2004, Mr. and Mrs. Anderson ate breakfast, and then returned to their house, where Mrs. Anderson took an Ambien and slept for the remainder of the day. During the night, Mrs. Anderson monitored her contractions, which continued as they had been, and spoke with either CNM Hilderbrandt or Golding, who advised her, since she was to be induced in a few days anyway, to return to the hospital and have the baby. (Tr., pp. 36 and 37). Mrs. Anderson returned to Helen Ellis Memorial Hospital at 3:30 a.m., July 29, 2004. At the time, vaginal examination revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high, and uterine contractions were noted as irregular (inconsistent with active labor). Mrs. Anderson executed a Consent to Treatment form at 4:20 a.m., and was admitted for observation, and at some time thereafter, Mrs. Anderson signed a NICA acknowledgment form (to acknowledge receipt of the NICA brochure), identical to the form she signed on July 28, 2004. Again, Mrs. Anderson acknowledged she signed the NICA acknowledgment form but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure. However, whether such notice was efficacious will be addressed, infra. Here, given the circumstances, including the inherent distractions associated with Mrs. Anderson's presentation on July 28, 2004, and July 29, 2004, as well as the lack of proof as to when NICA notice was provided and the circumstances under which it was provided, it cannot be resolved, with the requisite degree of certainly, that the giving of notice was efficacious. Nevertheless, were these the only contacts Mrs. Anderson had with the hospital, it would likely be concluded that it was not practicable to have given notice earlier. However, since Mrs. Anderson pre-registered for the delivery of Sam on June 24, 2004, and she was not provided a NICA notice or brochure, although it was practicable to have done so, it must be resolved on the facts of this case that the hospital failed to comply with the notice provisions of the Plan.24 The participating physician issue Under Subsection 766.314(4)(c), Florida Statutes, a certified nurse midwife may be deemed a "participating physician," under the following circumstances: . . . Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised by a participating physician who has paid the assessment required by this paragraph and paragraph (5)(a). Supervision for nurse midwives shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features . . . . To support the conclusion that CNM Hilderbrandt would be supervised by a participating physician, who would be easily available, Intervenor Hilderbrandt offered a Statement of Supervising Physician, signed by A. Trent Williams, M.D., and herself, on April 10, 2002, and April 9, 2002, respectively, which provided: A. Trent Williams, M.D., license #ME0065859, of 1501 S. Pinellas Avenue, Suite T, Tarpon Springs, FL 34689 maintains a primary supervisory relationship with Christine Hilderbrandt, ARNP-CNM, license #ARNP2729292, of the same address. All functions contained within the Practice Guidelines may be performed under general supervision. The statement further provided that: The following physicians also agree to perform in a supervisory capacity under the Practice Guidelines for the above-named ARNP-CNM when she administers to the needs of her patients within the Helen Ellis Memorial Hospital setting during their respective on-call rotations: That provision was signed by Dr. Matthew Conrad, Dr. Teresa Conrad, and Dr. S. Tatiana Goodwin (who was associated with the practice at that time). (Exhibit 7). To support the conclusion that there existed a "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," CNM Hilderbrandt presented a document titled "West Coast Obstetrics & Gynecology, Certified Nurse Midwife Protocol." The document was labeled "edit copy . . . a. t. williams," contained numerous handwritten revisions, questions, and edits, and was not signed or dated. CNM Hilderbrandt described the document as a draft she and Dr. Williams worked on; conceded it was not the final document, which she averred was in Dr. Williams' office; and explained she did not produce the final draft because she did not have it. (Tr., pp. 257-261). Notably, CNM Hilderbrandt made no showing of what efforts, if any, were made to secure the final document from Dr. Williams or West Coast OB/GYN, who were parties to these proceedings, or account for its unavailability. In addition, CNM Hilderbrandt offered testimony that she signed protocols each year, and relied on the office manager to file them with the State of Florida, Board of Nursing, as required by Chapter 464, Florida Statutes, and Florida Administrative Code Rule 64B9-4.010.25 (Exhibit 59, pp. 24-26; Tr., pp. 244 and 245). However, the proof established that no protocol regarding CNM Hilderbrandt was filed in 2002 or 2003, and an established protocol (as between Dr. Williams and CNM Hilderbrandt), that was filed with the Board of Nursing on April 13, 2004 (and dated April 1, 2004), was apparently destroyed, albeit prematurely given the Board of Nursing's four year retention policy. (Exhibit 9). Nevertheless, Florida Administrative Code Rule 64B9-4.010(3) requires that "[a]fter the termination of the relationship between the ARNP and the supervising professional, each party is responsible for ensuring that a copy of the protocol is maintained for future reference for a period of four years." Here, CNM Hilderbrandt did not produce any protocol because "I don't have them." (Tr., p. 257). Again, she did not explain their lack of availability, or what efforts, if any, were made to secure copies from Dr. Williams or West Coast OB/GYN. Given the proof, CNM Hilderbrandt demonstrated that she would be supervised by a participating physician, who would be easily available. However, given CNM Hilderbrandt's failure to offer the protocols she claimed were in place, the proof failed to establish that there existed "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," as required by Section 766.314(4)(c), Florida Statutes, and therefore failed to establish that CNM Hilderbrandt was a "participating physician" at the time of Sam's birth.26 Miscellaneous matters Apart from resolving whether the hospital and the "participating physicians" complied with the notice provisions of the Plan, Petitioners also requested that the administrative law judge resolve whether West Coast Medical Group, Inc., and Holly Maria Bauer, R.N. (a nurse who assisted during Mrs. Anderson's labor and delivery at Helen Ellis Memorial Hospital on July 29, 2004), complied with the notice provisions of the Plan. However, West Coast Medical Group, Inc., was not a hospital, and not required to contribute to the NICA program, and Nurse Bauer was not shown to have been eligible to participate, or to have elected to participate. Consequently, they had no obligation to give notice. § 766.316, Fla. Stat. ("Each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited . . . no-fault alternatives for birth-related neurological injuries.") Petitioners have also requested that the administrative law judge resolve whether the hospital, participating physicians, CNM Hilderbrandt, West Coast Medical Group, Inc., and Nurse Bauer are entitled to immunity under Section 766.303(2), Florida Statutes. (Petition for Determination of Availability of NICA Coverage, paragraphs 41 b and e; Prehearing Stipulation, page 2, Petitioners' Statement of the Nature of the Controversy). However, the jurisdiction of an administrative law judge is limited to whether the infant has sustained a birth-related neurological injury, whether obstetrical services were delivered by a participating physician at the birth, how much compensation is awardable, and, if raised, whether the notice provisions of the Plan were satisfied. § 766.309(1), Fla. Stat. Whether any person or entity is entitled to invoke the immunity from tort liability provided for in Subsection 766.303(2), Florida Statutes, is not within the jurisdiction of the administrative law judge to resolve. Depart v. Macri, 902 So. 2d 271 (Fla. 1st DCA 2005); Gugelmin v. Division of Administrative Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002). Consequently, these issues will not be addressed.
The Issue At issue in this proceeding is whether Giuliano Gugelmin, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Mauricio Gugelmin and Stella Gugelmin are the parents and natural guardians of Giuliano Gugelmin (Giuliano), a minor. Giuliano was born a live infant on July 14, 1994, at South Broward Hospital District, d/b/a Memorial Hospital West (the Hospital), a hospital located in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Giuliano was Eric N. Freling, M.D., who was at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who have suffered 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 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, the parties have stipulated that Giuliano suffered a "birth- related neurological injury," as that term is defined by the Plan, and NICA proposes to accept the claim as compensable. The parties' stipulation is grossly consistent with the proof and, consequently, it is resolved that NICA's proposal to accept the claim as compensable is approved. While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in the collateral civil action by claiming that the health care providers failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged, proper notice was given. Regarding the notice issue, it must be resolved that the proof failed to demonstrate, more likely than not, that Dr. Freling provided Mrs. Gugelmin any notice of his participation in the Plan or any explanation of a patient's rights and limitations under the Plan. Indeed, the more compelling proof was to the contrary. Moreover, there was no proof to support a conclusion that Dr. Freling's failure to accord notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. While Dr. Freling failed to give notice, the Hospital did, as required by law, provide timely notice to Mrs. Gugelmin as to the limited no-fault alternative for birth-related neurological injuries. That notice included, as required, an explanation of a patient's rights and limitations under the Plan, and was given at 11:45 a.m., July 13, 1994, shortly after Mrs. Gugelmin's admission to the hospital (which occurred at approximately 11:22 a.m., July 13, 1994). Giuliano was delivered at 12:25 a.m., July 14, 1994.
Findings Of Fact By stipulation dated August 26, 1993, and filed August 27, 1993, petitioners and respondent agreed "that for purposes of the disposition of this cause, relative to a ruling on that certain Motion to Dismiss filed by the Respondents under the date of March 17, 1993, the weight of Raquel Solorzano, at birth was 2,296 grams."
The Issue The issue to determine in this matter is whether the minor child should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Association Plan.
Findings Of Fact On October 16, 2018, Petitioner Brandi L. Jennings was admitted to St. Joseph's to deliver her child (Killian). As part of her admission that day, Ms. Jennings signed a Receipt of NICA Information ("Receipt") presented to her by St. Joseph's pursuant to section 766.316. The Receipt notified Ms. Jennings that St. Joseph's was furnishing her information prepared by NICA, and stated that "certain limited compensation is available in the event certain types of qualifying neurological injuries may occur during labor, delivery or resuscitation." By providing Ms. Jennings this Receipt, St. Joseph's complied with the terms of the NICA notice requirement set forth in section 766.316. On October 18, 2018, Ms. Jennings gave birth to Killian at St. Joseph's. Killian was born a live infant weighing at least 2,500 grams. However, during the course of labor, delivery, or resuscitation in the immediate postdelivery period, Killian sustained an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury, which rendered him permanently and substantially mentally and physically impaired. (Killian was ultimately diagnosed with hypoxic-ischemic encephalopathy.) As such, Killian's injury qualifies as a "birth-related neurological injury" as defined in section 766.302(2). Killian was delivered by obstetrician, Kathryn Leenhouts, M.D. Dr. Leenhouts was the only physician who directly provided obstetrical services to Ms. Jennings in the course of her labor and delivery or in the immediate postdelivery period at St. Joseph's. At the time of Killian's birth, Dr. Leenhouts was not employed by St. Joseph's. Instead, Dr. Leenhouts worked for Exodus Women's Center, where she, along with other members of that group, had previously applied for and were granted staff privileges at St. Joseph's. During the year of Killian's birth (2018), Dr. Leenhouts did not pay the assessment set forth in section 766.314, which is required for participation in the NICA Plan. Neither was any evidence offered to establish that Dr. Leenhouts was exempt from payment of the assessment for 2018. Consequently, Dr. Leenhouts was not a "participating physician" in the Plan as that term is defined by section 766.302(7). St. Joseph's, on the other hand, was current with its assessment payments under section 766.314 for 2018. Based on "all available evidence" in the record, Petitioners' claim does not meet the statutory requirements for compensability under the Plan. The evidence produced at the final hearing establishes that the obstetrical services provided at Killian's birth were not delivered by a "participating physician" as defined in section 766.302(7). Therefore, Petitioners' claim does not meet the requirements for compensation under section 766.309(1), and Killian is not eligible for an award of NICA benefits under section 766.31.
