The Issue Whether Hunter Lewis, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Angel Lewis and Jerry Lewis, are the parents and natural guardians of Hunter Lewis, a minor. Hunter was born a live infant on June 2, 2000, at Tallahassee Memorial Hospital, a hospital located in Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Hunter's birth was Arthur S. Clements, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.1 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. The cause and timing, as well as the significance of Hunter's neurologic impairment To address the cause and timing of Hunter's neurologic impairment, as well as its significance, Petitioners offered selected medical records relating to Hunter's birth and subsequent development (Petitioners' Exhibit 1); the Verified Medical Opinion of Richard J. Inwood, M.D., a neonatologist (Petitioners' Exhibit 2); and the deposition of Donald C. Willis, M.D., an obstetrician (Petitioners' Exhibit 3). In turn, Respondent offered the deposition of Paul R. Carney, M.D., a pediatric neurologist (Respondent's Exhibit 1). As for the significance of Hunter's impairments, it was Dr. Carney's opinion, based on the results of his neurologic evaluation of November 21, 2002, that Hunter's assessment "indicates substantial cognitive and language impairment," but "very mild long tract neurological findings." Dr. Carney described Hunter's developmental delay as static, as opposed to progressive, and he ventured no opinion as to the cause or timing of Hunter's impairments. As for Dr. Inwood, he was of the opinion that: . . . Hunter Lewis [ ] was delivered by induced labor prior to 38 weeks and had immature lungs. Because of the immaturity of the lungs he suffered hypoxic insult and, to a reasonable degree of medical probability, sustained significant neurological injury. This injury would not have occurred had his delivery been delayed until he had demonstrated lung maturity. His problems are not congenital and did not occur during labor or delivery, but rather after delivery . . . . Notably, Dr. Inwood did not further address Hunter's neurologic injury or, stated otherwise, did not speak to whether in his opinion, Hunter suffered both cognitive and motor impairment and, if so, the significance of each. As for Dr. Willis, he was of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with labor, delivery, or resuscitation immediately following Hunter's birth. Significantly, the medical records are consistent with the opinions of Doctors Inwood and Willis that the cause and timing of Hunter's impairment was not associated with labor, delivery, or resuscitation, and with the opinion of Dr. Carney that, while Hunter may demonstrate substantial cognitive delay, his motor impairment is mild. Given the record, it must be concluded that the proof demonstrated, more likely than not, that Hunter's impairments were not occasioned by an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, and that he is not permanently and substantially physically impaired.
The Issue Whether Yandel Torres-Santiago, a minor, sustained a compensable injury under the Florida Birth-Related Neurological Injury Compensation Plan (Plan); and Whether appropriate pre-delivery notice was provided to the mother and obstetrical patient, Yolanda Santiago.
Findings Of Fact Stipulated and Threshold Matters Petitioners, Yolanda Santiago, and Wilfredo Torres, are the parents and natural guardians of Yandel Torres-Santiago, a minor.5/ Winnie Palmer Hospital for Women & Babies is a Florida- licensed hospital, participating in the NICA Plan, and all individual Intervenors (Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny A. Danna, M.D.; and Amanpreet S. Bhuller, M.D.) were at all times material participating physicians under the NICA plan. (TR-46-47). Yandel was born at Winnie Palmer Hospital for Women & Babies on July 19, 2008. (Stipulated among the parties in their respective pre-hearing statements). Yandel was delivered vaginally. (Stipulated among the parties in their respective pre-hearing statements). Obstetrical services were delivered by Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny Danna, M.D.; Amanpreet S. Bhuller, M.D.; and George Amyradakis, M.D., in the course of Ms. Santiago's labor and delivery.6/ All of the foregoing physicians were participants in the NICA Plan at all times material. The physician providing obstetrical services at birth was George Amyradakis, M.D., a hospital "resident," with Norman Lamberty, M.D., as the attending physician.7/ Yandel was the result of a single gestation, and his birth weight was 2,735 grams. (Stipulated among the parties, and see TR-15). Yandel's Apgars8/ at birth were 3/7. (Stipulated among the parties). Yandel suffered from neonatal alloimmune thrombocytopenia at birth. (Stipulated among the parties). Yandel is permanently and substantially mentally and physically impaired. (Stipulated among the parties). Yandel's medical condition and treatment is documented in the birth records of Winnie Palmer Hospital for Women & Babies. (Stipulated among the parties). Wilfredo Torres and Yolanda Santiago have been together and/or married for 25 years. They had three healthy sons prior to Yandel's conception. Yolanda Santiago suffered two miscarriages prior to Yandel's conception. Findings of fact as to compensability In July 2008, while pregnant with Yandel, Yolanda Santiago was 41 years old with diabetes mellitus and ulcerative colitis. Hypertension developed at 37 weeks' gestation. She was admitted to Winnie Palmer Hospital for Women & Babies on July 17, 2008, with pre-eclampsia.9/ Her blood pressure on admission was elevated to 152/100, and she was complaining of a headache. Magnesium sulfate was started for management of preeclampsia and labor was induced. On Ms. Santiago's admission to the hospital on July 17, 2008, Drs. Jeannie McWhorter and Stephanie Ladowski were attending obstetricians. On July 18, 2008, Dr. Martha Kuffski was the attending obstetrician. Yandel's baseline fetal heart rate (FHR) during labor was 130 to 140 beats per minute (BPM). Overall, there was reduced FHR variability during labor. Severe variable FHR decelerations with FHR below 60 BPM occurred prior to Yandel's delivery. On July 19, 2008, Ms. Santiago's membranes were artificially ruptured, and at 3:41 p.m., Yandel was delivered vaginally without forceps. The attending physician at Yandel's birth, Dr. Lamberty, and Ms. Santiago recognized each other in the delivery room at Winnie Palmer Hospital for Women & Babies. Dr. Lamberty described Yandel's delivery by a hospital resident as "completely uneventful." At birth, Yandel had visible petichiae. There also were pale bluish, non-blanching spots on his right axilla and over the left chest; slightly decreased tone; and bruising of the face and head, but his scalp was not torn and no physical abnormalities were noted. Petichaie are pinpoint red spots marking tiny hemorrhages under the skin. Some testifying physicians thought they were, more likely than not, evidence that a brain hemorrhage also could have occurred during labor and delivery. Others did not consider that an obvious connection, and felt that thrombocytopenia alone can cause a petechial rash. Yandel required only manual stimulation and minimal oxygen in the first minutes of life. He was quickly stabilized and breathing room air. Yandel's Apgar scores of "3" at one minute and "7" at five minutes do not indicate distress. Respiratory effort was "weak" at birth, but respiratory effort improved and was noted to be good at five minutes of age. Yandel's "7" Apgar score at five minutes indicated that Yandel was pink, had a good heart rate, good respiratory effort, and was breathing on his own. Yandel never required intubation or placement on a ventilator in the delivery room. Nonetheless, he was transferred to the transitional nursery, instead of being transferred to the new-born nursery, which provided a lesser level of care than the transitional nursery, or to the new-born intensive care unit (NICU), which provided a higher level of care than the transitional nursery. Yandel was transported to the transitional nursery in an open crib and breathing room air. There is no evidence of continued or continuous resuscitative efforts or of any need for resuscitative efforts after Yandel was stabilized in the delivery room and no evidence of any need for resuscitative efforts during his transfer to the transitional nursery. Yandel arrived at the transitional nursery breathing on his own and in presumably good condition, except for some bluing of the extremities, but his condition declined several hours later. According to NICA's witness, Dr. Donald C. Willis, a board-certified obstetrician with special competence in maternal-fetal medicine, the "immediate postdelivery resuscitative period" would have ended for Yandel with the five- minute Apgar recordation. All of the other physicians who testified on the subject considered the end of resuscitation in the immediate postdelivery period to have occurred when Yandel was stabilized. As might be expected, there was some disagreement as to what constituted stabilization. The four physicians deposed in this case for their expertise in determining condition and causation were the obstetrician, Dr. Willis; Dr. Michael Duchowny, a pediatric neurologist; Dr. Claudio Sandoval, a pediatrician and pediatric hematologist-oncologist; and Dr. Robert DiGeronimo, a neonatologist. Their respective testimonies as to what each believed happened after Yandel left the delivery room and regarding the etiology of Yandel's impairments differ in many respects, but all four physicians clearly and unequivocally agree that Yandel was born with a condition termed "alloimmune thrombocytopenia"; that alloimmune thrombocytopenia is an abnormal condition; and that Yandel's alloimmune thrombocytopenia existed in utero and at his birth. Yandel's fetal alloimmune thrombocytopenia existed in the uterus and constituted neonatal alloimmune thrombocytopenia in the newborn. All the testifying physicians agreed that alloimmune thrombocytopenia is not "genetic," in that it does not pass as a defect of the genes from parent(s) to child. All were willing to call the condition "congenital" or "hereditary," but several preferred the term, "acquired condition" as well. Nonetheless, it is clear that the condition is "acquired" by the infant before birth, and the only difference between fetal alloimmune thrombocytopenia and neonatal alloimmune thrombocytopenia is that the child has been born. It is, however, a condition that is treatable after birth. The Legislature has not defined the word, "congenital" within sections 766.301-766.316, nor indeed, anywhere within the current statutes. Dorland's Illustrated Medical Dictionary, page 1988 (28th ed. 1994), defines "congenital" as, "existing at, and usually before, birth; referring to conditions that are present at birth, regardless of their causation. Cf. hereditary." Apparently, there are other forms of thrombocytopenia which may develop in different ways. However, alloimmune thrombocytopenia is a condition acquired in the mother's uterus, due to incompatibility between the mother's blood platelet type and that of the baby. It occurs when the baby inherits the same platelet type as the father, whose platelet type is incompatible with that of the mother. The mother's blood crosses the placenta and attacks the baby's platelets as if the baby's platelets were foreign bodies. The mother's antibodies then proceed to destroy the platelets of the baby, resulting in thrombocytopenia (low platelet count). Alloimmune thrombocytopenia occurs in less than one in 1,000 births. For the first hour and 20 minutes after birth on July 19, 2008, Yandel was in the transitional nursery. He was somewhat bluish during this time, but breathing on his own. At approximately 5:00 p.m., an assessment (history and physical) was performed by a pediatrician who concluded that Yandel was stable. At that time, Yandel's eyes, lungs, heart, and abdomen were recorded as normal. His trunk, spine, and extremities were recorded as normal. His head and neck were normal. His anterior fontenels10/ were recorded as "soft and flat," and thus, normal. The fontenels permit a baby's head to pass through the birth canal with minimal "molding" of his head and permit the baby's brain to grow as his head and body grow and mature after birth. From the 5:00 p.m., assessment, it appears that no bulge was visible at that time as might have been expected with bleeding or swelling in Yandel's head. Yandel had normal grasp, normal sucking instinct and normal suck, and he could move all his extremities. His vital signs were recorded as "normal." He was fed 20 ml of formula and transferred to the newborn nursery. Between 4:05 and 7:30 p.m., of July 19, 2008, Yandel's heart rate decreased from 150 to 118. At four hours of life, (approximately 7:00 p.m., on July 19, 2008) Yandel had a brief episode of apnea (interruption in the ability to breathe). He desaturated (in this context, "lost oxygen" in his blood) to 69%. Thirty minutes thereafter, he had a 20-second desaturation episode to 44%, and was placed on supplemental oxygen. He experienced two more desaturation episodes lasting 40 and 45 seconds. At 10:00 p.m., on July 19, 2008, Yandel's blood platelet level was 41,000. The normal range is 150,000 to 350,000. His hemoglobin and hematocrit levels were also low at 13.3 and 39.8, respectively. At approximately 1:42 a.m., on July 20, 2008, Yandel was transferred to NICU, on a ventilator, but his fontenels were still open, soft and flat. He was awake and alert and with his reflexes intact, and stable, but he was recorded as having intermittent tremors. No bleeding was reported. At 3:10 a.m., on July 20, 2008, at approximately 12 hours of life, Yandel's platelet level was 19,000, with hemoglobin of 11.7 and hematocrit of 35.9. The foregoing measurements constitute a 50% drop in platelet count over a period of five hours and are consistent with loss of oxygen through a brain bleed. At 8:11 a.m., on July 20, 2008, a head ultrasound confirmed that Yandel had experienced a large intraventricular and intraparietal brain bleed with a midline shift. At 10:14 a.m., on July 20, 2008, an ultrasound encephalogram report stated that the examination was abnormal with large amounts of blood in the lateral third ventricle of Yandel's brain. At 5:27 p.m., on July 20, 2008, Dr. Olavarra noted Yandel's fontenels were full and tight, which meant something (in this case, blood) was filling up the brain and its ventricles. At 3:50 a.m., on July 21, 2008, Yandel received a transfusion of blood products which increased his platelet count to 235,000, but he had lost blood volume. At 8:54 a.m., on July 21, 2008, the extent of the brain bleed was confirmed by a CT scan of Yandel's head, which revealed blood in the lateral and third ventricles and the parietal lobes. On July 21, 2008, a pediatric hematologist diagnosed the brain bleed as resulting from alloimmune thrombocytopenia. The parties and their respective experts have different views both of when Yandel's brain bleed began and of at what point the bleed caused injury to his brain. Respondent NICA's and Intervenors' experts assert that the brain bleed began while Yandel was passing through the birth canal and occurred due to the "mechanical forces" or "shearing effect" of the contractions of a normal vaginal delivery, whereby the infant's soft head, followed by his body, passed through the mother's pelvis and vagina, resulting in a long- term, continuous bleed. Petitioners advocate for a finding that there was a spontaneous bleed at some point beyond the period of "labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." (The statutory period). They contend that the bleed began no sooner than four hours after birth; after Yandel had been stabilized; and after the immediate postdelivery resuscitative period had ended. They further suggest that the injury to Yandel's brain may have occurred even beyond the lapse of four hours. Obstetrician Dr. Donald C. Willis reviewed Yandel's and Ms. Santiago's medical records for Respondent NICA. He testified that, despite Yandel's improving Apgar scores within five minutes of birth at 3:41 p.m., on July 19, 2008; favorable newborn pediatric assessment at approximately 4:00 p.m.; and stabilized condition for nearly four hours on July 19, 2008, nonetheless, within reasonable medical certainty, significant brain hemorrhage had occurred to Yandel during labor and delivery because, with thrombocytopenia, the most common time for hemorrhage is at the time of delivery, when the baby's head has to mold into the birth canal. Dr. Willis also suggested that even the brief loss of oxygen during any normal uterine contraction could constitute sufficient loss of oxygen to produce the brain bleed discovered much later. Dr. Willis' testimony suggests that any baby suffering from fetal alloimmune thrombocytopenia will suffer a mechanical brain hemorrhage and subsequent oxygen deprivation through the normal birthing process, in which case, Yandel's situation would seem to represent a congenital condition not subject to compensation under the statute, but he also stated that labor and birth are simply the most common time for such babies to hemorrhage in the brain. There is no dispute that alloimmune thrombocytopenia, acquired by an infant in utero, makes that infant more susceptible to a brain bleed during birth than an infant without such acquired condition. However, all four physicians, including Dr. Willis, concede that not every baby with alloimmune thrombocytopenia suffers a brain bleed due to an uneventful vaginal delivery, or even suffers apneic episodes, as did Yandel. Dr. Claudio Sandoval is an eminent pediatric hematologist-oncologist. Although he deferred to either a neonatologist (such as Dr. DiGeronimo) or a pediatric neurologist (such as Dr. Duchowny) to determine whether or not Yandel had a bleed in his brain at the time of birth significant enough to have caused brain damage more than 12 hours later, Dr. Sandovol provided insight that there is a difference between some loss of oxygen versus mechanical injury to the brain via a brain bleed. Dr. Sandoval's opinion, in sum, was that the statutory period for compensability ended once the baby was stabilized in the delivery room. He placed the beginning of Yandel's brain bleed at some point between the complete blood count (CBC) reading of 41,000 platelets at approximately 10:00 p.m., on July 19, 2008, and the CBC reading of 19,000 platelets the next morning at about 3:00 a.m., on July 20, 2008. Dr. Sandoval's reasoning was that the injury had to have occurred at that point in time, because only at that point in time had the bleed reached "critical mass" sufficient to cause oxygen deprivation to the brain. He opined that although thrombocytopenic babies may be susceptible of bleeding, very few thrombocytopenic babies have a bleed into their brains as a result of the birthing process. He relied on the NICU admission assessment at 1:42 a.m., on July 20, 2008, that the child was stable with no evidence of active bleeding, and best-timed Yandel's injury caused by oxygen deprivation to when Yandel's fontenels began to bulge from the released blood. Dr. Michael Duchowny is a pediatric neurologist, selected by Respondent NICA. Like Dr. Sandoval, selected by Petitioners, Dr. Duchowny also concluded that the claim was not compensable because the injury occurred outside the statutory period. He assessed the birth record and observed an older Yandel via video. Dr. Duchowny could not make up his mind as to whether or not alloimmune thrombocytopenia was, or was not, congenital (see his deposition, pages 53, 54, and 71), but he stated that some type of insult of record, other than the birth itself, was necessary for him to reach a conclusion that the damage to Yandel's brain occurred during the birth. Dr. Duchowny found no such insult in the birth records, and concluded that Yandel suffered a spontaneous bleed occurring when Yandel's platelet count fell below 20,000. Although at one point, in a very long deposition, he was mistaken as to the point in time at which the platelet count fell below 20,000 (he believed the platelet count was continually dropping through the 3:10 a.m., platelet count at 12 hours of life until the baby was transfused at 7:45 p.m., on July 20, 2008) Dr. Duchowny ultimately timed Yandel's brain damage as beginning when the desaturations began to occur and the first apneic episodes were recorded. On the other hand, neonatologist Dr. DiGeronimo acknowledged that the mechanical forces of labor and birth can cause immediate brain damage in a baby with alloimmmune thrombocytopenia and opined that a brain capillary may have been torn by the shearing forces of labor and delivery (mechanical injury) and bled out. He also opined that apnea is not restricted to thrombocytopenic babies or to babies with brain bleeds. Apnea can occur for a wide range of reasons and with a wide range of manifestations and etiologies. Dr. DiGeronimo also considered it common for newborns who have sustained a brain injury at birth to not evidence any symptomatology of that bleed until hours later: Q: Why did it take four hours after birth for him to start having an apnea event as a result of his brain injury? A: [Dr. DiGeronimo] So apnea is just one sign of a brain injury, and there are babies that often have significant brain injury that don't have any apnea or don't present with apnea. Apnea can also occur for different reasons outside of brain injury. Babies -- some babies just have apnea. But it's -- it's very well known if you look at brain injury, babies go through kind of an acute injury and then they have a kind of a latent period where they recover and often aren't symptomatic, or improve transiently, and then subsequently as brain injury continues and the cells of the brain suffer ongoing injury and don't recover, their brain essentially goes into a secondary phase of injury, and this is typically when you see seizures and you may see apnea. And that can be a variable period, but it's very common in clinical practice where you'll have a baby that will have an insult and then will look better for a period of time, and then subsequently will get symptomatic with systems. [sic] Q: Is that the course that Yandel Torres-Santiago took after his birth? A: Yeah. I believe there was a component of that. I -- you know, I still think he was symptomatic at birth, he required resuscitation, but he did have a period where he appeared stable enough where they sent him to the transition nursery, but -- but then obviously later on and not too long a period developed apnea, and then later on clinical seizures as well, which is consistent with kind of the timing of a brain injury occurring during the labor and delivery process. The division of opinion of the several experts is troubling, particularly since the pediatric oncologist- hemotologist, Dr. Sandoval, deferred to either a neonatologist or a pediatric neurologist and those two specialists disagree on causation and timing of the insult to the brain. It is tempting to find that Dr. Duchowny's mistake as to when Yandel's platelet count first fell below 20,000 is cause to discount the remainder of his testimony, but it is more reasonable to say that his testimony, as a whole, could support a spontaneous brain hemorrhage at 12 hours of life as much as it could support a slow bleed beginning earlier, at around four hours of life, and does not support a finding that a mechanical injury occurred in the statutory period. The undersigned has thoroughly reviewed voluminous medical records and carefully assessed, compared, and weighed all the threshold assumptions of the various medical experts, with particular attention to those of Dr. Willis and Dr. DiGeronimo, whose medical disciplines (obstetrics and neonatology, respectively) cover the time period of labor, delivery and newborn care when the intracranial bleed and resulting damage are alleged to have occurred. According to Drs. Willis and DiGeronimo, alloimmune thrombocytopenia, without any activity by the obstetricians, accounted for an initial insult to Yandel's brain during labor or delivery. However, it is noteworthy that neither of these specialists was able to point to a specific objective incident during labor, delivery, or resuscitation in the delivery room when they alleged the "mechanical shearing" injury to Yandel's brain occurred. Also, neither expert had correlated any statistical probability that there had been a tear to the brain as described by Dr. DiGeronimo. In sum, their assessment was that not all alloimmune thrombocytopenic babies suffer an insult to their brains during labor and delivery, but most who do suffer such an insult suffer it in that time frame. While their testimony suggests that there may be an unquantified statistically higher occurrence of injury in such babies across the spectrum of such births, it is not objective evidence of an actual insult/injury to Yandel's brain within the statutory period. If anything, it tends to demonstrate the existence of a congenital abnormality without which the ultimate injury and impairment would not have occurred.11/ In contrast, the objective records show Yandel was an infant compromised by thrombocytopenia, a noncompensable congenital abnormality. He had an uneventful labor and delivery without external mechanical intervention by the obstetricians, such as forceps or vacuum extraction. There was no identifiable obstetrical incident, event, or apparent complication during labor, delivery, or the immediate postdelivery manual stimulation, which constituted his immediate postdelivery "resuscitation", which can be pointed-to as an insult to his brain or spinal cord. There was no observable injury to his head or scalp upon delivery. His petechial rash did not necessarily evidence injury to his brain. There was no bleeding from the mouth or nose which various opinions suggest might signal a brain bleed. Yandel achieved the wholly acceptable five minute Apgar score of "7," and he evidenced no symptoms of oxygen deprivation or other injury until after leaving the delivery room and the parameters of obstetrical care. Here, the statutory presumption in favor of compensability does not exist because Petitioners have not elected to claim it, and each of the parties has cited Bennett v. St. Vincent's Medical Center, supra, as instructive on how to resolve this case. However, the opinion in Bennett, while establishing that only Petitioners may claim the statutory presumption in favor of compensability and providing important dicta about the purpose and limitations of the NICA statute,12/ only addressed a situation in which the infant suffered a material and substantial mental and physical impairment as the result of oxygen deprivation in the statutory period, which is not the case here.13/ Bennett dealt with the more typical case in which NICA and the health care providers took the position that the infant 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 a hospital," and petitioners/claimants therein took the position that it was not a case of "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." However, in the instant case, NICA and Intervenors assert that Yandel sustained an "injury to the brain . . . caused by . . . mechanical injury, occurring in the course of labor [or] delivery, . . ." Herein, it has been shown that Yandel's brain injury, whenever it occurred, may have at least partially been the result of his congenital alloimmune thrombocytopenia, but it is unlikely that he suffered any substantial neurologic impairment until after he experienced a series of profound oxygen deprivations beginning no sooner than four hours after the statutory period had ended. Upon the evidence as a whole, Respondent and Intervenors have not demonstrated that, more likely than not, Yandel sustained a mechanical injury to his brain . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period. Findings of fact as to notice 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 statutory NICA notice provisions were not satisfied by the health care providers. See Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings, et al., 29 So. 3d 992 (Fla. 2010). ". . . [I]f either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA." Galen of Fla., 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 physicians complied with the notice provisions of the Plan. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 948 So. 2d 705 (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. Fla. Birth-Related Neurological Injury Comp. Ass'n, 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. Fla. Birth-Related Neurological Injury Comp. Ass'n, 880 So. 2d 1253 (Fla. 1st DCA 2004). The statutory notice requirement is expressed at section 766.316, 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(8)(b) or when notice is not practicable. (emphasis added). Intervenors have not raised the defenses of "emergency" or "not practicable," and as the proponents of the notice issue they bear the burden of proving that notice was given. It is Petitioners' position, based upon Florida Birth- Related Neurological Injury Compensation Association v. Department of Administrative Hearings, that neither the hospital nor any of the physicians involved in labor, delivery, or resuscitation in the immediate postdelivery period in the hospital gave appropriate pre-delivery notice of participation in the NICA Plan. Intervenors contend otherwise. Winnie Palmer Outpatient Center OB/GYN Faculty Practice (hereafter Faculty Practice) is located at 89 West Copeland Drive, Orlando, Florida. It is one of a number of offices and hospitals in the Orlando, Florida, area operated by Orlando Health Inc. Winnie Palmer Hospital for Women & Babies is a teaching hospital located in the same downtown area and is part of the same medical network operated by Orlando Health, Inc. In 2007, Ms. Santiago began receiving prenatal care at the Faculty Practice for her sixth pregnancy (Yandel), because the Faculty Practice provided "high risk pregnancy" services and she had a problem with her cervix which had resulted in two prior miscarriages. Ms. Santiago continued to have regular periodic appointments at the Faculty Practice for the remainder of her pregnancy with Yandel. At all times material to Ms. Santiago's pregnancy with Yandel and Yandel's birth on July 19, 2008, the Faculty Practice employed 22-27 physicians. Ms. Santiago had no regularly- assigned physician at the Faculty Practice. At each visit there, she was seen by whichever Winnie Palmer Hospital for Women & Babies' resident and/or attending physician was available. As a group practice, all Faculty Practice physicians (attending obstetricians and residents) rotated delivery calls at the hospital, so it was possible any of the Faculty Group obstetricians or residents would participate in Yandel's delivery, and the parent company paid NICA participation fees for all of them. At all times material, Jeannie McWhorter, M.D., Martha Kuffski, M.D., and Armanpreet Bhuller, M.D., were employees of Orlando Health, Inc. who provided care and treatment to obstetrical patients at the Faculty Practice.14/ At all times material, Dr. Norman Lamberty and Dr. Penny A. Danna were employed by Physicians Associates, P.A., a private medical practice corporation not associated with the Faculty Practice. At all times material, Physicians Associates, P.A., had offices in location(s) different than the Faculty Practice, but the competent, credible evidence herein does not support a finding that either Dr. Lamberty or Dr. Danna ever saw Ms. Santiago in connection with their private P.A. for Ms. Santiago's pregnancy with Yandel. Regardless of Dr. Lamberty's speculation that he could have been present in the hospital and at Yandel's delivery as the "on call" physician on behalf of his private P.A., the totality of the competent credible evidence herein does not support a finding that Dr. Lamberty ever saw Ms. Santiago in connection with her pregnancy with Yandel prior to entering the delivery room on July 19, 2008, although he may have seen Ms. Santiago in connection with the private P.A. for one of her previous pregnancies. At all times material, Dr. Norman Lamberty and Dr. Penny A. Danna also were paid a stipend as part of the teaching staff of Winnie Palmer Hospital for Women & Babies, and in that capacity they assisted physicians in that teaching hospital's residency program with delivering babies. At all times material, they relied on the hospital to provide notice to patients and on the hospital or parent corporation to pay their NICA fees. Apparently, Dr. Danna did not see Ms. Santiago at all during her pregnancy with Yandel until after Ms. Santiago was admitted to the hospital on July 17, 2008, for labor and delivery, and there is merely an equipoise of testimony as to whether or not Dr. Lamberty saw Ms. Santiago during the two days she was in the hospital awaiting Yandel's birth.15/ It is, however, clear that Dr. Lamberty was an "on call" attending physician overseeing residents on behalf of the hospital on the date of Yandel's delivery. Dr. Lamberty is credible that he was the attending physician at Yandel's birth and that a hospital resident delivered Yandel in his presence. Dr. Lamberty did not give the resident's name, but the parties have agreed that the delivering hospital resident was George Amarydakis. (See Finding of Fact 6 and n.7). In 2007-2008, over the course of Yandel's gestation, Ms. Santiago made multiple prenatal visits to the Faculty Practice, and to Winnie Palmer Hospital for Women & Babies. She also pre-registered for her delivery at the hospital. (See Finding of Fact 83). During these visits, she signed at least five forms acknowledging her receipt of the NICA-published "Peace of Mind" brochure which explained her rights under the NICA Plan and her right to choose a non-NICA-affiliated provider if she wished to do so. Each acknowledgment form bore the heading, "ORLANDO REGIONAL HEALTHCARE." Each acknowledgment read as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGEMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc., and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191 /1(800)398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. (emphasis added). The acknowledgment forms do not name or otherwise identify any particular physician as a NICA participant. part: The NICA Peace of Mind brochure read, in pertinent If your health care provider has provided you with a copy of this informational form, your healthcare provider is placing you on notice that one or more physicians at your health care provider participates in the NICA plan. At final hearing, Ms. Santiago testified in English with an Hispanic accent, but she did not represent that she had a global inability to read or understand spoken or written English, and she was able to accurately read aloud the items printed in English which were placed in front of her. She identified her signature on all five NICA acknowledgment forms, and ultimately acknowledged that she had printed her name under her signature and filled in her Social Security number and Yandel's expected delivery date on four of them. Each of these particular four forms bears a sticker showing the name of either Dr. Carolyn Ladowski or Dr. Stephen Carlan, each of whom was then associated with the Faculty Practice. Ms. Santiago represented that she had never received the NICA brochure she had repeatedly acknowledged receiving and that she had volitionally signed one or more NICA acknowledgement forms without reading it/them simply because there were a lot of papers presented for her to sign each time she went to the Faculty Practice. As to all of the acknowledgment forms, Ms. Santiago variously represented that she had not understood the forms she was signing, because if she had understood them, she would not have signed them; that if she had understood them, she would have selected another hospital to go to for Yandel's birth; and that if she had understood the forms, then each time a form was presented to her after the first one was presented, she would have told the presenter of the form, the equivalent of "I signed this before, so I should not have to sign it again now," or "I will not sign again." Her "in the alternative" explanations, provided after the fact and in the course of litigation, are not credible. Nurse Kathy Winkleblack signed as the Faculty Practice's witness to Ms. Santiago's January 8, 2008, NICA acknowledgement form. As might be expected, she did not specifically recall Ms. Santiago. However, she testified that her usual procedure, in presenting the NICA brochure to an obstetrical patient and in securing that patient's signature on the acknowledgment form(s), was to explain orally that "all the physicians" or "all the doctors" at the Faculty Practice were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. In these oral explanations, Nurse Winkleblack made no distinction between "residents" and "resident physicians," and she did not name any specific physicians associated with the Faculty Practice. She simply said that "all the physicians" or "all the doctors" at the Faculty Practice participated in the NICA program. She used acknowledgment forms printed in English unless the obstetrical patient evidenced an inability to understand English, in which case she would use a brochure and acknowledgement form in one of three languages, including Spanish. She had an interpreter available if she needed one. The fact that Nurse Winkleblack had used an English form for Ms. Santiago on January 8, 2008, indicated to her that Ms. Santiago spoke and understood English reasonably well at that time. Nurse Winkleblack always signed as a witness after the patient signed. Three employees of Winnie Palmer Hospital for Women & Babies (Kyle Monroe, Francessca Torres, and Charlotte Wray), signed as witnesses to Ms. Santiago's signature at the hospital on the three acknowledgment forms of January 28, 2008, March 6, 2008, and March 20, 2008, respectively. None of them had a current recollection of Ms. Santiago, either. However, they consistently testified that their usual procedure, in presenting the NICA brochure to an obstetrical patient and in securing that patient's signature on the acknowledgment form(s) at the hospital, was to explain orally that "all the physicians" or "all the doctors" at the hospital were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. Each witness testified that s/he had made no distinction, in any oral explanation to any patient, between "residents" and "resident physicians." None of these witnessing hospital employees had named any specific physicians associated with the hospital in speaking with any obstetrical patients. Additional paperwork supports the January 28, 2008, acknowledgment form as being signed in the hospital, in that it shows that on January 29, 2008, Ms. Santiago underwent a procedure at the hospital. There is also testimony that suggests that one of the forms was associated with a pre- registration for delivery of Yandel. Ms. Winkleblack is credible that the January 8, 2008, form had been signed at the Faculty Practice by Ms. Santiago and by Ms. Winkleblack on Ms. Santiago's first visit to the Faculty Practice. Additional paperwork supports this. The foregoing clear, coherent, and consistent testimony of those who witnessed Ms. Santiago's signature(s), Ms. Santiago's identification of her own signature and other pertinent data on the acknowledgment forms, and Ms. Santiago's inconsistent and less than credible reasons why she would not have knowingly signed any acknowledgements after the first one, are persuasive that Ms. Santiago not only signed all the acknowledgment forms but that she signed them after she had the opportunity to read the NICA brochure and the opportunity to ask any questions she might have wished to ask, even if she did not actually utilize those opportunities. Despite the foregoing, Petitioners submit that the notices herein were faulty because the acknowledgment forms utilized the term, "resident physicians," instead of the individual names of the 22-27 Faculty Practice physicians and the more than 100 physicians on staff at the hospital in the same period. Petitioners reason that, although Ms. Santiago signed acknowledgment forms at both the hospital and the Faculty Practice, the notices she received only used the term "resident physicians" and so did not apprise her that anyone except residents at the Faculty Practice and the hospital were NICA participants. To support their theory, Petitioners rely upon Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, supra, which held, in pertinent part, that: . . . we find that both participating physicians and hospitals with a participating physician on staff are required to provide notice to obstetrical patients of their rights and limitations under the plan.. . . * * * Consequently, under our holding today, if either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimants can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA. (emphasis in original) Petitioners also rely on Florida Administrative Code Rule 64B8-6.004, which provides: 64B8-6.004 Resident Physician and Assistant Resident Physician; Definition of. A resident physician is one who has completed an internship and is engaged in a program of training designed to increase his knowledge of the clinical disciplines of medicine, surgery, or any of the other special fields which provide advanced training in preparation for the practice of a specialty. In the first year following the internship, the person is usually referred to as an assistant resident physician. In the second year, he is usually referred to as a resident physician. Even upon Petitioners' theory, it is abundantly clear that the hospital and Faculty Practice acknowledgment forms gave the notice required by section 766.316, covering the hospital and Faculty Practice residents and assistant residents, regardless of whether those types of residents were contemplated by section 766.314(4)(c). (See § 766.316 quoted at Finding of Fact 64). On the other hand, given that none of the physicians who attended Ms. Santiago for labor, delivery, or the postdelivery resuscitative period were specifically named on the acknowledgment forms presented to her at the Faculty Practice and at the hospital, and given that none of the Intervenors or Dr. Amyradakis gave individual pre-delivery notice of their NICA participation to Ms. Santiago in connection with Yandel's gestation or birth, it is fairly debatable whether the Faculty Practice or Winnie Palmer Hospital for Women & Babies gave notice on behalf of any physician other than their residents and assistant residents. In determining whether there was a lack of NICA notice by those other than Winnie Palmer Hospital for Women & Babies and its residents and assistant residents, and the Faculty Practice's residents and assistant residents, the case of Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 932 So. 2d 1125 (Fla. 5th DCA 2006), has been considered. In that case, personnel taking the obstetrical patient's acknowledgment of NICA coverage on behalf of a professional association of obstetricians had represented that "all our doctors are NICA participants," and the court concluded that they had thereby given satisfactory notice on behalf of all members of the professional association of obstetricians. The implications of Jackson, supra, have been carefully weighed and considered in light of the subsequent case of Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, supra, as well as in light of the "real world" consideration that most patients would not know or comprehend the Florida Administrative Code's legalistic definition of "resident," any more than the hospital and Faculty Practice employees who presented the NICA acknowledgment forms and brochure to Ms. Santiago comprehended that any distinction "at law" might exist between the terms "residents," "resident physicians," "physicians" and "doctors." Herein, the hospital provided its notice, using the same NICA brochure and the same acknowledgment form that the Faculty Practice did. Each of them provided those notices at their separate locations. Each form had the name "Orlando Regional Healthcare" at the top of the acknowledgment form. Each time Ms. Santiago signed one of the acknowledgment forms, she was told the equivalent of "all our doctors participate in NICA." Therefore, the record supports a finding that Ms. Santiago received NICA notice covering both the physicians and the hospital and does not support a finding that Ms. Santiago was misled with regard to NICA coverage. Intervenors have borne their burden of proof to show that the obstetrical patient herein acknowledged receipt of the NICA notice and have thereby established the rebuttable presumption that the notice requirements of section 766.316 were met. Petitioners have not rebutted that presumption. Accordingly, it is found that the NICA notice provided to Ms. Santiago was sufficient as to all hospital staff physicians and all physicians at the Faculty Practice.
The Issue At issue is whether Clorinda Colwell, a minor, suffered a "birth-related neurological injury," as defined by Section 766.302(2).1
Findings Of Fact Preliminary Findings Petitioners, Stephen Colwell and Clorinda Colwell, are the natural parents and guardians of Clorinda Colwell, a minor. Clorinda was born a live infant on December 6, 2002, at Central Florida Regional Hospital, a hospital located in Sanford, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Clorinda's birth was John Parker, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . 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." Section 766.302(2). See also Sections 766.309 and 766.31. Here, indisputably, the record demonstrates that Clorinda's development has been age appropriate, and she evidences neither mental impairment nor physical impairment, much less a substantial mental and physical impairment. Consequently, for reasons appearing more fully in the Conclusions of Law, Clorinda does not qualify for coverage under the Plan.
The Issue At issue is whether Christopher Kocher, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Findings related to the parental award and past expenses At hearing, the parties stipulated that there were no monies owing for past expenses, as they had been paid by collateral sources (private insurance). Section 766.31(1)(a). The parties further agreed that Petitioners, as the parents of Christopher Kocher, a deceased minor, be accorded a lump sum award of $100,000.00, as well as an award of $1,500.00 for funeral expenses. Section 766.31(1)(b). Findings related to attorney's fees and costs incurred in connection with the filing of the claim To support their claim for attorney's fees, Petitioners offered what was titled "Ferraro & Associates, P.A.'s Time Sheet." (Petitioners' Composite Exhibit 1, "Ferraro & Associates, P.A.'s Time Sheet"). As explained by Plaintiffs' counsel, at hearing MR. JOHNSTON: And these were -- these are the hours that were reconstructed. Our firm doesn't normally keep time records. We're a plaintiffs firm. But Mr. Falzone did go through and estimated the time that was spent on the NICA related matters and put them in this time sheet . . . . The time sheet reflected 17 hours dedicated to the case by Mr. Falzone, for which Petitioners requested an hourly rate of $500 (a total of $8,500.00), and 109.25 hours dedicated to the case by "different associates," for which Petitioners requested an hourly rate of $250.00 (a total of $27,312.50), for a total award of $35,812.50. Notably, such time sheet is hearsay, and was received into evidence subject to the limitations of Section 120.57(1)(c). ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Consequently, since no witnesses were called or competent evidence offered detailing the services rendered or the prevailing hourly rate charged in the community by lawyers of reasonably comparable skill, experience and reputation, for similar services, there is no competent proof to support an award of attorney's fees. Mercy Hospital, Inc. v. Johnson, 431 So. 2d 687, 688 (Fla. 3d DCA 1983)("[Attorney's] failure to present detailed evidence of his services is fatal to his claim."); Yakubik v. Board of County Commissioner's of Lee County, 656 So. 2d 591 (Fla. 2d DCA 1995)("The testimony of an expert witness concerning reasonable attorney's fees is necessary to support the establishment of the fees.") Nevertheless, at hearing, Respondent agreed that it would accept 37.25 hours (the hours ostensibly expended from November 7, 2000, through April 28, 2001), as reasonably expended in pursuing the claim, and $175.00 as a reasonable hourly rate, for a total fee award of $6,518.75. Here, given that the claim was routine, and lacked any novel aspect that would warrant the time claimed by Petitioners' counsel, Respondent's concession is reasonable. Consequently, given that Petitioners' counsel obviously expended some time pursuing the claim, and there is no competent proof to otherwise support an award of attorney's fees, an award of $6,518.75 is appropriate. Finally, Petitioners seek to recover certain expenses they claim were reasonably incurred in connection with pursuing the claim for compensation. Such costs total $4,139.30. (Petitioners' Composite Exhibit 1, "Case Expense Report," page 3). Respondent does not object to the costs reflected on counsel's "Case Expense Report," page 3, commencing with the entry of November 7, 2000 ($15.00), and extending through the entry of March 20, 2001 ($15.50), totaling $1,036.02. Accordingly, those costs are awarded, without further discussion. As for the balance of expenses claimed, and opposed by Respondent, the record is devoid of proof to support their recovery. Notably, as with their claim for attorney's fees, Petitioners offered neither testimony nor competent evidence detailing the nature of the expenses claimed. Consequently, it would be pure speculation to conclude such expenditures constitute costs that are traditionally taxable, that they were reasonable in amount, or that they were necessarily incurred in pursuing the claim for compensation. Consequently, such expenses are not recoverable.
