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 Emma Mae Giroux, a deceased minor, suffered a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of her birth, as required for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement, with the nurse midwife, participating physician, and the participating physician's professional association, bars them from recovery under the Plan. Whether the Division of Administrative Hearings must 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 coverage and pursue such a civil suit.
Findings Of Fact The parties' stipulation By their Pre-Hearing Stipulation, filed October 11, 2002, the parties agreed, as follows: The parties, specifically the Petitioners, the Respondent, and Intervener, AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center, and further to the Status Conference conducted on October 3, 2002, and in lieu of the ALJ conducting a trial of this matter, due stipulate and agree as to the following as a predicate for the ALJ's ruling on the issue of compensability of this claim, to wit: FACTUAL STIPULATIONS That the Petitioners are the legal representative of the deceased minor child. That Emma Mae Giroux was delivered at North Ridge Medical Center on May 3, 1999, and weighed in excess of 2500 grams. That Donna Hamilton was a certified nurse midwife who provided obstetrical services and was present at the birth of Emma Mae Giroux. That Ronald Tuttleman, M.D. was a participating physician in the NICA Plan for 1999. That Donna Hamilton acted under the direct supervision of Ronald Tuttleman, M.D. and that obstetrical services were therefore provided by a participating physician in the NICA Plan, including by virtue of Dr. Tuttleman ordering Pitocin for Kristina Giroux at approximately 12:30 p.m. on May 3, 1999. That Emma Mae Giroux sustained a "birth- related neurological injury" as defined by §766.302, Fla.Stat. That Emma Mae Giroux passed away on May 10, 1999. That proper notice in accordance with §766.316, Fla.Stat., was provided by North Ridge Medical Center prior to delivery. Although the issue of notice by Dr. Tuttleman is moot, the Petitioners acknowledged that Dr. Tuttleman did provide notice to Kristina Giroux of his participation in the NICA Plan prior to delivery pursuant to §766.316, Fla.Stat. LEGAL STIPULATIONS 1. That during the pendency of this action, the Petitioners unilaterally negotiated a settlement with the other interveners, specifically, Donna Hamilton, C.N.M. ("Hamilton") and Ronald M. Tuttleman, M.D. & Ronald M. Tuttleman, M.D., P.A. (Collectively "Tuttleman"), for the total sum of $350,000.00. The Petitioners having elected to receive this civil settlement from the Interveners, Hamilton and Tuttleman, acknowledge that the Petitioners may not receive any benefits from the Respondent under the NICA Plan, pursuant to §766.301, et seq., including specifically pursuant to §766.303(2) & §766.304, Fla.Stat. The Petitioners do reserve the right to proceed against North Ridge Medical Center solely under the statutory exceptions based on theories of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, if and as applicable. North Ridge Medical Center, by entering into this Stipulation, does not waive any of its rights or immunities under the NICA Plan and does not stipulate to the effect of Petitioners' aforedescribed civil settlement. EVIDENTIARY STIPULATIONS The parties do further stipulate as follows in the event an Evidentiary Hearing is rendered unnecessary by this Stipulation: The medical records filed and attached to the Petition shall be admitted into evidence. The medical report of Donald Willis, M.D. dated April 2, 2002, and attached to NICA's Notice of Compensability and Request for Hearing, shall be admitted into evidence. There are no further medical records to be admitted into evidence in this administrative proceeding, and no depositions shall be admitted into evidence in this administrative proceeding. That the Administrative Law Judge shall enter a Final Order with his legal rulings based upon the Stipulated Facts set forth herein, and based upon any other matters appearing within the pleadings and records on file. Consistent with the terms of the parties' stipulation, the medical records filed with DOAH on March 11, 2002 (marked Joint Exhibit 1) and the medical report of Donald Willis, M.D., filed with DOAH on April 10, 2002 (marked Joint Exhibit 2) were received into evidence. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan when an infant suffers 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." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the parties agree, and the proof is otherwise compelling, that Emma suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim qualifies for coverage under the Plan; however, given Petitioners' settlement with the nurse midwife and participating physician, and for reasons appearing more fully in the Conclusions of Law, Petitioners are foreclosed from pursuing an award under the Plan. Jurisdiction
Findings Of Fact The Petition named Dr. George as the physician providing obstetric services at Ross's birth on January 28, 2010. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000) assessment pursuant to Section 766.314(4)(c), Florida Statutes. I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non- exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Adrienne George indicates that in the year 2010, the year in which Dr. George participated in the delivery of Ross Reshard, as indicated in the Petitioners' Petition for Benefits, Dr. George did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan until February 2, 2010. According to the petition, the child was born on January 28, 2010. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. George in relation to an exempt status for the year 2010. To the contrary, the attached "NICA CARES physician payment history/report" shows that on February 2, 2010, Dr. George paid the Five Thousand Dollar ($5,000) assessment required by Section 766.314(5)(a), Florida Statutes, for participating physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. George had not paid her assessment for 2010. At the time of the birth of Ross, Dr. George was not a participating physician in the Plan.
Findings Of Fact The Petition named Dr. Albert as the physician providing obstetric services at Mia's birth on May 27, 2011. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA's official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non- exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the "NICA CARES" database for each physician. The "NICA CARES physician payment history/report" attached hereto for Dr. Miguel Albert indicates that in the year 2011, the year in which Dr. Albert participated in the delivery of Mia Benitez, as indicated in the Petitioners' Petition for Benefits, Dr. Albert did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA's policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Albert in relation to an exempt status for the year 2011. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2011, Dr. Albert paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1, Florida Statutes, for non- participating, non-exempt licensed physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Albert had not paid the assessment for a participating physician in 2011. At the time of the birth of Mia, Dr. Albert was not a participating physician in the Plan.
Findings Of Fact By stipulation filed November 12, 1993, petitioners and respondent stipulated as follows: COMES NOW, CHARLES PATRICK, ESQUIRE, Attorney for CLYDE RAY, JR., a minor, and LISA TAYLOR and CLYDE RAY SR., individually and as parents and natural guardians of CLYDE RAY, JR., and COMES NOW, MARK J. ZIENTZ, ESQUIRE, Attorney for FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, who hereby stipulate and agree as follows: That pursuant to Chapter 766, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth Related Neurological Injury Compensation Association (the Association) on behalf of Clyde Ray, Jr., and Clyde Ray, Sr., and Lisa Taylor (the Petitioners) for benefits under Chapter 766, F.S. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by Petitioners and a timely denial was filed on behalf of the Association. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, requires an infant to suffer both a permanent and substantial mental and physical impairment to fall within the definition of a "Birth-related neurological injury" making said infant eligible for coverage by the Florida Birth-Related Neurological Injury Compensation Plan. The parties agree that the infant, Clyde Ray, Jr., does not exhibit substantial physical impairment so as to fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302(2), Florida Statutes. That the infant, Clyde Ray, Jr., was born at Jackson Memorial Hospital on June 17, 1990, and that said hospital was a licensed Florida Hospital and the attending physicians were participating physicians within the meaning of Chapter 766, Florida Statutes. WHEREFORE, based upon the above stipulated set of facts, it is respectfully requested that the Division of Administrative Hearings approve the stipulations as being consistent with the evidence in this cause and enter an order denying the claim against the Association on the basis that Clyde Ray, Jr., did not suffer a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes.
The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether the hospital and the participating physicians gave the patient notice, as contemplated by Section 766.16, Florida Statutes, or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Jennifer Castillo and Peter Borowiak, are the natural parents and guardians of Lievens Borowiak, a minor. Lievens was born a live infant on April 18, 2001, at Jackson Memorial Hospital, a hospital owned and operated by the Public Health Trust in Miami, Dade County, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were provided during the course of Lievens' birth by Salih Y. Yasin, M.D., Mary Jo O'Sullivan, M.D., Armando Hernandez, M.D., and Victor H. Gonzales-Quintero, M.D., who, at all times material hereto, were "participating physicians" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. More particularly, Doctors Yasin, and O'Sullivan, were members of the faculty at the University of Miami, School of Medicine, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. These physicians, referred to as attending physicians, were "participating physician[s]" in the Plan, since the assessment required for participation had been paid on their behalf by the University of Miami. Doctors Hernandez and Gonzales-Quintero were "participating physician[s]," since they were residents in the Trust's postgraduate residence program in obstetrics and gynecology, and were exempt from payment of the assessment. §§ 766.302(7) and 766.313(4) and (5), Fla. Stat. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Lievens suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to an award When it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes (2000),2 provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 3. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Jennifer Castillo and Peter Borowiak, as the parents of Lievens, be awarded $100,000.00, to be paid in lump sum, and $8,321.44 for attorney's fees ($8,000.00) and costs ($321.44) incurred in connection with the filing of the claim. § 766.31(1)(b) and (c), Fla. Stat. The parties have further agreed that no monies are owing for past expenses, and that Respondent pay future expenses as incurred. § 766.31(1)(a) and (2), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the healthcare providers' claim of Plan immunity in a pending civil action, by averring that the healthcare providers failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same); and, Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Association, 30 Fla.L.Weekly D452a (Fla. 2d DCA February 16, 2005)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. 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 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.") Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which included a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of the brochure to their obstetrical patients. (Intervenors' Exhibit 1) Here, given the provision of Section 766.316, Florida Statutes, the hospital and attending physicians (Doctors Yasin and O'Sullivan), provided they had a reasonable opportunity to do so, were required to provide pre-delivery notice. 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 a reasonable time prior to delivery."); Board of Regents v. Athey, 694 So. 2d 46, 50 (Fla. 1st DCA 1997)("[H]ealth care providers who have a reasonable opportunity to give notice and fail to give pre- delivery notice under section 766.316, will lose their NICA exclusivity . . . .). Doctors Hernandez and Gonzales-Quintero, as residents, deemed to be a participating physician under Section 766.314(4)(c), Florida Statutes, were not required to provide notice. Findings related to notice At or about 9:45 a.m., Wednesday, April 11, 2001, Ms. Castillo, aged 23, with an estimated delivery date of April 26, 2001, and the fetus at 38 weeks' gestation, presented to Jackson Memorial Hospital (JMH) on the advice of her primary care physician, as a high-risk pregnancy, secondary to cardiac dysfunction. Notably, Ms. Castillo had a history of congenital heart disease, with cardiac surgery at aged 10 for transposition of the great vessels, and a recent diagnosis of marked pulmonary hypertension and severe aortic insufficiency. Under the circumstances, Ms. Castillo's primary care physician concluded delivery at a community hospital was inadvisable, and he referred her to JMH for evaluation, as to the timing of, as well as the management of, her delivery. On presentation, Ms. Castillo was initially assessed in OB Triage. At the time, existing protocol required that, following initial assessment, "[t]he HUS/Nurse places the patient on the triage log (in the computer at JMH) and gives the 'Peace of Mind' (OB) and 'Advance Directives' brochures in their respective languages." (Petitioners' Exhibit 11) Here, the proof demonstrates that Phyllisan Goodwin, an LPN employed by the hospital, initially assessed Ms. Castillo in OB Triage, and completed the Triage Treatment Record, which documented that, consistent with existing protocol, she provided Ms. Castillo with a copy of the Advanced Directives pamphlet and the Peace of Mind (NICA) brochure. (Intervenors' Exhibits 3 and 10) At or about the same time, Nurse Goodwin gave Ms. Castillo a General Consent for Treatment form. (Intervenors' Exhibit 2) That form, insofar as Intervenors deem it pertinent to the notice issue, included the following provisions: I, the undersigned patient or Jennifer Castillo (name of authorized representative acting on behalf of patient) consent to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment of my illness(es) by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital (PHT/JMH) and the University of Miami School of Medicine, including medical students. I have been told the name of the physician who has primary responsibility for my care, as well as the names, professional status and professional relationships of other individuals who will be involved in my care. It has been explained to me that in a large teaching hospital environment like the Public Health Trust/Jackson Memorial Hospital, there may be additional or other physicians and staff involved in my care as well. The consent was signed by Ms. Castillo, and witnessed by Nurse Goodwin, at 11:32 a.m., April 11, 2001. Following triage, Ms. Castillo was admitted to the antepartum floor for further evaluation and management. There, Ms. Castillo was evaluated by Charmin Campbell, LPN, who completed the OB Nursing Admission Assessment, which included the observation that Ms. Castillo had previously received the Advanced Directives and the Peace of Mind brochures. (Intervenors' Exhibit 4) Ms. Castillo's subsequent hospital course was summarized in Dr. Yasin's Discharge Summary, as follows: The Patient was admitted for a cardiology workup in preparation for a controlled delivery. She was seen by both anesthesia and cardiology. Cardiology recommended an echocardiogram to evaluate heart function which was done and the patient was found to have sever pulmonary hypertension with moderate right ventricular dysfunction and dilatation in addition to a moderate aortic insufficiency. The patient also had an official ultrasound which showed IUGR [intrauterine growth retardation] . . . . After long consultation with both anesthesia and cardiology the plan was made on April 13th to induce the patient in a controlled setting on [Monday] April 16th. It was felt that the patient would benefit from a central line and that she would deliver on the labor floor, because with the IUGR should the patient need a cesarean section it could potentially be stat, and a better outcome would be ensured by delivering the patient on the labor floor as opposed to the cardiac care unit. The patient while on antepartum had daily NST'S [nonstress tests]. She was followed closely both by cardiology and anesthesia. On April 16th the patient went to the labor floor for an induction. The induction continued and the patient delivered on April 18th. It was a baby boy with Apgar scores of 2 4 5. The infant weighed 2,641 grams. The delivery was vacuum assisted secondary to poor maternal effort, and it was noted that there was a tight nuchal cord times one. Both anesthesia and cardiology were present at the delivery. Postpartum the patient went to the cardiac care unit for close monitoring. The following day she was sent to the normal postpartum floor. The patient was doing incredibly well. She was asymptomatic. No shortness of breath. She had no chest pain. She was ambulating without difficulty. She was discharged home on postpartum day number two. (Petitioners' Exhibit 5A, page 004.) See also Petitioners' Exhibit 5A, pages 024-027, Dr. Yasin's progress note of April 13, 2001, and Petitioners' Exhibit 5A, pages 093-095, Dr. Yasin's Vaginal Delivery Record. Notably, during the 5 days that preceded induction of labor, Ms. Castillo was continuously monitored by hospital staff; underwent numerous evaluations, by cardiology, radiology, and anesthesiology, among others; and was called upon to sign a number of forms, in addition to the General Consent for Treatment form discussed supra, including: an Advance Directives Checklist, on April 11, 2001; a Consent to Operations or Procedures for a chest x-ray, at 5:00 p.m., April 11, 2001; a Release of Liability for Loss of Personal Property, at 12:45 a.m., April 12, 2001; a Consent Form for sterilization, on April 13, 2001; a Consent to Operations or Procedures for the delivery of her child, at 6:30 a.m., April 16, 2001; and, a Consent to Operation or Procedures for a chest x-ray, at 10:50 a.m., April 16, 2001. (Petitioners' Exhibit 5B) Moreover, the record reveals that during that 5-day period, Doctors Yasin and O'Sullivan, the attending physicians, provided obstetrical services to Ms. Castillo on numerous occasions; on April 16, 2001, Dr. Yasin supervised Ms. Castillo's induction; and on April 18, 2001, Dr. Yasin delivered Lievens. Consequently, the hospital and the attending physicians had numerous opportunities to provide notice to Ms. Castillo. It is also notable that, on presentation to JMH at 9:45 a.m., April 11, 2001, Ms. Castillo was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after 11:55 a.m., April 16, 2001, when labor was induced, with Petocin. More particularly, there was no "evidence of the onset and persistence of uterine contractions[3] or rupture of the membranes[4]" until after her labor was induced. Moreover, there was no proof that, upon admission or until her labor was induced, "there was inadequate time to effect safe transfer to another hospital prior to delivery" or "[t]hat a transfer may pose a threat to the health and safety of the patient or fetus." Consequently, until some time after 11:55 a.m., April 16, 2001, some 5 days after she presented to the hospital, Ms. Castillo did not have an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, that would have excused the giving of notice. Moreover, there was no proof to support a conclusion that the giving of notice was not practicable. Resolution of the notice issue, with regard to the hospital With regard to the hospital and the notice issue, the more persuasive evidence supports the conclusion that, more likely than not, Nurse Goodwin, consistent with established practice, provided Ms. Castillo a copy of the NICA brochure in OB Triage. In so concluding, it is noted that the giving of notice in OB Triage was an established protocol (Petitioners' Exhibit 11); the Triage Treatment Record prepared by Nurse Goodwin documented that the NICA brochure was provided (Intervenors' Exhibit 3); except for the entry regarding the NICA brochure, Ms. Castillo acknowledged the information Nurse Goodwin entered in the Triage Treatment Record was accurate (Intervenors' Exhibit 7, pages 52-53); it is unlikely, given such consistency, Nurse Goodwin would not have also provided Ms. Castillo with the NICA brochure; and Ms. Castillo's possession of the NICA brochure, following OB Triage, was confirmed by Nurse Campbell on the Nursing Assessment Record, when Ms. Castillo was admitted to the antepartum floor (Intervenors' Exhibit 4). Consequently, the proof compels the conclusion that the hospital complied with the notice provisions of the Plan. Resolution of the notice issue, with regard to the attending-participating physicians With regard to the attending physicians and the notice issue, it is undisputed that the attending physicians never provided notice, and relied on the hospital to provide notice on their behalf.5 Therefore, to demonstrate compliance, Intervenors posit that, "under the circumstances of this case," the notice the hospital provided was sufficient to satisfy both its notice obligation, and that of the attending physicians. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraph B) The "circumstances" were stated to be, as follows: Upon presenting at the OB Triage, Ms. Castillo was provided an English- language NICA Peace of Mind brochure by Phyllisan Goodwin, LPN, who electronically notated Ms. Castillo's chart on the triage treatment record to that effect. At or about the same time that she received the NICA brochure, Ms. Castillo signed an English-language General Consent for Treatment form, wherein Ms. Castillo consented to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital and the University of Miami School of Medicine. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraphs E10 and 11). Given such "circumstances," Intervenors contend that a patient, similarly situated as Ms. Castillo, would reasonably conclude from the delivery of the NICA brochure and the General Consent for Treatment form, that the brochure was given on behalf of the hospital and the attending physicians. (Hospital Proposed Final Order, paragraph 18) However, Intervenors do not suggest, and the proof does not support a conclusion that, the notice also disclosed, or compelled a conclusion that, the attending physicians were "participating physician[s]" in the Plan. Here, contrary to Intervenors' contention, it must be resolved that the notice provided by the hospital did not satisfy the attending physicians' obligation. In so concluding, it is noted that the General Consent for Treatment form is clearly unrelated to NICA notice, and the duality of purpose Intervenors contend the brochure was intended to serve, as notice for the hospital and the participating physicians, was not communicated to the patient. Moreover, a reading of the brochure would not, absent speculation, lead one to believe the brochure was also given on behalf of the physicians, and the brochure did not inform the patient that any physician was a "participating physician" in the Plan. Indeed, the brochure simply stated: You are eligible for this protection if your doctor is a participating physician in the Association. Membership means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. (Emphasis added) Consequently, although joint notice may have been the intention of the hospital, and the expectation of the attending physicians, the notice provided was inadequate to achieve that purpose.6
The Issue The issue in this case is whether Jeffrey Puretz, M.D., was a participating physician at the time of the birth of Sophia Talley for purposes of the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated Facts Petitioners Jaime Barnes and Jonathan Talley are the parents/natural guardians of Sophia Talley. The delivery of Sophia was performed by Intervenor, Jeffrey Puretz, M.D. Sophia was born at Lakeland Regional Medical Center (LRMC), a licensed hospital in Lakeland, Florida, on June 14, 2011. Sophia’s birth weight was 2,970 grams. Sophia was a single gestation. Sophia did not suffer from a genetic or congenital abnormality at birth. Sophia’s APGAR scores at birth were 4/8/9. Sophia was delivered by Cesarean section. Sophia is substantially and permanently mentally and physically impaired as a result of an hypoxic injury to her brain which occurred during labor, delivery and in the immediate post- delivery period. Sophia’s medical condition and treatment are documented in the birth records of Lakeland Regional Medical Center. The Petition in this cause was filed within five years from the date of birth of Sophia. Jeffrey Puretz, M.D., provided NICA notice to Jaime Barnes. Jeffrey Puretz, M.D., paid the NICA fee covering the period during which the birth of Sophia took place. NICA issued a certificate of participation regarding Jeffrey Puretz, M.D., for the period of time which included the date of birth of Sophia. At the time of Sophia’s birth, Jeffrey Puretz, M.D., was providing services pursuant to a contract with Central Florida Healthcare, Inc. (CFH). Facts based upon evidence of record At the time he delivered Sophia Talley, Dr. Puretz was employed by Women’s Care of Florida Lakeland OB/GYN. However, Dr. Puretz also provided obstetrical services pursuant to an independent contractor agreement with CFH. Ms. Barnes received her prenatal care from CFH. Dr. Puretz provided services to Ms. Barnes as a result of Ms. Barnes’ status as a patient of CFH, a federally-funded community healthcare provider. The independent contractor agreement between Dr. Puretz and CFH states that Dr. Puretz has been "deemed" an employee of the federal government pursuant to the Federally Supported Health Centers Assistance Act and reads in pertinent part as follows: The practice represents and warrants to the Contractor that it has been “deemed” and that during the term of this Agreement it shall remain “deemed” as an employee of the Federal Government pursuant to the Federally Supported Health Centers Assistance Act of 1995 (Pub. L. 104-73). As such, all of the Practice’s employees and certain independent contractors, as well as the Practice itself, are afforded protection under the Federal Tort Claims Act (FTCA) for claims relating to personal injury, including death, resulting from the performance of medical procedures required under this Agreement. The Contractor, by virtue of his/her independent contractor status in the field of obstetrics and gynecology, will be afforded protection under the FTCA for duties performed under this Agreement. The NICA Notice provided to Ms. Barnes by CFH includes the name of Dr. Puretz as one of the physicians who could be providing obstetrical care to Ms. Barnes. In addition to having a “Certificate of Participation” from NICA, Dr. Puretz appears on NICA’s list of participating physicians, which listed Dr. Puretz as a participating physician for the time period in which Sophia was born. Carol Fox is Associate Vice President of Medical and Academic affairs at LRMC. Her responsibilities include oversight of the medical staff office, which does the credentialing, privileging, and enrollment of medical staff members of the hospital. According to Ms. Fox, a physician must provide evidence of licensure and malpractice insurance to apply for medical staff privileges. The office is also responsible for confirming that physicians with privileges are participants in NICA. Dr. Puretz is an active staff member providing obstetrical services at LRMC. A copy of Dr. Puretz’s memorandum of insurance for medical professional liability insurance is kept on file at LRMC, listing his private practice, Women’s Care Florida, LLC, as the named insured. According to Ms. Fox, LRMC does not consider or rely upon a physician’s employment status when considering the granting of privileges. The Agreement between Dr. Puretz and CFH specifically contemplates that the services provided by Dr. Puretz include both hospital and outpatient services. It is Dr. Puretz’s understanding that he was acting as a federal employee under the contract with CFH when he was providing obstetrical services for the birth of Sophia.
