Findings Of Fact Lukas was born on December 23, 2017, at Sacred Heart Hospital, located in Escambia County, Florida. Donald Willis, M.D. (Dr. Willis) was requested by NICA to review the medical records for Lukas. In a medical report dated January 14, 2020, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was induced at 37 weeks due to a prior fetal demise. The newborn was depressed at birth with Apgar scores of 1/6/7. Bag and mask ventilation was required for 2-minutes. The initial blood gas after birth had a base excess of -16. The baby was anemic at birth. Evaluation identified adrenal hemorrhage as the etiology for the anemia. MRI on DOL 9 showed a small subarachnoid hemorrhage. The mother was being treated with Lovenox, an injectable anticoagulant. Lovenox does not cross the placenta and would not be factor in the fetal adrenal or subarachnoid hemorrhage. The adrenal and subarachnoid hemorrhage were more likely related to birth related hypoxia. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain. Based on the cord blood gas pH >7.1, it is unlikely any significant oxygen deprivation occurred prior to birth. However, some degree of oxygen deprivation likely occurred in the immediate post-delivery period, based on the base excess of -16 on the initial blood gas in the nursery and both adrenal and subarachnoid hemorrhages identified by ultrasound. I am unable to comment on the severity of the brain injury. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert specializing in maternal-fetal medicine and pediatric neurology, to examine Lukas and to review his medical records. Dr. Sheth examined Lukas on February 18, 2020. In a medical report dated March 8, 2020, Dr. Sheth summarized his examination of Lukas and opined in pertinent part as follows: In SUMMARY, Lucas’s [sic.] neurological examination reveals evidence of behavioral problems, and stereotypic behaviors with expressive language delay concerning for autism spectrum disorder, and generalized axial hypotonia and mild appendicular hypertonia evidenced only in gait, with apparent preserved visual acuity, and a history of epilepsy that started at age 6 months and generalized tonic clonic seizures with a history of 4 fever related seizures. Much of Lucas’s [sic.] neonatal course was detailed in the history of present illness. He was born at 37 weeks gestation. Delivery was vaginal with an epidural. The NICU team was called emergently to labor and delivery patient appeared depressed and unresponsive pale. Positive pressure ventilation for about 2 minutes was undertaken. Spontaneous breaths were established at this time. Heart rate improved within 30 seconds of positive pressure ventilation. By 40 minutes of age the patient was active normal tone had a good gag good suck responsive pupils and normal Moro. Serial neuro exams for the next 24 hours of life were normal. He was not felt to meet criteria for brain cooling. MRI revealed a slight extra-parenchymal hemorrhage in the subarachnoid space without significant intra- parenchymal involvement. While he has seizures they did not develop till he was approximately six months old and he was not noted to have neonatal seizures. His head appears to be growing appropriately with regards to head size. He has not had a genetic evaluation or developmental pediatrics evaluation. As such Lucas [sic.]would not appear to meet NICA specified criteria for compensation under the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Lukas. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sheth’s opinion that Lukas should not be considered for inclusion in the NICA program. Dr. Sheth’s opinion is credited. The Unopposed Motion for Summary Final Order states that “Respondent has conferred with Petitioners’ attorney and is authorized to represent that Petitioner is in agreement and not opposed to this motion.”
The Issue At issue in this proceeding is whether James Tracey, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Aida Tracey and Mark A. Tracey are the parents and natural guardians of James Tracey (James), a minor. James was born a live infant on July 23, 1995, at Plantation General Hospital, a hospital located in Plantation, Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of James was Kenneth R. Selbst, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Here, the parties have agreed (and the proof so demonstrates) that James suffers severe cognitive and motor impairment such that it may be said with reasonable medical certainty that he is "permanently and substantially mentally and physically impaired," as those terms are used in Sections 766.301 through 766.316, Florida Statues. What remains to resolve is the genesis of his impairment or, more pertinent to these proceedings, whether the proof supports the conclusion that his condition resulted from an "injury to brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as required for coverage to be afforded by the Plan. 1/ Mrs. Tracey's antepartum course and James' birth At or about 4:45 a.m., July 23, 1995, Mrs. Tracey's membranes prematurely ruptured (while she was at home), with (brown and green-tinged) meconium-stained fluid noted. At the time, her estimated date of delivery had been noted as August 7, 1995, and her antepartum course had not been without complication or risk. Regarding those risk factors, the proof demonstrates that Mrs. Tracey's antepartum course was complicated by multiple episodes of bleeding and threatened pre-term labor (contractions) during the course of her pregnancy. The vaginal bleeding occurred early in the pregnancy (at or about 22 weeks) and was considered secondary to low-lying placenta and leimyormata uteri (a benign tumor derived from smooth muscle located in the uterus.) The episodes of pre-term labor occurred at 30 to 37 weeks gestation, and she was treated with tocolysis and eventually a Brethine pump with home uterine activity monitoring to inhibit labor. Medications were discontinued at 37 weeks (approximately one week prior to rupture of the membranes), and Mrs. Tracey appeared to be doing well since that time. Of further note, the baby was noted to be in a transverse lie. Following the rupture of her membranes, Mrs. Tracey immediately telephoned her obstetrician, Dr. Selbst. Dr. Selbst found the presence of greenish-brown amniotic fluid "alarming," and instructed Mrs. Tracey to present to Plantation General Hospital. Mrs. Tracey presented to Plantation General Hospital at or about 5:50 a.m., July 23, 1995, in what Dr. Selbst noted as "latent labor." 2/ At the time, Mrs. Tracey complained of "feeling menstrual cramps," and vaginal examination revealed the cervix to be fingertip dilated, effacement at 50 percent, and the presenting part high. A stat ultrasound confirmed a transverse lie with the head in the left upper quadrant, back down, and external fetal monitoring revealed a fetal heart tone (FHT) in the 160 beat per minute range. Continued fetal monitoring from admission at 5:50 a.m., until approximately 7:11 a.m., revealed a fetal heart rate of 150 to 160 beats per minute that was essentially non-reactive (non- reassuring) and consistent with the presence of a compromised fetus. Specifically, the fetal heart tracing showed a complete lack of acceleration of the fetal heart over a period of approximately one hour and twenty minutes, as well as occasional decelerations (not necessarily associated with the occasional contractions that were observed) which were "blunted" (a flat decrease in fetal heart rate, then back to baseline), which was consistent with compromised or abnormal brain function dating from the time of admission. Given the transverse lie, spontaneous rupture of the membranes, slight meconium-stained fluid, and the presence of uterine fibroids, Dr. Selbst elected to proceed with a cesarean section. Mrs. Tracey was transported to the operating room, where she was noted on the table with anesthesia commenced at 7:15 a.m. Surgery started at 7:47 a.m., and James was delivered at 7:55 a.m., approximately 3 hours after Mrs. Tracey's membranes had ruptured. The operative note, following the commencement of surgery reads as follows: A hand was placed inside of the uterus. The baby was noted to be a transverse lie with the back down and the head in the left upper part of the uterus, it was converted to a breech and attempted delivery was as such. However, it was difficult to deliver the breech through the lower segment incision because at this point a posterior fibroid, bulging well into the lower uterine cavity; was noted. The uterine incision was extended into a low-vertical fashion and the right rectus abdominal muscle was also transected for more space. After this has been completed, the breech was delivered and once the breech had been delivered, the rest of the body easily followed without any difficulty. Of note is the fact that there was minimal amniotic fluid and no significant meconium noted at the time of birth, there was no meconium noted on the baby at delivery: It was a viable male infant, Apgar scores of 5 and 8, weight 7 lbs., 5 oz. No nuchal cord [around the neck] was noted at delivery. The cord was clamped twice and cut with a bandage scissors and the baby was handed to the Neonatology team, including Dr. Mitchell Stern who was present for the delivery. As noted, no significant meconium was noted at birth, and laryngoscopy revealed the cords were clear. Moreover, no placental abnormalities were noted, and no arterial blood gas PH was taken from the blood extraced from the umbilical cord after birth. Following delivery, James evidenced decreased tone, grunting, and decreased movement of the left arm, and received positive pressure ventilation with ambu bag and mask in the delivery room. Apgars of 4 and 8 were assigned at one and five minutes, respectively. Initial impression (diagnosis) was perinatal depression, rule out left Erb's palsy. The Apgar scores assigned to James are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and skin color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute James' Apgar score totaled 5, with reflex irritability being graded at 2; heart rate, respiratory effort, and color being graded at 1 each; and muscle tone being graded at 0. At five minutes, James' Apgar score totaled 8, with heart rate, respiratory effort, and reflex irritability being graded at 2 each, and muscle tone and color being at 1 each. While the one minute Apgar was a little low, the five minute Apgar was quite normal. At approximately 8:05 a.m., James was transported to the neonatal intensive care unit (NICU) for further evaluation and management. On admission, physical examination revealed a hypotonic infant with decreased aeration bilaterally, grunting, retracting, no movement of the left arm, a hyperpigmented area on the chest, and two skin tags below the nipples. The remainder of the physical examination was essentially normal for age. Following admission, James was placed on NCPAP+5 to address his respiratory distress. Chest x-rays (CXRs) were consistent with bilateral interstitial densities with a small pneumothorax on the right. No chest tube was required and renal sonogram was normal. James' course in the neonatal intensive care unit was uneventful until approximately 3 to 4 hours of life (11:15 a.m.) when he presented with apnea secondary to probable seizure activity. At the time, James was intubated and placed on a Bear Cub ventilator, and he was started on Phenobarbital and Dilantin. CT scan of the brain was ordered. The CT of the brain, taken July 23, 1995, was negative or, stated differently, did not reveal any brain injury. 3/ However, an EEG taken the morning of July 24, 1995, was interpreted as "markedly abnormal" due to: Depressed and invariable background Electrographic-clinical ictal events . . . These findings are consistent with a diffuse encephalopathy as well as greater cortical dysfunction and epilepiogenicity over the left posterior quadrants . . . . An MRI of July 27, 1995, evidenced mild cerebral edema, and a repeat CT scan of the brain on August 5, 1995, revealed the following: There is marked diffuse decreased attenuation throughout the cerebral hemispheres bilaterally sparing the basal ganglia, cerebellum and brain stem likely secondary to severe hypoxic episode. No focal parenchymal masses are noted. There is no mid line shift or mass effect. The ventricles are symmetrical and not dilated. These changes are progressive when compared with the prior examination dated 7-23-95. IMPRESSION: 1. DIFFUSE DECREASED DENSITY THROUGHOUT THE CEREBRAL HEMISPHERES BILATERALLY SPARING THE BASAL GANGLIA, CEREBELLUM, AND BRAIN STEM CONSISTENT WITH DIFFUSE SEVERE [HYPOXIC ISCHEMIC ENCEPHALOPATHY (HIE)]. James was stabilized and ultimately discharged from Plantation General Hospital on August 5, 1995, to the care of his parents. At the time, James was on Phenobarbital, without evidence of seizure activity, and he was scheduled for follow-up appointments (within one week) with his pediatrician and pediatric neurologist. Discharge diagnoses were as follows: 38 wk average gestational male Perinatal depression Hypoxic ischemic encephalopathy Sepsis ruled out Cesarean section Erb's palsy ruled out Pneumothorax Abnormal liver function studies. Of note, the records of Plantation General Hospital revealed no impression or opinion as to the cause or timing of the hypoxic ischemic event which resulted in James' brain injury. 4/ The dispute regarding compensability Here, the competent proof is compelling, and not subject to debate, that James suffered an injury to his brain caused by oxygen deprivation that rendered him permanently and substantially mentally and physically impaired. 5/ What is disputed, and must be resolved, is the timing of James' injury or stated otherwise, whether such injury "occurred[ed] in the course of labor, delivery, or resuscitation in the immediate post- delivery period." Section 766.302(2), Florida Statutes. With regard to such issue, Petitioners are of the view that James' brain injury was an ongoing process which occurred between the time the mother's membranes ruptured (the onset of labor) and James was delivered. In contrast, Respondent is of the view that Mrs. Tracey was not in labor, as that term is used in the Plan, and that, in any event, the proof is not consistent with brain injury having occurred contemporaneously with or post- rupture of the membranes (if such rupture signaled the onset of labor) but, rather, at a time predating such event. 6/ The timing of James' neurological injury In addressing the timing of James' injury, it is worthy of note that where, as here, the proof demonstrates that the infant suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired, the Petitioners/Claimants are entitled to the benefit of a rebuttable presumption that the injury occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital. Section 766.309(1)(a), Florida Statutes. 7/ Consequently, absent persuasive proof that, as contended by Respondent, James' injury predated Mrs. Tracey's admission to the hospital and without or prior to the onset of labor, it must be concluded that he suffered a "birth-related neurological injury" as defined by law, and that the subject claim is compensable. 7/ Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Addressing first the issue of labor, it is, as heretofore noted, Respondent's contention that Mrs. Tracey was never in labor and, consequently, James' could not have suffered a "birth-related neurological injury," as that term is defined by the Plan. Here, Respondent's contention is not well founded. The Legislature has not chosen to define "labor," as that word is used in the phrase "in the course of labor, delivery, or resuscitation in the immediate post-delivery period." When words used in a statute are not defined, "they must be construed according to their plain and ordinary meaning, or according to the meaning assigned to the terms by the class of persons within the purview of the statute." Florida East Coast Industries, Inc. v. Department of Community Affairs, 677 So. 2d 357, 362 (Fla. 1st DCA 1996). See Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984). If necessary, the plain, ordinary meaning of a word can be found by looking in a dictionary. Gardner v. Johnson, 451 So. 2d 477 (Fla. 1984), and Hernando County v. Florida Public Service Commission, 685 So. 2d 48 (Fla. 1st DCA 1996). Pertinent to this case, Webster's New Twentieth Century Dictionary, Unabridged, Second Edition, describes the meaning of "labor" as follows: . . . in medicine, the process of childbirth; parturition; especially, the muscular contractions of giving birth. To like effect, but more pertinent to the usage of the word in medicine, is the meaning ascribed to "labor" by Dorland's Illustrated Medical Dictionary, Twenty-eighth Edition, as follows: . . . the function of the female organism by which the product of conception is expelled from the uterus through the vagina to the outside world. Labor may be divided into four stages: The first (the stage of cervical dilatation) begins with the onset of regular uterine contractions and ends when the os is completely dilated. The second stage (stage of expulsion) extends from the end of the first stage until the expulsion of the infant is completed. The third stage (placental stage) extends from the expulsion of the child until the placenta and membranes are expelled. The fourth stage denotes the hour or two after delivery, when uterine tone is established. Called also childbirth, delivery, and parturition. See also labor pains, under pain. (Emphasis in original.) Dorland's further describes the meaning of false labor pains and labor pains as follows: false p's, ineffective pains which resemble labor pains, but which are not accompanied by effacement and dilatation of the cervix. * * * labor p's, the rhythmic pains of increasing severity and frequency, caused by contractions of the uterus during childbirth. Accord, Taber's Cyclopedic Medical Dictionary (1997), and Mosby's Medical Dictionary, Fourth Edition (1994). 8/ Given the commonly understood meaning of the term "labor," it must be concluded, contrary to Respondent's contention, that, upon presentation to Plantation General Hospital, and dating most likely to the rupture of her membranes, Mrs. Tracey was in "labor" (first stage), as that term is used in the Plan. Addressing next the timing of James' injury, it must be concluded that the proof does not demonstrate (or allow a conclusion to be drawn with any sense of confidence) that, more likely than not, James' brain injury occurred contemporaneously with or post-rupture of the membranes, or, stated differently, during the course of labor or delivery. Rather, it is more likely that such injury predated rupture of the membranes and labor, and was not associated with any event which may have occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period. In reaching the foregoing conclusion, it is observed that the presence of meconium upon rupture of the membranes is consistent with the infant having undergone a stressful event prior to the onset of premature contractions. Moreover, the color and texture of the meconium, brown-green, as opposed to a thick, particulate green, is consistent with an old, as opposed to recent, passage of meconium. Most importantly, the fetal heart monitoring from the time of admission to the hospital, and continuing thereafter for approximately one hour and twenty minutes was consistent with previous fetal compromise and failed to reflect any acute or immediate hypoxic event. Indeed, Mrs. Tracey's contractions were mild and infrequent, and the few decelerations noted were mild and not persistent. Moreover, there was no cord impediment, no cord around the neck of the infant, and no noted problems with the placenta. Finally, the cesarean delivery was not stressful or traumatic, and James' presentation post-delivery was not consistent with the severe consequences one would ordinarily associate with an acute insult at or around the time of birth. For example, James' Apgars were within the normal range, his breathing at birth was essentially stable, and he did not evidence severe metabolic changes. Similarly, there was no evidence of profound systemic compromise (damage to multiple organ systems) that one would typically associate with an acute hypoxic ischemic event at or about the time of delivery. On balance, the proof points, with reasonable medical certainty, to an hypoxic event (of unknown cause) which occurred within the 48-hour interval prior to rupture of the membranes. 9/
The Issue Whether Jacqueline Simone Jackson (Jacqueline), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' settlement of a civil suit against the hospital where Jacqueline was born for negligence associated with her birth bars them from recovery of an award under the Plan. Whether the participating physicians complied with the notice provisions of the Plan.
Findings Of Fact Findings related to compensability Tracie Turner Jackson and Ulysses Bernard Jackson are the natural parents and guardians of Jacqueline Simone Jackson, a minor. Jacqueline was born a live infant on December 8, 1999, at Orlando Regional Healthcare System, d/b/a Arnold Palmer Hospital for Women and Children (Arnold Palmer Hospital), a licensed hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Jacqueline's birth were Alejandro J. Pena, M.D., and Marc W. Bischof, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Jacqueline suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. The settlement with Arnold Palmer Hospital In 2002, Tracie Turner Jackson and Ulysses Bernard Jackson, individually and as parents and natural guardians of their minor daughter, Jacqueline Simone Jackson, Plaintiffs, filed a medical malpractice claim arising out of the birth of Jacqueline against Orlando Regional Health Care System, Inc., d/b/a Arnold Palmer Hospital for Women and Children; Alejandro J. Pena, M.D.; Marc W. Bischof, M.D.; Physician Associates of Florida, Inc.; T. Zinkil, R.N.; S. Furgus, R.N.; Nancy Ruiz, R.N.; L. Baker, R.N.; T. Flyn, R.N.; and Nancy Ostrum, R.N., Defendants, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, Case No. 2002-CA-6770 Div. 34. A settlement was reached with Arnold Palmer Hospital, but the case against Dr. Pena, Dr. Bischof, and Physician Associates of Florida, Inc., remained pending.3 Given Petitioners' settlement with Arnold Palmer Hospital, and the provisions of Section 766.304, Florida Statutes (1999)4("An action may not be brought under ss. 766.301- 766.316 if the claimant recovers or final judgment is entered."), Petitioners and Respondent stipulated that "Petitioners are not entitled to any actual payment or award from NICA, even if a finding is made that the claim is compensable and adequate notice was given." (Petitioners' letter of November 18, 2004, filed November 19, 2004, and Respondent's letter of November 16, 2004, filed November 16, 2004.) The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the physicians' claim of Plan immunity by averring that the participating physicians who delivered obstetrical services at Jacqueline's birth (Doctors Pena and Bischof) failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether either participating physician gave the required notice. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (See, e.g., Petitioners' Exhibit 2, the NICA brochure, "This brochure is prepared in accordance with the mandate of [Section] 766.316, Florida Statutes.") Findings related to the participating physicians and notice Mrs. Jackson received her prenatal care at the Longwood Center, one of 7 offices in the Orlando area operated by Physician Associates of Florida (PAF), a group practice comprised of 35 physicians, including 16 obstetrician- gynecologists. (See, e.g., Intervenors' Exhibits 1, 2, 4, and 6.) At the time, four obstetricians staffed the OB-GYN department at the Longwood Office, Dr. Marc Bischof, who provided obstetrical services during Jacqueline's birth; Dr. Robert Bowels; Dr. Peter Perry; and Dr. Jose Lopez-Cintron. However, as a group practice, all obstetricians rotated delivery calls at the hospital, so it was possible, as occurred in this case with Dr. Pena, that a doctor from a different office would participate in the delivery. Notably, all obstetricians associated with PAF were participating physicians in the Plan. On April 12, 1999, Mrs. Jackson presented to the Longwood Center for her initial visit. At the time, consistent with established routine, the receptionist provided Mrs. Jackson with a packet of information that included a number of forms for her to complete and sign, including: a Patient Information form; a Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form; a Triple Test Form (a screening test for Down's Syndrome); a Prenatal Diagnosis Screening Questionnaire; and a Notice to Obstetrical Patient (to acknowledge receipt of the NICA brochure that was, indisputably, included in the packet). The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by Physician Associates of Florida prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that [5] is a participating physician in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), 1435 Piedmont Drive East, Suite 101, Tallahassee, Florida 32312 1-800-398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 199 . Signature (NAME OF PATIENT) Social Security No.: Attest: (Nurse or Physician) Date: Mrs. Jackson completed each of the forms, including the Notice to Obstetric Patient, by providing the requested information, and then signing and dating the forms. (Petitioners' Exhibit 1). Here, there is no dispute that Mrs. Jackson signed the Notice to Obstetric Patient or that she received a copy of the NICA brochure on her initial visit. There is likewise no dispute that, given the blank space, the notice form was inadequate to provide notice that Dr. Bischof, Dr. Pena, or any obstetrician associated with PAF was a participating physician in the Plan. Rather, what is disputed is whether, as contended by Intervenors, Mrs. Jackson was told during her initial visit that all obstetricians in PAF were participants in the Plan.6 Regarding Mrs. Jackson's initial visit, the proof demonstrates that, following completion of the paperwork, Mrs. Jackson was seen by Nurse Posey for her initial interview. Typically, such visits lasted approximately 45 minutes, with 30 minutes spent reviewing the patient's history, as well as the paperwork she received in the packet, and 15 minutes spent on a physical examination. According to Nurse Posey, she conducted a minimum of two initial prenatal interviews daily, five days a week, and followed the same procedure during each interview. As described by Nurse Posey, during the initial interview she always discussed each form (the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form, and the Notice to Obstetric Patient) individually, and when the form had been discussed she would co-sign the form. (Transcript, pp. 65- 68) Moreover, as for the NICA program, Nurse Posey always confirmed that the patient had received the NICA brochure, and told the patient that PAF's obstetrical service was "a group practice; that anyone in the group could do the delivery; and that each member of the group was a participant in the NICA program." (Transcript, pp. 68-70) Finally, Nurse Posey documented her routine through an entry on the prenatal flow sheet (Intervenors' Exhibit 6), which noted she had provided the patient information on the various tests, as well as the NICA brochure and notification. Here, that entry read: "Pt given info on diet, exercise, HIV screening, triple test, NICA pamphlet & notification & cord blood storage." (Petitioners' Exhibit 1, Intervenors' Exhibit 6, and Transcript, pp. 70-78.) In this case, Nurse Posey was confident she had followed her routine, since she would not have co-signed the various documents, such as the Notice to Obstetric Patient, or made the entry on the prenatal flow sheet unless she had done so. In response to the evidence offered by Intervenors on the notice issue, Mrs. Jackson testified there was never a discussion of the NICA program, and she was never told the physicians associated with PAF's obstetrical program were participating physicians in the Plan. However, Mrs. Jackson acknowledged that Nurse Posey questioned her regarding her medical history, and that she explained the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, and the HIV form. (Transcript, pp. 141-145) As for the Notice to Obstetric Patient, Mrs. Jackson initially denied having read it; then testified she may have read it "briefly," but "didn't go into details" or "seek out specifics"; and finally stated she could not remember reading the form, but could not deny that she may have read it. (Transcript, pp. 150, 151, 156-159) Here, giving due consideration to the proof, it must be resolved that the more persuasive proof supports the conclusion that, more likely than not, Nurse Posey, consistent with her routine, discussed the NICA program with Mrs. Jackson on her initial visit, and informed Mrs. Jackson that the physicians associated with PAF's obstetrical program were participating physicians in the Plan. In so concluding, it is noted that, but for the NICA program, Mrs. Jackson acknowledged Nurse Posey otherwise followed her routine; that it is unlikely, given such consistency, Nurse Posey would not have also discussed the NICA program; that Nurse Posey, as was her routine, co-signed each of the forms she discussed with Mrs. Jackson, including the Notice to Obstetric Patient; that Nurse Posey, as was her routine, documented her activity on the prenatal flow sheet; and that Mrs. Jackson evidenced little recall of the documents she signed or the discussions she had with Nurse Posey. Finally, Nurse Posey's testimony was logical, consistent, and credible, whereas Mrs. Jackson's testimony was often equivocal. Jurisdiction
Findings Of Fact By stipulation filed November 8, 1995, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301 - 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the Association) by Susan Petty Rogers and Calyvin Rogers (the petitioners) for benefits under Chapter 766.301 - 766.316, 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 the parties agree the medical records of Chelsea Rogers reveal that she suffers form an injury to the right brachial plexus. A brachial plexus injury is not, however, a brain or spinal cord injury. Chelsea has also been diagnosed by T. Wayne Conger, Ph.D., a neuropsychologist, as having a cognitive disorder which may be related to her birth. The cognitive disorder is not, however, a brain injury " which renders the infant permanently and substantially mentally and physically impaired." Therefore, Chelsea does not 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, Chelsea Rogers was born at Tallahassee Memorial Hospital on April 5, 1990, and that the said hospital was a licensed Florida hospital. The participating physician who was present at the birth and delivered obstetrical services was A. J. Brickler, M.D. That the infant, Chelsea Rogers, weighed 4,510 grams which is in excess of 2,500 grams. 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 Chelsea Rogers did not suffer a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes. The medical records and other documentation of record in this case reveal, consistent with the parties' stipulation, that Chelsea Rogers suffered a right brachial plexus injury at birth. A brachial plexus injury is not, however, a brain or spinal cord injury and such injury did not render her substantially physically impaired. Moreover, while Chelsea Rogers may have a cognitive disorder, she is not substantially mentally impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the petition for compensation filed by Susan Petty Rogers and Calyvin Rogers, as parents and natural guardians of Chelsea Rogers, a minor, be and the same is hereby denied with prejudice. DONE AND ORDERED this 14th day of November 1995 in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November 1995.
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.
