The Issue At issue is whether David Britt, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Fundamental findings Petitioners, Sandra Britt nee Sandra Nap and Frank Britt, are the parents and natural guardians of David Britt, a minor. David was born a live infant on November 9, 1997, at Tampa General Hospital, a hospital located in Tampa, Florida, and his birth weight exceeded 2,500 grams. The physicians providing obstetrical services during David's birth included the attending physician, Catherine Lynch, M.D., an attending faculty physician with the University of South Florida, College of Medicine, as well as a number of resident physicians from the University of South Florida, College of Medicine. At the time, Dr. Lynch was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes, and the resident physicians, supervised by Dr. Lynch, were deemed participating physicians under the provisions of Section 766.314(4)(a), Florida Statutes.2 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded that David suffered a "birth- related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, proposes to accept the claim as compensable under the Plan. NICA's conclusion is grossly consistent with the proof and, consequently, its proposal to accept the claim as compensable is approved. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the healthcare providers' claim of Plan immunity by contending that the hospital and the attending physician3 failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the healthcare providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, supra. As a prelude to resolving the notice issue, it is noted that Mrs. Britt received her prenatal and intrapartum care at the Genesis Clinic (an obstetric and gynecologic health care facility) and Tampa General Hospital (TGH), facilities owned and operated by the Hillsborough County Hospital Authority. Pertinent to this case, the proof demonstrates that TGH manages the clinic, and provides the necessary nursing and clerical workers; however, prenatal care and intrapartum care are provided, pursuant to an "affiliation agreement," by physicians (faculty and resident) associated with the University of South Florida, College of Medicine, Department of Obstetrics and Gynecology, who are employed by the Florida Board of Regents. Regarding her prenatal care, the proof demonstrates that Mrs. Britt's initial visit to the Genesis Clinic occurred on March 26, 1997.4 Typically, such a visit would include registration, financial consultation, a tour and orientation, and prenatal lab work. Here, as would be expected, Mrs. Britt initially presented to the front desk where she registered (signed in) and provided certain basic information about herself to complete a patient profile. Following completion of the patient profile, Mrs. Britt presented to the financial counselor, whose office was adjacent to the front desk and faced the patient waiting area. During the course of that meeting, the proof demonstrates that the financial counselor (Norma Kringel, currently known as Norma Kringel Tooley) reviewed Mrs. Britt's patient profile and, apparently satisfied that Mrs. Britt was Medicaid eligible, provided her with a packet (a plastic bag) containing various samples and child care information, as well as a Genesis Social Assessment form to complete. Following completion of that form, the financial consultant provided Mrs. Britt with a brochure prepared by NICA titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Notably, the brochure included the following language: 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. Notwithstanding, while the consultant encouraged Mrs. Britt to read the brochure, she did not identify the physicians who would be providing Mrs. Britt's obstetrical care or advise her (as she easily could have) that the physicians who would be providing such care were participants in the Plan.5 The next step in the process presents the most problematic issues with regard to notice. According to the proof, at the conclusion of her meeting with the financial consultant, a new patient, such as Mrs. Britt, was directed to the patient waiting area, where she was to await the health education coordinator (Patricia Ogden, R.N.) for an orientation tour of the facility and classroom presentation. According to Nurse Ogden, it was her established procedure to collect the new patients in the waiting area, and then proceed with a tour of the facility, explaining the various services that were available, followed by a classroom session. During the course of the tour, it was Nurse Ogden's practice to explain to the patients that TGH provides prenatal care at the clinic in "affiliation" with the University of South Florida, College of Medicine, and that the physicians who would be providing obstetrical care were residents (M.D.s) now specializing in obstetrics and gynecology and that their services were under the direct supervision of an attending faculty physician. During the classroom session, it was Nurse Ogden's practice to, inter alia, hold up the "Peace of Mind" brochure to ensure that each new patient had one, explain that the affiliated group of physicians from the University of South Florida who would be providing their obstetric care were participants in the Plan, and advise the patients that if they had any questions regarding the Plan they should consult with their physicians. Following the classroom session, the new patients would then proceed to the final stage of their initial visit, prenatal lab work. From the routine practice established by the clinic for an initial visit by new patients, Intervenors suggest it is reasonable to infer that Mrs. Britt participated in the tour and classroom session, and was therefore informed as to the identity of her physicians (as a group) and that they were participants in the Plan. As additional proof that Mrs. Britt participated in the tour and classroom session, Intervenors point to the Progress Notes of Mrs. Britt's initial visit of March 26, 1997, which contains a check mark next to an item titled "Orientation tour and class session attended by patient," signed by Nurse Ogden. Notably, however, Nurse Ogden took no roll call or otherwise identified the patients who accompanied her on the tour or participated in the classroom session, and executed the Progress Notes confirming a patient's attendance on the tour and at the classroom session based solely on a list of new patients who had registered (signed in) at the reception desk that day. Consequently, the Progress Notes provide no independent or compelling proof, distinguishable from that which might be inferred from the clinic's routine practice, that Mrs. Britt attended the orientation tour and class session on March 26, 1997. Contrasted with the conclusion Intervenors would suggest be drawn from the Clinic's routine procedure for new patients, Mrs. Britt testified that she did not participate in an orientation tour and class session, and was never informed that the physicians who would provide her obstetrical care were participants in the Plan.6 As independent evidence that she did not follow the routine established for new patients, Petitioners point to the clinic's records, which reveal that she did not, as would be routine, present for prenatal lab work on March 26, 1997, but returned to the clinic on March 27, 1997, for that lab work. Given the proof, it cannot be resolved with any degree of confidence that, more likely than not, Mrs. Britt attended the orientation tour and classroom session. Consequently, since the tour and classroom session was the only occasion (apparent from the record) that patients were advised that their physicians were participants in the Plan, it must be resolved that the proof fails to support the conclusion that Mrs. Britt was ever provided notice that her physicians were participants in the Plan. While the proof failed to demonstrate that Mrs. Britt received notice on behalf of the participating physicians, it did demonstrate that TGH provided timely pre-delivery notice to Mrs. Britt, as envisioned by Section 766.316, Florida Statutes. In this regard, the proof demonstrated that on October 19, 1997, during the course of pre-registration at TGH, Mrs. Britt was again given a copy of the brochure (prepared by NICA) titled "Peace of Mind for an Unexpected Problem," which, as previously noted, contained a concise explanation of the patients' rights and limitations under the Plan.
The Issue At issue is whether Clorinda Colwell, a minor, suffered a "birth-related neurological injury," as defined by Section 766.302(2).1
Findings Of Fact Preliminary Findings Petitioners, Stephen Colwell and Clorinda Colwell, are the natural parents and guardians of Clorinda Colwell, a minor. Clorinda was born a live infant on December 6, 2002, at Central Florida Regional Hospital, a hospital located in Sanford, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Clorinda's birth was John Parker, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2). See also Sections 766.309 and 766.31. Here, indisputably, the record demonstrates that Clorinda's development has been age appropriate, and she evidences neither mental impairment nor physical impairment, much less a substantial mental and physical impairment. Consequently, for reasons appearing more fully in the Conclusions of Law, Clorinda does not qualify for coverage under the Plan.
The Issue At issue is whether Wesley Dunaway, III, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Daphne Waller is the natural mother of Wesley Dunaway, III, a minor. Wesley was born a live infant on February 11, 2003,2 at North Florida Regional Medical Center, a licensed hospital located in Gainesville, Alachua County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Wesley's birth was Anthony Agrios, 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. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, indisputably, Wesley is permanently and substantially mentally and physically impaired.3 What remains to resolve is whether the record supports the conclusion that, more likely than not, Wesley's neurologic impairment resulted from an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. The cause and timing of Wesley's neurologic impairment To address the cause and timing of Wesley's neurologic impairment, the parties offered medical records related to, inter alia, Ms. Waller's antepartum course; those associated with Wesley's birth and subsequent development; and the opinions of Dr. Michael Duchowny, a pediatric neurologist, and Dr. Donald Willis, an obstetrician, regarding the likely etiology of Wesley's impairment. (Exhibits 1-13). As for the etiology of Wesley's neurologic impairment, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Wesley on October 25, 2004, and review of the medical records, that, while of unknown etiology, Wesley's neurologic impairment was most likely prenatal (developmental) in origin, having occurred prior to the onset of labor, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. As for Dr. Willis, he, like Dr. Duchowny, was of the opinion that the medical records failed to support a conclusion that Wesley's brain damage was associated with the birth process. Finally, the medical records, including the observations of the physicians who have treated Wesley, while unrevealing as to etiology, also speak to the likelihood of a developmental disorder, as opposed to birth trauma, as the cause of Wesley's neurologic impairment.4 Given the record, it must be resolved that Wesley's impairments were, more likely than not, occasioned by a developmental abnormality, that preceded the onset of labor, and not by an injury to the brain occurring in the course of labor, delivery, or resuscitation. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
The Issue At issue in this proceeding is whether Paul Bryant Sivley, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Respondent, in light of such failure, declined the opportunity to offer any evidence. Consequently, there being no proof, it cannot be factually resolved whether Paul Bryant Sivley, a minor, suffered a "birth- related neurological injury" as alleged in the claim for benefits.
