The Issue Whether notice was accorded the patient, as contemplated by section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an emergency medical condition, as defined in section 395.002(8), or the giving of notice was not practicable.
Findings Of Fact On April 8, 2014, at approximately 7:33 a.m., Petitioner, Priscilla Franco, presented to Fisherman’s Community Hospital (Fisherman’s) in Marathon, Florida. At the time, she was 33 weeks and 6 days pregnant. Her primary complaint at Fisherman’s was abdominal pain. It was noted that her lower abdominal pain was sharp and had begun at 4:00 a.m. At 7:40 a.m., her pain was noted to be a 5 out of 10 on a 10-point pain scale. At 7:51 a.m., Ms. Franco was diagnosed at Fisherman’s with “active labor, premature.”1/ As Fisherman’s does not have obstetrical services available, a transfer was initiated. At approximately 8:45 a.m., Sabrya Ishoof, M.D., accepted the transfer of Ms. Franco to South Miami. Dr. Ishoof is a self-employed obstetrician/gynecologist. At all times relevant to this proceeding, she held staff privileges at South Miami. On April 8, 2014, she was called in to treat Ms. Franco as the on-call emergency obstetrician. Prior to this date, Dr. Ishoof and Petitioner did not have a physician- patient relationship for obstetrical services. Similarly, Ms. Franco did not have such a relationship with South Miami. At approximately 9:54 a.m., Ms. Franco was transported via helicopter provided by Lifenet from Fisherman’s to South Miami, where she arrived at approximately 11:15 a.m. Upon arrival, Ms. Franco was taken to the antepartum unit, where she was initially assessed and examined by Carmen Davis, R.N., and Melissa Luna, R.N. The initial assessments included, inter alia, placing an external fetal monitor on Ms. Franco and performing a vaginal examination. The vaginal examination revealed that Ms. Franco’s cervix was 3 cm dialated and had thinned to 60 percent effacement. At approximately 11:37, Nurse Luna documented that Ms. Franco was having uterine contractions, lasting 30 to 60 seconds. The contractions resulted in cramping abdominal pain. The pain was described as a 5-6 on the 10-point pain scale. At 11:38 a.m., this assessment was communicated to Dr. Ishoof. Two minutes later, Dr. Ishoof issued her Admission Order, wherein she admitted Ms. Franco to the antepartum unit and ordered magnesium, antibiotics, insulin, as well as an ultrasound. The decision to admit Ms. Franco was based upon the following: Ms. Franco’s prior history of a preterm Cesarean delivery, cervical dilation, and uterine contractions--being in active labor. At 12:06 p.m., Nurse Luna documented that Ms. Franco was having uterine contractions lasting 50 to 60 seconds. At 12:13 p.m., Nurse Davis contacted Dr. Ishoof regarding the external fetal monitoring interpretation, the contraction pattern, pain assessment, and interventions performed. Nurse Davis, at approximately 12:14 p.m., proceeded with admission paperwork with Ms. Franco. A packet of information was provided to Ms. Franco, which, inter alia, included a NICA brochure, entitled “A Peace of Mind for an Unexpected Problem,” and a form acknowledging receipt of the brochure, entitled “Notice to Obstetric Patient.” The notice language, which is contained on a document bearing the label for South Miami, provides as follows: NOTICE TO OBSTETRIC PATIENT I have been furnished information by the hospital prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that my doctor may be 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), P.O. Box 14567, Tallahassee, Florida 32317-4567, (800) 398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. Nurse Davis credibly testified that, while she does not have a specific recollection of Ms. Franco, her routine practice was to provide the NICA brochure and notice acknowledging receipt to her patients upon admission. Specifically, Nurse Davis testified that she would provide the documents and request the patient to sign the same. Nurse Davis would then sign the document acknowledging the patient’s signature and receipt. In this matter, Ms. Franco’s signature appears under the above- referenced notice. The document further bears the signature of Nurse Davis as a witness to Ms. Franco’s signature. While Ms. Franco testified that she did not receive the NICA brochure, Ms. Franco’s testimony on this fact is not credited. The better evidence establishes that Ms. Franco was provided the NICA brochure as described by Nurse Davis and acknowledged by Ms. Franco’s signature. At 12:34 p.m., Dr. Ishoof ordered Ms. Franco to be prepared for a Cesarean section delivery. Dallas was delivered at 1:51 p.m. It is undisputed that Dr. Ishoof was the physician providing obstetric services at Dallas’s birth. The evidence established that Dr. Ishoof was a Plan-participating physician at that time. The evidence further established that South Miami was a Plan-participating hospital at the time of Dallas’s birth.
The Issue The issue in this case is the amount of award to which Petitioner is entitled pursuant to the Final Order entered on May 2, 2013.
Findings Of Fact A Final Order was entered on May 2, 2013, finding that the injury sustained by Fatema Shakir was compensable under the NICA Plan. Counsel for Petitioner advised Respondent that Petitioner would accept the determination of compensability and demanded payment of parental award, payment of a Medicaid lien, attorney’s fees and costs, and future expenses. Respondent has paid Petitioner $100,000 as a lump sum parental award. As of June 23, 2014, the Florida Agency for Health Care Administration, Medicaid Third Party Liability Program has a lien against Fatema Shakir as a Medicaid recipient for $1,442,977.40. Counsel for Petitioner has not provided Respondent with documentation in support of the amount of attorney’s fees and costs which were incurred relating to the filing of the claim.
Conclusions For Petitioner: Ronald S. Gilbert, Esquire Colling, Gilbert, Wright and Carter, LLC 801 North Orange Avenue, Suite 830 Orlando, Florida 32801 For Respondent: M. Mark Bajalia, Esquire Bajalia, Sanders and Bajalia, P.A. 11512 Lake Mead Avenue, Suite 301 Jacksonville, Florida 32256 For Intervenors Shands Jacksonville Medical Center, Inc., and Aneesah Majieda Santiago, R.N.: S. William Fuller, Jr., Esquire Fuller, Mitchell, Hood & Stephens, LLC 2565 Barrington Circle Tallahassee, Florida 32308 For Intervenor Angela Jackson, R.N.: Sanjo Shane Shatley, Esquire Cole, Scott and Kissane, P.A. 4686 Sunbeam Road, Suite 201 Jacksonville, Florida 32257 For Intervenor University of Florida Board of Trustees: Eric P. Gibbs, Esquire Estes, Ingram, Foels, and Gibbs, P.A. Post Office Box 4974 Orlando, Florida 32802-4974
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
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 Whether Christian Ross Morrill, Jr., a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of an award to the parents, the reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees, and the amount owing for expenses previously incurred. Whether the administrative law judge has jurisdiction to determine the applicability of the willful and wanton exception to Plan exclusivity, set forth in Section 766.303(2), Florida Statutes (2007).1
Findings Of Fact Stipulated facts Monica Cordero and Christian R. Morrill, Sr., are the natural parents of Christian R. Morrill, Jr. (Christian), a deceased minor. Christian was born a live infant on June 21, 2007, at Helen Ellis Memorial Hospital, a licensed Florida hospital, located in Tarpon Springs, Florida, and his birth weight exceeded 2,500 grams. Christian died June 27, 2007. Obstetrical services were delivered at Christian's birth by Brooke Slaton, 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. The participating physician (Dr. Slaton) and the hospital (Helen Ellis Memorial Hospital) complied with the notice provisions of the Plan. Petitioners and NICA have further stipulated, which stipulation Intervenor "does not oppose . . . and intends to offer no evidence to rebut," that Christian suffered a "birth- related neurological injury," as defined by Section 766.302(2), Florida Statutes, in that he suffered 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 postdelivery period in the hospital, which rendered him permanently and substantially mentally and physically impaired. 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 . . . of a live infant weighing at least 2,500 grams for a single gestation . . . at birth 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' agreement that Christian suffered a "birth-related neurological injury" is consistent with the objective proof which demonstrates that Christian suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, and the immediate postdelivery period that, following withdrawal of life-support at day 6 after birth, resulted in death. Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The award Where, as here, 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, provides for an award of the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional 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. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity. 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. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program. * * * 1. 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. 2. Death benefit for the infant in an amount of $10,000. 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 determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Monica Cordero and Christian R. Morrill, Sr., as the parents of Christian, be awarded One hundred thousand dollars ($100,000.00), pursuant to Section 766.31(1)(b.)1., Florida Statutes, and a death benefit of Ten thousand dollars ($10,000.00), pursuant to Section 766.31(1)(b)2., Florida Statutes, all to be paid in lump sum. The parties have further agreed to an award of Two thousand six hundred twenty-five dollars ($2,625.00) for attorney's fees and other expenses incurred in connection with the filing of the claim. Moreover, the parties have agreed no monies are owing for past expenses. Such agreement is reasonable, and it is approved.
The Issue Whether Bryan Siravo has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Bryan Siravo (Bryan) is the natural son of Robert and Mauro Siravo. He was born a live infant on March 13, 1990, at Plantation General Hospital in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician delivering obstetrical services during the birth of Bryan was Edward Buonopane, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Bryan Siravo was delivered by cesarean section because of a breach presentation and maternal obesity. The delivery was without complications and Bryan presented with Apgar scores of 8 at one minute and 9 at five minutes. Resuscitation was not required in the immediate postdelivery period, and there was no evidence of fetal distress. After birth, Bryan was transported to the regular or newborn nursery and was found in a cyanotic state approximately three hours after birth. Bryan was subsequently transferred to the neonatal intensive care unit where he was intubated after about one hour. Bryan's condition continued to deteriorate over the next 24 hours and an echocardiogram revealed the presence of a large patent ductus arteriosus and heart valve insufficiency. Due to the continued deterioration of his condition, Bryan was transferred to Miami Children's Hospital on March 15, 1990. At Miami Children's Hospital, Bryan was diagnosed with respiratory distress syndrome type I, severe; a condition which impairs the ability to breath, and which arises after birth when the infant is required to breath outside the womb. Bryan also underwent multiple ultrasound and CT scans of the brain. These neuroimaging studies revealed the presence of a Grade IV intraventricular hemorrhage. Based on the credible proof of record, it is concluded that Bryan suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired. Such injury did not, however, occur during labor, delivery or resuscitation in the immediate post-delivery period. Rather, the proof demonstrated that the origins of Bryan's hemorrhage and his resultant neurologic injury were a combination of respiratory distress syndrome and patent ductive arteriosus, which began to operate after his delivery. Such mechanism, acting in consort, increased, over time, the pressure in the draining veins from Bryan's brain and, therefore, the pressure in his brain, with the consequent hemorrhage.
The Issue At issue in this proceeding is whether Jenna Kemper, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Nancy Kemper and Jeffery Kemper are the parents and natural guardians of Jenna Kemper (Jenna), a minor. Jenna was born a live infant on March 27, 1996, at Lakeland Regional Medical Center, a hospital located in Lakeland, Polk County, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Jenna was Keith Bernard Paredes, 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. Jenna's delivery at Lakeland Regional Medical Center on March 27, 1996, was apparently difficult due to her large birth weight, and when delivered she was noted to have suffered an injury to her upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, and is evidenced by diminished range of motion at the right elbow and an inability to freely elevate the right arm above neutrality at the shoulder. Jenna's brachio-plexus injury may reasonably be described as mild to moderate, and her impairment is most likely permanent. A brachial plexus injury, such as that suffered by Jenna during the course of her birth, is not, anatomically, a brain or spinal cord injury, and does not affect her mental abilities. Moreover, apart from the brachial plexus injury, Jenna was not shown to have suffered any other injury during the course of her birth. Consequently, the proof fails to demonstrate that Jenna suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate that she is presently permanently and substantially, mentally and physically impaired.
