Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. ist DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact The Petition named Dr. Szurkus as the physician providing obstetric services at Desmond’s birth on February 14, 2009. 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 Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) 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 ($5,000.00) 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. Dennis Szurkus indicates that on February 14, 2009, the date in which Dr. Szurkus participated in the delivery of Desmond Govan, as indicated in the Petitioner’s Petition for Benefits, Dr. Szurkus did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan until September 21, 2009. 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. Szurkus in relation to an exempt status for the year 2009. The physician payment history/report for Dr. Szurkus supports Mr. Daughtry’s affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that on February 14, 2009, Dr. Szurkus had not paid his $5,000 assessment for 2009. At the time of the birth of Desmond, Dr. Szurkus was not a participating physician in the Plan.
Findings Of Fact Based on the stipulation of Petitioner and NICA, which Intervenors have not challenged, the following facts are found: Cristen Jean Brown is the mother of Levi Jace Brown (Levi), and is the “Claimant” as defined in section 766.302(3). Levi incurred a “birth-related neurological injury” (the injury) as that term is defined in section 766.302(2), on or about August 28, 2015, which was the sole and proximate cause of his death on September 2, 2015. At birth, Levi weighed 3,190 grams. Heidi E. Disalvo, D.O. and MaryAnne Colalillo, M.D., rendered obstetrical services in the delivery of Levi and, at all material times, each was a “participating physician” as defined in section 766.302(7). Brandon Regional Hospital is a hospital located in Brandon, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Levi was born. On February 11, 2019, Petitioner filed the Petition, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth- Related Neurological Injury Compensation Plan (the Plan).
The Issue At issue in this proceeding is the acceptance of the subject claim for compensation, and the resolution of a dispute between the parents of the infant as to what award, if any, they should receive pursuant to Section 766.31(1)(b), Florida Statutes.
Findings Of Fact The Claim for Compensation Levi Wojtowicz (Levi) is the natural son of petitioner, Sarah Wojtowicz, and intervenor, James M. Wojtowicz. He was born a live infant on February 26, 1993, at Baptist Medical Center in Jacksonville, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Levi was John Bordelon, 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. Here the parties have stipulated, and based on such stipulation and the medical records of record it is found, that Levi suffered a "birth-related neurological injury" as defined by Section 766.302(2), Florida Statutes, in that he suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which rendered him permanently and substantially mentally and physically impaired. As a consequence of the foregoing, NICA has agreed that the subject claim is compensable, and that it will pay all "actual expenses" previously incurred and to be incurred in the future, "reasonable expenses" incurred in connection with the filing of the claim on behalf of petitioner, which pursuant to agreement the parties have established to be a reasonable attorney's fee of $5,747.00 and costs of $407.97, and the payment of an award of $100,000.00. Given the circumstances, the sole, remaining issue to be resolved is the appropriate apportionment of the award between the parents who, currently, are divorced. Apportionment of the Award to the Parents Sarah Wojtowicz (Sarah) and James Wojtowicz (James) were married July 11, 1987, in Edmore, Michigan. One child, Levi, the injured infant in the instant case, was born of that marriage. In January 1993, approximately six to eight weeks before Levi's birth, Sarah and James separated, and James removed himself from the marital home. Nothwithstanding, James was present when Levi was delivered by emergency cesarean section, and for the ensuing nine days. Thereafter, of the two months Levi was in the hospital James saw Levi "in the off hours [from the Navy] when he could get in there to see him." Between Levi's discharge from the hospital to the care of Sarah, and September 22, 1993, James visited with Levi on 7 occasions. Two of those times were for 45 minutes, one for 10 minutes, and four were for an entire day. Otherwise, the care of Levi was left to Sarah. On September 15, 1993, a final judgment of dissolution of marriage of James and Sarah Wojtowicz was rendered by the Circuit Court, Duval County, Florida, and the primary residence and custody of Levi was awarded to Sarah. Parental responsibility was, however, shared between them with regard to Levi. As to visitation, the final judgment provided: The Husband shall have reasonable and liberal visitation privileges with the minor child of the parties upon furnishing the Wife two (2) weeks notice of his intention to exercise said visitation. Said visitation shall include, but is not limited to, the following: Minimum two (2) weeks per year when the Husband is on leave; The Husband shall have visitation with the minor child of the parties on alternating Christmas days beginning in the calendar year 1994. The parties shall agree on a visitation schedule during the summer months closer to the time that the minor child is of school age. Said visitation, however, is contingent upon the fact that the minor child will remain within a 150 mile radius of the minor child's doctor due to his serious medical condition. Finally, the final judgment approved the parties' agreement that Sarah be allowed to leave the jurisdiction of the court and return to the State of Michigan with Levi. Consistent with the terms of the final judgment, Sarah returned to Michigan on September 22, 1993, and has continued to reside there with her parents, who assist her with the care of Levi. James remarried on December 5, 1993, and continues to reside in Jacksonville, Florida, with his new wife and an infant son born of that union. Since September 22, 1993, James has exercised his rights of visitation on only one occasion and that occurred for a six day period in October 1993 when he, as well as his parents, cared for Levi at his parents' home in Michigan. As to future visitation, James expressed a desire at hearing to again visit with Levi in December 1994; however, it is apparent that the demands of his new family and naval career, as well as the great distance that divides them, may affect that decision and severely limit any visitation James may choose to exercise. Under such circumstances, Sarah is the primary caretaker for Levi, with all its attendent responsibilities and sacrifices. As the primary caretaker for Levi, who is substantially mentally and physically impaired, the demands placed on Sarah are onerous. A typical day with Levi was described by her as follows: On a typical day that he gets say therapy at home one of the therapists comes in which is twice a week, three times every other week, Levi will wake up anywhere between 7 and 9 depending on what kind of a night he's had. Just recently he started having really bad nights again and we have to wake him up at 9. He gets fed at 9, 11, 1, 3, 5, 7, and 9 by bolus feeding. These feedings take about an hour a piece. It takes about 20 to 30 minutes to run in the milk, the formula, then you have to hold him upright for 20 to 30 minutes longer in order for his reflex not to lose all of the milk. So we have about an hour to an hour and 20 minutes in between feeds to give him everything else he needs. We can give him -- whenever we play with him, it's structured therapy, and I'm saying we because when I'm on the phone doing paperwork my mom is with him. She's my babysitter without pay. So we spend whatever time is in between there doing structured play with him either with his gross motor skills or fine motor skills. We also have to position Levi. He doesn't have any independent muscle control to sit. He cannot shift weight independently to relieve pressure. Fortunately, we haven't had any pressure source (sic) yet. So then when a therapist comes, she will work with Levi and I will stay in the room while she is working with him because she shows me what to do for the rest of the week or weeks depending on how Levi responds to things. I have bought a big ball for him that he gets facial therapy on. He's got a feeder chair that we can try to work with him on. He doesn't sit well so we work with that. At each feed he also gets exercise with his mouth and a brushing program that takes probably five minutes and I do that usually while I'm decompressing him while I'm feeding him, so it's all part of the process included in that hour. Also if we have to go to a doctor, we have to -- I try to schedule it so that we can leave in the hour after he's fed that we've got. We can drive down there and then we can feed him there, go to the appointment, feed him again, and then drive home. It usually involves either feeding him in the waiting room or in a restaurant. Q How about the evenings? A He gets a bath between his 9 and 11 o'clock feed and in between there there's also care for his stoma. It doesn't take a long time, but it's kind of routine and repetitive. In the evenings -- he doesn't sleep well at all. He has a sleeping pill right now that's also a seizure depressant so it acts as a sleeping pill too. The night before I came down here he was up for two and a half hours screaming excessively and nothing would calm him, that was worse than it had been just recently, but until he was about maybe a year old or a little later he would do that almost every night. Clearly, the demands placed on Sarah in the care for Levi leave her little time for other activities, and greatly exceed the demands assumed by the parent of an infant not so impaired as Levi. Under the circumstances, it is apparent that, as between them, the loss suffered by Sarah as a consequence of Levi's injury is grossly disproportionate to that suffered by James, and that such disparity warrants a similar distinction, as between them, in the apportionment of any award. Accordingly, based on such disparity and the legal principles discussed infra, it is found that of an award of $100,000, Sarah Wojtowicz is eligible to receive $95,000 and James Wojtowicz is eligible to receive $5,000.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is ORDERED that: The claim for compensation filed by Sarah Wojtowicz, as parent and natural guardian of Levi Wojtowicz, a minor, and NICA's acceptance of that claim for compensation be and the same is hereby approved. NICA shall make immediate payment of all actual expenses, as defined by Section 766.31(1)(a), Florida Statutes, previously incurred and shall make payment for future expenses as incurred. Petitioner shall recover from NICA, as reasonable expenses incurred in connection with the filing of the claim for compensation, a reasonable attorney's fee of $5,747.00 and costs of $407.97. Sarah Wojtowicz and James Wojtowicz, as the parents of Levi, are entitled to an award of $100,000, of which Sarah Wojtowicz is entitled to $95,000, and James Wojtowicz is entitled to $5,000. The parties are accorded thirty (30) days from the date of this order to resolve, subject to approval by the Hearing Officer, the manner in which the award to James and Sarah Wojtowicz should be paid. If not resolved within such period, the parties will so advise the Hearing Officer, and a hearing will be scheduled to resolve such issue. Pursuant to Section 766.312, Florida Statutes, jurisdiction is reserved to resolve any disputes should they arise, regarding the parties compliance with the terms of this final order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of July, 1994. 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 22nd day of July 1994.
Findings Of Fact The Petition named Dr. Winger as the physician providing obstetric services at River's birth on July 25, 2010. Attached to the motion 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. Douglas Winger indicates that in the year 2010, the year in which Dr. Winger participated in the delivery of River Hawley, as indicated in the Petition for Benefits, Dr. Winger 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. Winger in relation to an exempt status for the year 2010. To the contrary, the attached "NICA CARES physician payment history/report" shows that in 2010, Dr. Winger paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non- participating, non-exempt physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. No party has offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Winger was not a participating physician in the Plan at the time of River's birth. Neither Petitioners nor Intervenors have requested additional discovery time, and Petitioners have not moved for leave to amend the Petition to name any additional physician as rendering obstetrical services in connection with River's birth. Dr. Winger was not a participating physician at the time of River's birth on July 25, 2010.
The Issue At issue in this proceeding is whether Dwayne Godfrey, a deceased minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary matters Dwayne Godfrey (Dwayne) is the natural son of Latonia Godfrey and Kirt Godfrey. He was born a live infant on November 22, 1991, at Mount Sinai Medical Center (Mount Sinai), a hospital located in Miami Beach, Dade County, Florida, and his birth weight was in excess of 2,500 grams. Dwayne died November 24, 1991, while still a resident at Mount Sinai. The physician providing obstetrical services during the birth of Dwayne was Pedro Brasac, M.D., who was, at all time material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Dwayne's birth At or about 12:37 p.m., November 21, 1991, Latonia Godfrey (Mrs. Godfrey) was admitted to Mount Sinai. At the time, Ms. Godfrey was at term, with contractions having commenced 2-3 hours prior to admission, and her prenatal course had been uncomplicated. Following admission, a vaginal exam revealed dilation of the cervix at 2 centimeters, effacement at 80 percent, and the fetus at station -1. Fetal heart monitoring revealed good beat and beat variability of the fetal heart tone and mild contractions at 3-4 minutes. Mrs. Godfrey progressed slowly through labor during the day, with mild contractions at 3 minutes and good beat and beat variability of the fetal heart tone noted; and at 5:09 p.m., Dr. Brasac artificially ruptured the membrane. At the time, the cervix was noted to be at 4 centimeters, effacement at 90 percent, and the fetus at station -1. When the membrane was ruptured, light to moderate meconium amniotic fluid was observed, but fetal heart tone continued to be appropriate. From 5:09 p.m. to 7:27 p.m., when Dr. Brasac again conducted a vaginal exam, Mrs. Godfrey failed to progress through labor. The fetal heart tone was, however, observed in the 140- 150 range, with good beat to beat variability, and contractions continued at 3-4 minutes, at moderate to strong. At 8:30 p.m. the fetal heart tone was 145-160 with short term variability; at 9:00 p.m. the fetal heart tone was 150-170 with accelerations; and at 9:05 p.m. the fetal heart tone was noted to fall to 90 beats per minute for 20 seconds, with a quick recovery. At 9:07 p.m., a vaginal exam by Dr. Brasac revealed the cervix at 4 centimeters, effacement at crown, and the fetus still at station -1. Fetal heart tone was noted to fall to 70 beats per minute for 50 seconds, but with scalp stimulation the fetal heart tone returned to 150 beats per minute. At 9:20 p.m., Dr. Brasac conducted another vaginal exam and noted the cervix at 5 centimeters, effacement at crown, and the fetus still at station -1. Deep variable decelerations in fetal heart tone to 90 beats per minute, lasting 20 seconds, were noted at 9:30 p.m., and augmentation of labor with pitocin was commenced at 9:45 p.m. From 9:45 p.m. to 10:55 p.m., the fetal heart tone was noted at 150-170 beats per minute with variable decelerations, contractions at 2-3 minutes, and a variable deceleration to 90 beats per minute with recovery. Dr. Brasac performed a further vaginal exam at 10:55 p.m., observed the cervix at 5 centimeters, effacement at crown, and the fetus still at station -1. At that time, Dr. Brasac ordered an increase in pitocin. 11. From 11:00 p.m. to 12:30 a.m., November 22, 1991, pitocin was slowly increased; however, at 12:48 a.m., when Dr. Brasac conducted another vaginal exam, Mrs. Godfrey had failed to progress, pitocin was discontinued, and Mrs. Godfrey was prepared for a caesarean section. During the period of 11:00 p.m. to 12:30 a.m., the fetal heart tone was noted in the 150-170 beat per minute range with, variously, long or short term beat to beat variability, and contractions at 2-3 minutes, with up to 40-45 second decelerations. At 1:02 a.m., November 22, 1991, Mrs. Godfrey was transferred from the labor and delivery room to an operating room for the caesarean section. The operative report reflects that Mrs. Godfrey was on the table at 1:05 a.m., anesthesia was started at 1:08 a.m., the incision was made at 1:22 a.m., and Dwayne was delivered at 1:32 a.m. Notably, prior to delivery, the infant's oropharynx and nose were suctioned, and when delivered Dwayne was again suctioned by Dr. Brasac. The labor and delivery summary reflects, as complications of labor, meconium below the cords, multiple variable decelerations, and maternal fever of 101 degrees Fahrenheit. Upon delivery, Dr. Brasac handed Dwayne to the pediatrician. At the time, Dwayne was hypotonic with poor respiratory effort, and a direct laryngoscopy was performed and approximately 1 cc of meconium was suctioned from below the cords. Notwithstanding, Dwayne continued to appear hypotonic with poor respiratory effort, requiring resuscitation by bag and mask for 5-7 minutes until his respiratory effort improved and he was transferred to the neonatal intensive care unit (NICU) for further management. In addition to the decreased tone and the presence of copious thick brown stained secretions (meconium) that were suctioned upon delivery, the nurse's newborn assessment and transitional care record reflects the following abnormalities at birth: absence of cry; pale/acrocyanosis color; absence of the rooting and sucking reflex and weak moro; and bilateral breath sounded "wet." Dwayne was admitted to the NICU at or about 1:50 a.m., and the first blood gases at 2:15 a.m. revealed that he was acidotic. Upon examination, the admission note reflects the following diagnosis and the unit's response: MECONIUM ASPIRATION SYNDROME WITH PERSISTENT FETAL CIRCULATION: INITIAL HISTORY OF MECONIUM SUCTION FROM BELOW THE CORDS ON ARRIVAL TO NICU WAS PLACED ON 50 [PERCENT] HOOD, WITH CONTINUED TACHYPNEA AND RESPIRATORY DISTRESS, SATURATIONS 80'S. INCREASED F102 TO 100 [PERCENT] BUT CONTINUE TO HAVE LOW SATURATIONS IN THE 70'S, WITH RESPIRATORY DISTRESS, THE BABY WAS INTUBATED, AND MECHANICAL VENTILATION WAS STARTED, UPON INTUBATION LARGE AMOUNT OF MECONIUM WAS AGAIN SUCTIONED FROM THE ENDOT- RACHEAL TUBE. PLACED INITIALLY ON SETTINGS IMV 80 PIP 20 AND 100 [PERCENT] THE FIRST ABG ON THESE SETTINGS SHOWED A PAO2 170 PCO2 38. CXRAY INITIALLY WITH LARGE DIFFUSE INFILTRATES ESSENTIALLY WITHOUT. CLINICAL THIS BABY HAS MAS [meconium aspiration syndrome] WITH PPHN [persistent pulmonary hypertension of the newborn] AS EVIDENCED BY ARTERIAL BLOOD GASES, AND CXRAY. . . . The persistent pulmonary hypertension of the newborn (PPHN), also referred to as persistent fetal circulation, from which Dwayne suffered was, more likely than not, occasioned by a hypoxic event occurring in utero, which precipitated elevated pressures and spasms in his lungs that closed off blood flow and reopened the passageway used for fetal circulation in utero, when lung oxygenation of the blood is unnecessary. To treat the PPHN from which Dwayne suffered, he was intubated and hyperventilated with oxygen to relax the pulmonary vessels of his lungs. At or about 5:00 p.m., November 23, 1991, when it appeared that the threat of PPHN had subsided, Dwayne was extubated and monitored. Unfortunately, at approximately 10:00 p.m., November 23, 1991, Dwayne turned cyanotic, his condition rapidly declined, and at or about 12:45 a.m., November 24, 1991, he expired. On November 25, 1991, an autopsy was performed on Dwayne's remains. That autopsy revealed that the patent ductus, the passageway which normally closes at birth to permit blood to flow through an infant's lungs, was open, confirming that the more likely cause of Dwayne's death was PPHN. Moreover, the gross morphologic and histopathologic findings were consistent with ischemic/hypoxic damage to the brain and, significantly, microscopic examination of the brain revealed "foci pyknotic hyperchromatic neurons within spongy neuropil in the cerebral cortex," which is evidence of damage to the brain occasioned by hypoxic insult occurring not less than 24 to 36 hours prior to death. The timing of Dwayne's insult Where, as here, the proof demonstrates that the infant suffered an injury to the brain caused by oxygen deprivation that led inevitably to his death (an obvious permanent and substantial mental and physical disability), 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. Consequently, absent persuasive proof that Dwayne's injury occurred during another time period, it must be concluded that he suffered a "birth-related neurological injury," as defined by law, and that the subject claim is compensable. Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the proof that is pertinent to the timing of Dwayne's injury, viewed globally, is not inconsistent with the conclusion drawn through application of the presumption. In this regard, it is observed, inter alia, that Mrs. Godfrey's prenatal course was uneventful; multiple variable decelerations were observed during labor; upon delivery Dwayne evidenced decreased tone, absence of cry, pale/acrocynosis color, absence of rooting and sucking reflex, and weak moro; upon delivery Dwayne required resuscitation and was acidotic; following delivery Dwayne was diagnosed as suffering PPHN, a product of hypoxic insult; and, the autopsy evidenced hypoxic damage to the brain which, through a finding of "foci pyknotic hyperchromatic neurons within spongy neuropil in the cerebral cortex," had to have occurred not less than 24 to 36 hours prior to death. Consequently, the proof is consistent with the presumption that Dwayne suffered a "birth- related neurological injury," as that term is defined by law.
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 notice was accorded the patient, as contemplated by Section 766.16, Florida Statutes (Supp. 1998), 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 (Supp. 1998), or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Juanita Ruiz and Miguel Angel Ruiz, are the natural parents and guardians of Michael A. Ruiz, a minor. Michael was born a live infant on August 14, 1998, at Jackson North Maternity Center, a hospital located in Dade County, Florida, and his birth weight exceeded 2,500 grams. Among the physicians providing obstetrical services at Michael's birth were Paul Norris, M.D., and Bel Barker, 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 (1997).2 When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain . . . of a live infant weighing at least 2,500 grams 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(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Michael suffered severe brain injury caused by oxygen deprivation 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. Therefore, the claim is compensable, and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When it has been resolved that a claim qualifies for coverage under the Plan, 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, 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 . . . . 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, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $190.65 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $10,580.33, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by 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, 29 Fla. L. Weekly D1982b (Fla. 1st DCA August 30, 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 (Supp. 1998), 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)][3] or when notice is not practicable. Pertinent to this case, Section 395.002(9)(b), Florida Statutes (Supp. 1998), defined "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. 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. (Petitioners' Exhibit 15, the NICA brochure, "This brochure is prepared in accordance with the mandate of § 766.316, Florida Statutes.") Findings related to the hospital and notice Pertinent to the hospital and the notice issue, the proof demonstrates that on Wednesday, July 22, 1998, Mrs. Ruiz, accompanied by her husband, presented for pre-registration at Jackson North Maternity Center, a hospital owned and operated by the Public Health Trust of Dade County at 14701 Northwest 27th Avenue, Opa Locka, Florida. At the time, consistent with established practice, Mrs. Ruiz was interviewed by a health service representative, and asked to provide pertinent personal and financial information for herself and her husband, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, so the service representative could complete a number of forms. At this time, the service representative also entered pertinent data regarding the Ruizes in the hospital computer data base. During the interview process, four or six forms were routinely completed, depending on whether the patient had commercial coverage, in which case four forms were completed, or whether the patient desired to apply for Medicaid, in which case six forms were completed. (Petitioners' Exhibit 6, pages 24-29 and Petitioners' Exhibit 5, pages 18 and 20). According to the proof, the first form was referred to as "Chronological notes," on which the service representative noted the need for any additional information or follow-up, and is not pertinent to this case. The second, third, and fourth forms that were completed in all cases, were the Application for Credit (on which the service representative noted the personal and financial information provided for the patient and her guarantor, here, Mr. Ruiz, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, and to which the patient and her guarantor attested by signing), the Indigent Income Attestation form (on which the service representative noted the gross family income for the past 12 months, as disclosed by the patient, and to which the patient and her guarantor attested by signing), and the Patient Funding Source form (on which the patient and her spouse attested that they had no other source of funding, other than that disclosed on the insurance benefits worksheet). (Petitioners' Exhibit 6, pages 24-29 and PHT's Exhibit 1, Exhibits 5-7). If the patient wished to apply for Medicaid, the service representative completed a Referral to Medicaid for the patient's signature (form five) and gave the patient an Application for Medicaid (form six) to complete and sign.4 Here, there is no compelling proof that Mrs. Ruiz chose to apply for Medicaid at pre-registration. Indeed, the only forms she signed at pre-registration, that are of record, are the Application for Credit, Indigent Attestation form, and Patient Funding Source form, and the only Medicaid Assistance Referral form of record was dated August 14, 1998, following Michael's birth. (PHT's Exhibit 1, Exhibits 5-7 and 9, and Petitioners' Exhibit 5, pages 18-22). Following completion of the interview process, Mrs. Ruiz was given three pamphlets, an Advance Directives brochure (a pamphlet that explained the living will), a NICA brochure, in Spanish, titled "Peace of Mind for an Unexpected Problem,"5 and a Patient's Bill of Rights brochure. According to the proof, the pamphlets were stapled together, with the Advance Directives brochure, being the longest, on the bottom, followed by the NICA brochure, which was a little smaller, and then the Patient's Bill of Rights brochure, which was the smallest, on top. As configured, all three brochures were visible when presented or held. Contemporaneously, Mrs. Ruiz was asked to sign a form acknowledging receipt of the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). That form provided, as follows: He recibido el folleto intitulado "Tranquilidad Mental" preparado por la Asociacion de Compensaciones por Lestones Neurologicas Relacionadas con el Nacimiento, del Estado de la Florida (Florida Birth- Related Neurological Injury Compensation Association). Firma del Paciente Fecha: Testigo: Mrs. Ruiz signed the form, acknowledging receipt of the NICA brochure, and the service representative witnessed and dated the form.6 Thereafter, the service representative provided Mrs. Ruiz with a gift package for expectant mothers, and the pre- registration process was completed. In all, pre-registration typically took 10 to 15 minutes to complete. Findings related to the participating physicians and notice Pertinent to the participating physicians and the notice issue, the proof demonstrates that the participating physicians in this case (Doctors Paul Norris and Bel Barker) held appointments as full-time members of the faculty at the University of Miami, with the rank of assistant professors of clinical obstetrics and gynecology, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. (Petitioners' Exhibits 13 and 14, and PHT's Exhibits 4 and 5). Among the terms of their agreement with the Public Health Trust, Doctors Norris and Barker, as attending physicians in the resident physician training program, agreed To supervise medical care to patients provided by resident physicians to regularly review the medical charges of these patients. To supervise the completion of medical records by residents physicians. Of note, at all times material hereto, Doctor Norris was the medical director of Jackson North Maternity Center and, together with Dr. Barker and others, an attending physician in the Public Health Trust's resident training program at the facility. Regarding Michael's birth, the proof demonstrates that at or about 4:00 p.m., August 13, 1998, with the fetus at term, Mrs. Ruiz presented to Jackson North Maternity Center, in labor. Following an initial assessment, Mrs. Ruiz was examined by Wayne McCreath, a physician in the resident training program, who noted the cervix at 2 centimeters dilation, effacement at 90 percent, and the fetus at -1 station, and regular uterine contractions every 3 minutes. Membranes were noted to have ruptured spontaneously at 3:00 a.m. Dr. McCreath's impression was intrauterine pregnancy, at 39+ weeks gestation, in labor, and he proposed to admit Mrs. Ruiz to labor and delivery. Dr. McCreath's assessment and proposal to admit Mrs. Ruiz was reviewed by Dr. Norris, the attending physician at the time, and approved. Dr. McCreath continued to provide medical care for Mrs. Ruiz, under the supervision of Dr. Norris, until the 7:00 p.m., shift change, when Dr. Barker assumed the duties of attending (supervising) physician, and some time thereafter George Butler, another physician in the resident training program, was noted to be providing medical care. Ultimately, at 6:01 a.m., August 14, 1998, Michael was delivered by cesarean section, due to arrest in descent and a nonreassuring fetal heart rate pattern. The operating report names Dr. Barker as the attending surgeon and Dr. Butler as a resident surgeon. Notably, with regard to the notice issue, neither Doctor Norris nor Doctor Barker provided NICA notice to Mrs. Ruiz at or following her admission of August 13, 1998, and the only notice she received was that provided by the hospital at pre- registration. Resolution of the notice issue, with regard to the hospital Petitioners do not dispute that the hospital provided Mrs. Ruiz with a copy of the NICA brochure at pre-registration or that she signed the form acknowledging receipt of the brochure. Rather, they contend, first, that Mrs. Ruiz did not receive notice because she never read the documents she signed or the NICA brochure, and that her failure to read the documents or NICA brochure was reasonable or excusable given that, in their opinion, the procedure the hospital employed to secure her signature and deliver the brochure was not adequate to alert her to their significance. Second, Petitioners contend that neither the acknowledgment form nor the brochure was sufficient, for reasons hereafter addressed, to satisfy the hospital's notice obligation under the Plan. To support their first contention, Petitioners offered the testimony of Mrs. Ruiz who, to support Petitioners' contention that her failure to read the documents she signed and the NICA brochure she received was reasonable, observed that the service representative (Machele Lockhart Wadley) simply flipped the bottom up of each page she wanted Mrs. Ruiz to sign, never gave Mrs. Ruiz time to read before signing, never gave Mrs. Ruiz the documents to read before signing or told her to read before signing, and never told Mrs. Ruiz the documents were of any legal significance. Moreover, as for the NICA brochure, Mrs. Ruiz observed that, at the time, she was of the opinion it was simply another baby advertisement, and of no significance. Considering the proof, Petitioners' first contention, and the testimony of Mrs. Ruiz that was offered to support it, must be rejected for a number of reasons. First, given the routine nature of pre-registration and the passage of time since it occurred, it is unlikely that Mrs. Ruiz would have any specific recollection of the events that transpired at the time. Moreover, given the limited number of forms Mrs. Ruiz signed during the interview process, discussed supra, and the fact that her husband also signed as guarantor or spouse, it is also unlikely that the process was hurried or that Mrs. Ruiz was seriously deprived of an opportunity to read the forms or the NICA brochure had she chosen to do so. Finally, and most pertinent to the notice issue, Mrs. Ruiz acknowledged in her testimony that, while she did not read the acknowledgment form, she was specifically advised that by signing the form she was agreeing that she received the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). Under such circumstances, and considering that the brochure was also delivered with two other pamphlets of legal significance (the Advance Directives brochure and the Patient's Bill of Rights brochure), if Mrs. Ruiz failed to accord the NICA brochure significance, her act of doing so was not reasonable. Petitioners' second contention, regarding the adequacy of notice with regard to the hospital, was premised on their view that, as worded, neither the acknowledgment form nor the NICA brochure was adequate to satisfy the notice provisions of the Plan. As for this contention, Petitioners first posit that, since the NICA brochure stated only injuries that "have occurred in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital" (emphasis added) were covered, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan because Jackson North Maternity Center was not described as a hospital in the acknowledgment form, the NICA brochure, the facility signage, or otherwise. Petitioners also posit that, because neither the acknowledgment form nor the NICA brochure states that Jackson North Maternity Center has participating physicians on its staff, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan. Here, Petitioners' second contention must also be rejected. First, Petitioners have stipulated that Jackson North Maternity Center is a hospital, as that terms is used in the Plan, and there is no evidence of record that Mrs. Ruiz suffered any confusion over Jackson North Maternity Center's status as a hospital. Second, there is no requirement under the notice provisions of Section 766.316, Florida Statutes, for the hospital to advise patients that it has participating physicians on staff. Rather, such is presumed if notice is given, and the obligation to disclose their participating status rests with the physician. Resolution of the notice issue, with regard to the participating physicians With regard to the participating physicians, it is undisputed that Mrs. Ruiz was never given notice by Doctors Norris and Barker that they were participating physicians in the Plan, and that the only NICA notice she received was that provided by the hospital at pre-registration, which failed to identify any physician associated with the hospital, or reveal their status as participating physicians.7 Nevertheless, it was the position of Intervenors that the acknowledgment form signed by Mrs. Ruiz at pre-registration, and delivery of the NICA brochure, satisfied the notice provisions of the Plan for the hospital, as well as the participating physicians. Alternatively, the Intervenors were of the view that the participating physicians were not required to give notice, since Mrs. Ruiz presented to the hospital on August 13, 1998, with an "emergency medical condition," as defined by Section 395.002(a)(b), Florida Statutes, or the giving of notice was "not practicable." § 766.316, Fla. Stat. Given the proof, it must be resolved that Doctors Norris and Barker failed to comply with the notice provisions of the Plan. In so concluding, it is noticed that Intervenors' contention that the giving of notice by the hospital also satisfied the participating physicians' independent obligation to give notice must be rejected as lacking a rational basis in fact or, stated otherwise, any compelling proof that a patient, similarly situated as Mrs. Ruiz, would reasonably conclude, from the hospital's notice, that notice was also given on behalf of Doctors Norris and Barker. Notably, the acknowledgment form signed by Mrs. Ruiz at pre-registration did not reveal that it was also given on behalf of any physician associated with the hospital and did not reveal that any physician associated with the hospital was a participating physician in the Plan. Under such circumstances, the giving of notice by the hospital could not satisfy the participating physicians' independent obligation to provide notice.8 With regard to the Intervenors' contention that the giving of notice was not required or was not practicable, it is noted that, while the Legislature clearly expressed its intention in Section 766.316, Florida Statutes, that notice was not required when a patient presented with an "emergency medical condition," the Legislature did not absolve a health care provider from the obligation to give notice when the opportunity was previously available. Consequently, while Doctors Norris and Barker were not required to give notice when they assumed Mrs. Ruiz's care at the hospital, because there was "evidence of the onset and persistence of uterine contractions or rupture of the membranes," they nevertheless failed to comply with the notice provisions of the Plan because, although there was a reasonable opportunity for them to do so, they failed to give Mrs. Ruiz notice at pre-registration.9 See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997); Board of Regents of the State of Florida v. Athey, 694 So. 2d 46 (Fla. 1st DCA 1997); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188 (Fla. 1st DCA 2002); Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995).
The Issue The issues in this case are: (1) For the purposes of determining compensability, whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital; and (2) 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)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact While living in Puerto Rico, Ms. Rivera became pregnant. She had some prenatal care in Puerto Rico prior to moving to Florida in approximately August 2009. She had no prenatal care after coming to Florida until she presented at Osceola on October 21, 2009. In 2009, Osceola contracted with OB Hospitalists Group, LLC (OB Hospitalists), for hospital-based physicians for the provision and management of health care for Osceola's unassigned and emergent obstetrics and gynecology patients. The physicians provided by OB Hospitalists rotated so that a physician from OB Hospitalists was at Osceola at all times. Obstetric patients who did not have an obstetrician and presented to Osceola for obstetrical care would be seen by one of the physicians from OB Hospitalists. Although an obstetrical patient may see one physician from OB Hospitalists during a visit to the emergency room, the patient may see another physician from OB Hospitalists on another visit. The contract between OB Hospitalists and Osceola provided that OB Hospitalists and its representatives were providing services pursuant to the contract as independent contractors and not as "employees, agents, partners of, or joint ventures with" the hospital. The contract also provided that OB Hospitalists would provided medical malpractice coverage for the physicians it provided to Osceola. OB Hospitalists contracted with physicians to provide the services required under the agreement between Osceola and OB Hospitalists. Among the physicians who contracted with OB Hospitalists to provide services to Osceola were Dr. Maki and Dr. Ojeda. OB Hospitalists required its physicians to participate in the NICA Plan and paid their annual assessments for participation in the NICA Plan. In October and November 2009, Dr. Maki provided hospital-based physician services at Osceola pursuant to the contract between Osceola and OB Hospitalists. During this time, he was a participating physician in the NICA Plan, and his assessment was paid by OB Hospitalists. He was a physician licensed in Florida and was practicing obstetrics on a full-time basis. Osceola is a licensed hospital in Florida as evidenced by its license numbers listed on the Hospital Assessment and Record and Admittance form, Joint Exhibit 31, J0925. Osceola paid its 2009 assessment for the NICA Plan. Ms. Rivera, whose primary language is Spanish, presented at the Osceola emergency room on October 21, 2009, complaining of abdominal cramping. She was accompanied by her mother, Jeanette Rivera. A security guard, who spoke Spanish, translated Ms. Rivera's communications to the hospital secretary on duty. Ms. Rivera filled out a sign-in sheet for emergency services upon arrival at the hospital. The form requested that she state her name, address, social security number, telephone number, date of birth, and reason for the visit. Ms. Rivera wrote her name and address on the form. The security guard placed Ms. Rivera in a wheelchair and wheeled her to the nurses' station, where he left her. The triage nurse note on the sign-in sheet indicated that Ms. Rivera had no known allergies and had been taking prenatal vitamins. Ms. Rivera was seen by Dr. Maki on her visit on October 21, 2009, but he did not admit her to the hospital. She was discharged with nurse's instructions, which were in Spanish. Sari Falcon was an out-patient registrar employed by Osceola who was on duty on October 21, 2009, and registered Ms. Rivera. As an out-patient registrar, it was Ms. Falcon's responsibility to collect demographic information, to get the patients to sign the condition of admission form, to verify insurance, and to schedule, if necessary. Ms. Falcon's family is from Puerto Rico, and she is fluent in Spanish, which is her first language. Although Ms. Falcon does specifically remember registering Ms. Rivera, Ms. Falcon has certain practices to which she adheres during the registration process. One of her practices is to converse in Spanish with patients who speak only Spanish. If the patient is an obstetric patient whose pregnancy is over 20 weeks, Ms. Falcon takes the patient to the labor and delivery department to complete the registration process. Ms. Falcon's initial registration of an obstetrical patient occurs during one interaction/transaction, and all pages are reviewed, signed, and witnessed by her during that single transaction. One of her duties is to prepare a registration form or face sheet which contains demographic and other information about the patient. She verifies the information on the registration form with the patient. The registration form for Ms. Rivera indicated that Ms. Rivera was unemployed, that her insurance was in the form of Medicaid, her last menstrual cycle was February 9, 2009, and that she did not have a primary or family physician. The form shows that the person registering Ms. Rivera is Ms. Falcon. On October 21, 2009, Ms. Rivera signed the Conditions of Admission and Consent for Medical Treatment form, which Ms. Falcon presented to Ms. Rivera. Ms. Rivera also initialed a part of the form, indicating that she was given the opportunity to read and ask questions about the information on the form and that she either had no questions or her questions had been answered. Ms. Rivera also initialed the form indicating that she did not have an executed Advance Directive and did not desire to execute one. By her initials, Ms. Rivera also acknowledged that she had received a copy of the hospital's Notice of Privacy Practices. Ms. Falcon signed the Conditions of Admission and Consent for Medical Treatment, indicating that she had witnessed Ms. Rivera signing the form. When Ms. Falcon presents the consent form to a patient, she goes over the information on the form with the patient prior to the patient signing the form. If the patient speaks only Spanish, Ms. Falcon goes over the material in Spanish. She explains the part of the form, which requires the patient to indicate by initialing the appropriate box, whether the patient has an Advance Directive, does not have an Advance Directive and would like to get information on Advance Directives, or does not have an Advance Directive and does not wish to execute one. Another of Ms. Falcon's responsibilities is to give the obstetric patients she registers a copy of the brochure prepared by the Association (NICA brochure). If the patient speaks only Spanish, Ms. Falcon would provide a copy of the NICA brochure which is written in Spanish. Ms. Falcon explains to the patient what the NICA brochure is. Ms. Falcon has the patient sign an acknowledgment form in Ms. Falcon's presence, showing the patient received the NICA brochure. Ms. Rivera executed an acknowledgment form dated October 21, 2009. The form, which is written in English, states: I acknowledge that I have received the Florida Birth Related Neurological Injury Compensation Plan brochure. I acknowledge and understand that I may contact the Florida Birth Related Neurological Compensation Association about the details of the plan at 1-800-398-2129. Ms. Rivera printed her name on the line which had "Print Name" underneath it and signed her name on "Signature" line underneath it. Dr. Maki does not speak English. He did not give Ms. Rivera a NICA brochure on October 21, 2009, and did not advise Ms. Rivera that he was a participating physician in the NICA Plan. Additionally, Ms. Rivera was not advised on October 21, 2009, that any of the obstetric physicians which OB Hospitalists provided to Osceola were participating physicians in the NICA Plan. Ms. Rivera's testimony concerning her October 21, 2009, visit to Osceola is not credible. There are many inconsistencies in Ms. Rivera's testimony, and some of Ms. Rivera's testimony is contradicted by her own mother, who was present at all times during the October 21, 2009, visit. Ms. Rivera stated that the only person who spoke Spanish to her at the hospital, aside from her mother, was the security guard. She also testified that she did not speak, read, or understand English on October 21, 2009. However, she contradicted herself when she testified that she knew what "name" and "address" meant in English because she learned that in school. Ms. Rivera also said that she was able to understand the words "print name" and "signature" because she had signed forms written in English in Puerto Rico with similar requirements. In her deposition, Ms. Rivera's mother testified that a female nurse spoke to them in Spanish after Ms. Rivera was told that she would be discharged and that another nurse came in with some documents for Ms. Rivera to sign. In her deposition, Ms. Rivera testified that the doctor gave her the Conditions of Admission and Consent to Treat form for her to sign, showed her where to initial the appropriate boxes, and said, "Sign and this is to have your baby." At the final hearing, Ms. Rivera changed her testimony and testified that Ms. Falcon gave her the form and told her where to sign and initial. At the final hearing, Ms. Rivera testified that on October 21, 2009, Dr. Maki gave her the acknowledgement form to sign indicating that she had received the NICA brochure and told her where to print her name and where to sign her name. Ms. Rivera's mother testified that Ms. Rivera did not sign any documents in the presence of the doctor and that the doctor only examined Ms. Rivera. In her deposition, Ms. Rivera denied receiving discharge instructions in Spanish and denied signing the discharge instructions. At the final hearing, Ms. Rivera acknowledged that she received the discharge instructions at her October 21, 2009, visit and that she signed the discharge documents. An interpreter was present at the depositions of both Ms. Rivera and her mother and translated from English to Spanish and from Spanish to English for their benefit. An interpreter was also present at the final hearing and translated from English to Spanish and from Spanish to English for their testimonies. Much of the information that is contained on the Registration Form, Joint Exhibit 1, J0003, would require that it be communicated to someone at the hospital. Information such as Ms. Rivera's mother's name and address, the employment status of Ms. Rivera, the date of Ms. Rivera's last menstrual period, and the lack of a primary care or family physician could only have come from Ms. Rivera or her mother, who speaks only Spanish. This information was not contained on the sign-in sheet that Ms. Rivera filled out with the help of the security guard. There is also information that is contained on the OB Triage form that had to have been communicated by Ms. Rivera to the staff at the hospital. Such information includes whether Ms. Rivera had certain allergies, the time of the day that Ms. Rivera's cramping began, pain of three on the pain scale, use of prenatal vitamins, and her level of education. The OB Triage form also stated that Ms. Rivera's primary language was Spanish and that an interpreter would be needed. There is no reason for the triage nurse to make up this information. Ms. Falcon always follows the procedure discussed above when registering obstetric patients, which is the same procedure outlined in Osceola's printed policies. There is no dispute that she speaks fluent Spanish, and there would be no logical reason that she would not speak Spanish to a patient who speaks only Spanish, particularly in a hospital with a 90 percent population of Spanish-speaking patients. Additionally, Ms. Falcon signed the Conditions of Admissions and Consent to Treatment form, as a witness to Ms. Rivera's signature. Ms. Rivera signed the form acknowledging that she received the NICA brochure. The greater weight of the evidence establishes that Ms. Rivera did receive a NICA brochure from Ms. Falcon on October 21, 2009; Ms. Falcon explained in Spanish to Ms. Rivera about the NICA brochure; and Ms. Falcon had Ms. Rivera sign a form acknowledging her receipt of the NICA brochure. On November 4, 2009, Ms. Rivera again presented to the Osceola emergency room at 9:40 a.m., complaining of abdominal cramps "all night long" and leakage of clear vaginal fluid since 9:00 a.m. The OB Triage note stated that Ms. Rivera was having moderate contractions every two to three minutes with a duration of 30 to 50 seconds. Dr. Maki admitted her to the hospital at 2:40 p.m. At 6:06 p.m., Dr. Maki artificially ruptured Ms. Rivera's membranes. Dr. Maki did not advise Ms. Rivera on November 4, 2009, that he was a participating physician in the NICA Plan and did not provide Ms. Rivera with a NICA brochure. After Dr. Maki's shift ended, Dr. Ojeda took over the care of Ms. Rivera. Dr. Ojeda, a licensed physician in Florida, was also an independent contractor with OB Hospitalists. On November 4, 2009, he was a participating physician in the NICA Plan and was practicing obstetrics on a full-time basis. His NICA assessment for 2009 was paid by OB Hospitalists. Dr. Ojeda arrived at Osceola on November 4, 2009, at 7:15 p.m., and first came in contact with Ms. Rivera at 7:26 p.m. At that time Ms. Rivera's membranes had been ruptured, her contractions were coming every one to two minutes, and the duration of the contractions was 60 seconds. Dr. Ojeda did a vaginal examination and reviewed the fetal heart rate tracings. According to Ms. Rivera's mother, when Dr. Ojeda first saw Ms. Rivera, the baby's hair was visible in the birth canal. Petitioner's expert, Berto Lopez, M.D., was of the opinion that at the time that Dr. Ojeda first saw Ms. Rivera, that it was not an appropriate time to transfer Ms. Rivera to another hospital and a new obstetrician. Dr. Ojeda speaks Spanish. When he first met Ms. Rivera, he advised her that he was a participating physician in the NICA plan, and gave her a NICA brochure in Spanish. He regularly keeps NICA brochures with him when he is on duty. Dr. Ojeda noted in the physician's progress notes that he informed Ms. Rivera at 7:40 p.m., that he was an active member of the NICA Plan. When Ms. Rivera came to Osceola on November 4, 2009, a fetal monitor was attached to her to monitor the heart rate of the baby. A normal fetal heart rate is between 120 and 160 beats per minute. Kevin's baseline fetal heart rate was 150 beats per minute. A little after 10:00 a.m., the fetal heart strip registered a variable deceleration of Kevin's heart rate that went down to 90 beats per minute. At approximately 2:14 p.m., the heart decelerated to about 75 beats per minute, which was followed by another deceleration to about 60 beats per minute at 2:19 p.m. From approximately 2:20 p.m., until 8:06 p.m., Kevin experienced small fetal heart rate decelerations, which evidenced an overall poor fetal heart rate variability. At approximately 8:06 p.m., Kevin's heart rate decelerated to about 60 beats per minute and then returned quickly to baseline. Decelerations continued, and at approximately 8:44 p.m., the variable fetal heart rate decelerations became severe and consistent. At this point, Kevin suffered oxygen deprivation. At 9:27 p.m., Dr. Ojeda delivered Kevin. He weighed 3,290 grams. At the time of birth, Kevin had poor muscle tone, no cry, and no respiratory effort and required three minutes of positive pressure ventilation with bag and mask. His Apgar scores at one, five, and ten minutes were two, five, and seven, respectively. At birth the umbilical cord ph was 7.05, which demonstrated that Kevin had acidosis at time of delivery. Acidosis is a sign of oxygen deprivation. After delivery, Kevin was taken to the nursery, at which time the post-delivery resuscitation had ended. His color was pale. Dr. Medina was notified of the delivery and status of Kevin. Dr. Medina ordered laboratory work to be done. About an hour after delivery, blood was drawn. Kevin had a platelet count of 117,000, which is low. Kevin was bathed while in the nursery. Around midnight of November 5, 2009, attempts were made to feed Kevin, and he did not tolerate feeding. At this time, the nurse noted that Kevin had odd movements, his left arm was straight, and his hand was in a tight fist. He had a facial grimace with his mouth slanting to the right side. At 12:23 a.m., the nurse noted that Kevin continued to have odd movements to the right side with arm straightening and fist clenched. His head was turned to the right side. He had a facial grimace with a droop to the right side, and his eyes were turned upward to the right side. His oxygen saturation was down to 82 percent. Dr. Medina, who was notified of Kevin's condition, ordered a consult. No evidence was presented to establish that Dr. Medina or J. Rapha Medical, P.A., provided obstetric services to Ms. Rivera. It was not established that Dr. Medina was a participating physician in the NICA Plan or that J. Rapha Medical, P.A., participated in the NICA Plan. No evidence was presented that either Dr. Medina or J. Rapha Medical, P.A., gave notice they participated in the NICA Plan. Dr. Pera, a neonatologist, was called on consult. Neither Dr. Pera nor Pediatrix rendered any obstetric services to Ms. Rivera. The evidence did not establish that Dr. Pera or Pediatrix participated in the NICA Plan or that they gave notice to Ms. Rivera that they participated in the NICA Plan. At 12:35 p.m., Kevin was admitted to the neonatal intensive care unit, pursuant to orders from Dr. Pera. Kevin moved with both arms straightened and fist clenched. His eyes turned upward to the right side, and his mouth drooped to the right side. These symptoms are indicative of a seizure. His oxygen saturation dropped to the mid 70's. Orders were given for Phenobarbital, which was administered at 2:50 a.m. Kevin was transferred to the Winnie Palmer Hospital for Women and Babies (Winnie Palmer) at 6:45 a.m. Diagnostic studies were done at Winnie Palmer, which showed that Kevin had suffered from oxygen deprivation. The EEG was abnormal; MRI's showed multiple intracranial hemorrhages and a progression to diffuse cystic encephalomalacia; and CAT scans showed intracranial hemorrhage with enlarged ventricles and cystic encephalomalacia. Petitioner retained Robert Cullen, Jr., M.D. (Dr. Cullen), as an expert witness, and Respondent retained Dr. Donald Willis, M.D. (Dr. Willis), and Raymond Fernandez, M.D. (Dr. Fernandez), as expert witnesses. All doctors agree that Kevin sustained a brain injury during labor and delivery due to oxygen deprivation. Dr. Cullen believes that the brain injury, which occurred during labor and delivery, was a significant injury and that Kevin sustained a separate significant brain injury around midnight to 12:30 a.m., on November 5, 2009. He is of the opinion that Kevin's impairment is a result of the combination of the two injuries, and he cannot apportion the impairment between the two injuries. Dr. Cullen bases his opinion that a second injury occurred because Kevin had stabilized by the time that he was placed in the nursery and the seizure activity started over two hours after oxygen deprivation was sustained during labor and delivery. However, Dr. Cullen concedes that an infant may not always show symptoms of a permanent and substantial impairment within three hours of birth. Dr. Fernandez, Respondent's expert pediatric neurologist, opined that Kevin suffered brain injury during labor and delivery and that a brief period of stability after resuscitation is not unusual. He stated: [I]t's not uncommon at all for a baby to then stabilize for a period of time even after sustaining severe injury. There's sort of a period of time when people look pretty good after brain injury; that doesn't last too long. It might last minutes to hours, two or three or four hours, and then decline begins to occur. There are progressive changes that take place that mount gradually and eventually instability recurs, so that period of relative stability or stability immediately after initial resuscitation is not unusual. Dr. Fernandez's testimony is credited. Dr. Willis is of the opinion that the seizure episode that began around midnight to 12:30 a.m., on November 5, 2009, was a manifestation of the brain injury that was sustained during labor and delivery and that the seizure episode was not a separate injury from the oxygen deprivation which occurred during labor and delivery. His opinion is based on the severe and consistent variable heart rate decelerations that Kevin experienced intrapartum; the Apgar scores after birth; the poor respiratory effort after birth requiring positive pressure ventilation with a mask and bag; the low platelet count of 117,000 after delivery; and the low ph of 7.05 of the umbilical cord, indicating acidosis at the time of delivery. The testimony of Dr. Willis is credited. The greater weight of the evidence establishes that Kevin sustained an injury to his brain during labor and delivery due to oxygen deprivation and the seizures and brain hemorrhage after birth were a manifestation or continuation of the early injury and not a separate brain injury. The brain injury sustained during labor and delivery resulted in substantial and permanent mental and physical impairment to Kevin. Dr. Fernandez, was the expert retained by Respondent to opine on Kevin's impairments. Dr. Fernandez opined that Kevin has mental and physical impairments, which are both substantial and permanent. He described Kevin's condition at the time Kevin was examined by Dr. Fernandez on January 18, 2012, as follows: He's virtually non-interactive, responds very little to sound, but otherwise does not interact. He does not speak. I don't think that he has any understanding of language. He has very poor motor control. His head circumference, his brain is very small and there is cystic change within his brain and that's highly predictive of permanent impairment.
