The Issue At issue in the proceeding is whether James Russell, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Lisa Russell and William Russell, III, are the parents and natural guardians of James Russell (James), a minor. James was born a live infant on February 12, 1997, at Columbia Memorial Hospital, a hospital located in Jacksonville, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of James was Brent Seibel, 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(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant 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 post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, James' mental presentation is dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address James' physical and mental status, the opinions of Michael Duchowny, M.D., a pediatric neurologist were offered. (Respondent's Exhibit 1). It was the uncontroverted opinion of Dr. Duchowny that, while James suffers a permanent and substantial physical impairment, he does not suffer a permanent and substantial mental impairment. Consequently, it must be resolved that the proof failed to demonstrate that James was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
The Issue Whether birth-related neurological injuries which result in death during the neonatal period2 are covered by the Florida Birth-Related Neurological Injury Compensation Plan (Plan) and, if so, whether Nicholas Erwin Schur, a deceased minor, otherwise qualifies for coverage under the Plan. Whether the notice requirements of the Plan were satisfied. Whether the Division of Administrative Hearings has the exclusive jurisdiction to resolve or, alternatively, must preliminarily resolve, whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan coverage and pursue such a civil suit. What effect, if any, the claimants' settlement with the birthing hospital has on the availability of benefits under the Plan. Whether the participating physician's corporate employers have standing to participate in this proceeding.
Findings Of Fact Fundamental findings Petitioners, Nicholas J. Schur and Lisa Schur, are the parents and natural guardians of Nicholas Erwin Schur (Nicholas), a deceased minor, and co-personal representatives of their deceased son's estate. Nicholas was born September 20, 1998, at Baptist Medical Center of the Beaches, Inc. (Baptist Medical Center), a hospital located in Jacksonville Beach, Duval County, Florida, and his birth weight exceeded 2,500 grams. Nicholas died on September 24, 1998, during the neonatal period at Baptist Medical Center.4 The physician providing obstetrical services during Nicholas' birth was Marijane Q. Boyd, 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(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded, and the parties have stipulated, that Nicholas suffered a "birth-related neurological injury," as defined by the Plan. Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA is of the view that, under the provisions of the Plan, the claim is compensable. NICA's conclusion is grossly consistent with the proof and is, therefore, approved.5 Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the participating physician who delivered obstetrical services at birth (Dr. Marijane Boyd) failed to comply with the notice provisions of the Plan. As for Baptist Medical Center, the parties have stipulated that it provided timely pre-delivery notice as envisioned by the Plan. Consequently, it is only necessary to resolve whether, as alleged by the health care providers, the notice provisions of the Plan were satisfied by or on behalf of Dr. Boyd. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000), and University of Miami v. M.A., 26 Fla. L. Weekly D1473a (Fla. 3d DCA June 13, 2001). Pertinent to the notice issue, the proof demonstrates that on or about January 27, 1998, Mrs. Schur sought prenatal care from her existing provider, Cleveland W. Randolph, Jr., M.D., a physician who, together with Samuel A. Christian, M.D., maintained an office for the practice of obstetrics and gynecology (OB/GYN) known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division I, at 1375 Roberts Drive, Suite 205, Jacksonville Beach, Florida. At the time, Drs. Randolph and Christian, like approximately 40 other obstetricians practicing in the Jacksonville area, were employees/shareholders of North Florida Obstetrical & Gynecological Associates, P.A. Notably, all obstetricians employed by North Florida Obstetrical & Gynecological Associates, P.A., were "participating physicians" in the Plan. Consistent with that relationship, Mrs. Schur was offered and accepted a "Contract for Obstetrical Services" (on January 27, 1998) which identified North Florida Obstetrical & Gynecological Associates, P.A., as the entity through which Dr. Randolph would be providing obstetrical and post partum care. That agreement provided, inter alia, as follows: North Florida Obstetrical & Gynecological Associates, P.A., provides total obstetrical and post partum care. This includes a physical examination and prenatal care, delivery of the infant and post partum care. Prenatal care includes all office visits and routine lab evaluation related to the pregnancy. Post partum care includes care for problems relating to the pregnancy or delivery and routine examinations, following the delivery up to 12 weeks. North Florida Obstetrical & Gynecological Associates, P.A., agrees to provide availability of a licensed obstetrician on call 24 hours a day in case of emergency. The agreement further established a fee schedule for basic comprehensive obstetrical care, cesarean section, and other obstetrical services. On March 15, 1998, Dr. Randolph notified Mrs. Schur, as well as his other obstetrical patients, that he would no longer deliver babies, and that his "partner, Dr. Sam Christian," would provide that service. Thereafter, on March 23, 1998, Mrs. Schur had a prenatal visit with Dr. Christian (to decide whether she would accept him as her obstetrician) and decided not to continue her care with Dr. Christian (due to his increased patient load). Effective May 19, 1998, Mrs. Schur elected to transfer her obstetrical and post partum care to the offices of Drs. Rebecca Moorhead, Patricia Schroeder, and Marijane Q. Boyd, another small group practice affiliated with North Florida Obstetrical & Gynecological Associates, P.A. That office, known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, was located in a professional office building adjacent to the building occupied by Doctors Randolph and Christian. While the group practice of Drs. Moorhead, Schroeder, and Boyd was affiliated with North Florida Obstetrical & Gynecological Associates, P.A. (North Florida), and they held themselves out to the public as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, as discussed more fully infra, the principles structured their business relationship through two separate professional associations. Regarding those associations, the proof demonstrated that Doctors Moorhead and Schroeder were employees of North Florida and Dr. Boyd was an employee (the sole employee) of Beaches Obstetrical and Gynecological Practice, Inc. (Beaches OB/GYN).6 Under the terms of a Management Services Agreement, effective August 1, 1997, North Florida (Drs. Moorhead and Schroeder/Beaches-Division II) and Beaches OB/GYN (Dr. Boyd) outlined the manner in which the group practice of Drs. Moorhead, Schroeder, and Boyd would be conducted, as well as how expenses and revenues would be shared. As structured, North Florida agreed to provide billing, administrative and other support services for Beaches OB/GYN (Dr. Boyd) and Beaches OB/GYN agreed that Dr. Boyd would provide her professional services. As compensation for North Florida's services, Beaches OB/GYN agreed to pay what was essentially one-third of the direct operating expenses incurred by North Florida in the operation of the group practice. As for revenue sharing, the agreement contemplated that North Florida and Beaches OB/GYN would receive a share of professional fees received based on the actual professional services provided by North Florida physicians (Drs. Moorhead and Schroeder) and Beaches OB/GYN's provider (Dr. Boyd). While Drs. Moorhead, Schroeder, and Boyd elected to structure their group practice through two professional associations, they otherwise did business as, and held themselves out to the public as, North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II. Notably, the signage on the front door so identified their practice, followed by the names of Drs. Moorhead, Schroeder, and Boyd; and, all paperwork of note likewise identified their practice as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II. Indeed, Mrs. Schur was, at the time, unaware of any entity known as Beaches Obstetrical and Gynecological Practice, Inc.7 Finally, with regard to the manner in which the group practiced, the proof demonstrated that Drs. Moorhead, Schroeder, and Boyd, like many group practices, shared patients, with each patient (including Mrs. Schur) rotating her prenatal care through all three physicians, and shared calls, with each physician on call every third day and every third weekend. With such an arrangement, it was strictly a matter of chance which of the physicians (Drs. Moorhead, Schroeder, or Boyd), all of whom were participating physicians in the Plan, would deliver a patient's child. Regarding the notice issue, it is resolved that Mrs. Schur was provided timely notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., were participating physicians in the Plan, together with notice as to the limited no-fault alternative for birth-related neurological injuries provided by the Plan. Such conclusion is based on the more credible proof which demonstrates that on June 15, 1998, when Mrs. Schur presented to the offices of Drs. Moorhead, Schoder, and Boyd, that they had an established routine whereby on a patient's first office visit she would be provided the notice contemplated by Section 766.316, Florida Statutes. Here, consistent with that routine, the proof demonstrates that on such date, when she presented for her first office visit, Mrs. Schur was given a form titled NOTICE TO OBSTETRIC PATIENT, which provided: I have been furnished information by North Florida Obstetrics & Gynecology Associates, P.A. prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that North Florida Obstetrics & Gynecology Associates, P.A. is a participating practice 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), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. Dated this day of , 19 . Signature (NAME OF PATIENT) Social Security No.: Attest: (Nurse or Physician) Date: Rather than sign the form, Mrs. Schur wrote across it the words "received at Dr. Randolph's." At hearing, Mrs. Schur testified that, although she does not recall the incident, the best explanation she could offer for writing "received at Dr. Randolph's" instead of signing the form was that "someone would have had to tell me to do that . . . [since] I would not have known to write that on there." Such explanation is logical and credible; however, having accepted the explanation for why the entry was made, instead of signing the form, does not detract from the strong inference to be drawn from the entry. Indeed, having written the words "received at Dr. Randolph's" across the form is compelling evidence that, at the time, Mrs. Schur had a clear recollection that, during the period she was under the care of Dr. Randolph, she received notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., were participating physicians in the Plan, as well as a copy of the NICA brochure that described the NICA program.8 As further evidence that notice was given, it is observed that established routine at the offices of Drs. Moorhead, Schoder, and Boyd also mandated that when notice was given an item titled "NICA ", and contained within a checklist (titled Plans/Education) on a patient's prenatal record, receive a "?" in the space following the acronym NICA. Notably, at or about the same time Mrs. Schur wrote across the notice "received at Dr. Randolph's" the space following the acronym NICA was annotated to read "? c Dr. Randolph." Given Mrs. Schur's entry on the notice form ("received at Dr. Randolph's"), as well as the established routine, it is reasonable to conclude that such annotation was intended to reflect that Mrs. Schur had received NICA notice when she was a patient of Dr. Randolph.9 While the proof demonstrated that Mrs. Schur received notice, as contemplated by Section 766.316, Florida Statutes, that the physicians associated with North Florida Obstetrical & Gynecological Associates, Inc., were participants in the Plan, it likewise demonstrated that no separate notice was provided that Dr. Boyd, either individually or as an employee of Beaches Obstetrical & Gynecological Practice, Inc., was a participant in the Plan. However, for reasons discussed in the Conclusions of Law which follow, such failure was harmless. The settlement agreement with Baptist Medical Center On June 20, 2001, Nicholas J. Schur and Lisa S. Schur, individually and as Personal Representatives of the Estate of Nicholas Erwin Schur (Claimants) and Baptist Medical Center of the Beaches, Inc., formally resolved all claims or potential claims of the Claimants against Baptist Medical Center and North Florida Obstetrical & Gynecological Associates, P.A., including those matters relating to the pending civil action in the Circuit Court, Duval County, Florida, Case No. 00-01458-CA, Division CV- C; however, the Claimants reserved all claims they had against Marijane Q. Boyd and Beaches Obstetrical and Gynecological Practice, Inc. As consideration for that settlement, the Claimants received the sum of $87,500 and the release and discharge of all claims Baptist Medical Center had against the Claimants arising from the care provided to Nicholas or Mrs. Schur.
The Issue Whether Yandel Torres-Santiago, a minor, sustained a compensable injury under the Florida Birth-Related Neurological Injury Compensation Plan (Plan); and Whether appropriate pre-delivery notice was provided to the mother and obstetrical patient, Yolanda Santiago.
Findings Of Fact Stipulated and Threshold Matters Petitioners, Yolanda Santiago, and Wilfredo Torres, are the parents and natural guardians of Yandel Torres-Santiago, a minor.5/ Winnie Palmer Hospital for Women & Babies is a Florida- licensed hospital, participating in the NICA Plan, and all individual Intervenors (Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny A. Danna, M.D.; and Amanpreet S. Bhuller, M.D.) were at all times material participating physicians under the NICA plan. (TR-46-47). Yandel was born at Winnie Palmer Hospital for Women & Babies on July 19, 2008. (Stipulated among the parties in their respective pre-hearing statements). Yandel was delivered vaginally. (Stipulated among the parties in their respective pre-hearing statements). Obstetrical services were delivered by Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny Danna, M.D.; Amanpreet S. Bhuller, M.D.; and George Amyradakis, M.D., in the course of Ms. Santiago's labor and delivery.6/ All of the foregoing physicians were participants in the NICA Plan at all times material. The physician providing obstetrical services at birth was George Amyradakis, M.D., a hospital "resident," with Norman Lamberty, M.D., as the attending physician.7/ Yandel was the result of a single gestation, and his birth weight was 2,735 grams. (Stipulated among the parties, and see TR-15). Yandel's Apgars8/ at birth were 3/7. (Stipulated among the parties). Yandel suffered from neonatal alloimmune thrombocytopenia at birth. (Stipulated among the parties). Yandel is permanently and substantially mentally and physically impaired. (Stipulated among the parties). Yandel's medical condition and treatment is documented in the birth records of Winnie Palmer Hospital for Women & Babies. (Stipulated among the parties). Wilfredo Torres and Yolanda Santiago have been together and/or married for 25 years. They had three healthy sons prior to Yandel's conception. Yolanda Santiago suffered two miscarriages prior to Yandel's conception. Findings of fact as to compensability In July 2008, while pregnant with Yandel, Yolanda Santiago was 41 years old with diabetes mellitus and ulcerative colitis. Hypertension developed at 37 weeks' gestation. She was admitted to Winnie Palmer Hospital for Women & Babies on July 17, 2008, with pre-eclampsia.9/ Her blood pressure on admission was elevated to 152/100, and she was complaining of a headache. Magnesium sulfate was started for management of preeclampsia and labor was induced. On Ms. Santiago's admission to the hospital on July 17, 2008, Drs. Jeannie McWhorter and Stephanie Ladowski were attending obstetricians. On July 18, 2008, Dr. Martha Kuffski was the attending obstetrician. Yandel's baseline fetal heart rate (FHR) during labor was 130 to 140 beats per minute (BPM). Overall, there was reduced FHR variability during labor. Severe variable FHR decelerations with FHR below 60 BPM occurred prior to Yandel's delivery. On July 19, 2008, Ms. Santiago's membranes were artificially ruptured, and at 3:41 p.m., Yandel was delivered vaginally without forceps. The attending physician at Yandel's birth, Dr. Lamberty, and Ms. Santiago recognized each other in the delivery room at Winnie Palmer Hospital for Women & Babies. Dr. Lamberty described Yandel's delivery by a hospital resident as "completely uneventful." At birth, Yandel had visible petichiae. There also were pale bluish, non-blanching spots on his right axilla and over the left chest; slightly decreased tone; and bruising of the face and head, but his scalp was not torn and no physical abnormalities were noted. Petichaie are pinpoint red spots marking tiny hemorrhages under the skin. Some testifying physicians thought they were, more likely than not, evidence that a brain hemorrhage also could have occurred during labor and delivery. Others did not consider that an obvious connection, and felt that thrombocytopenia alone can cause a petechial rash. Yandel required only manual stimulation and minimal oxygen in the first minutes of life. He was quickly stabilized and breathing room air. Yandel's Apgar scores of "3" at one minute and "7" at five minutes do not indicate distress. Respiratory effort was "weak" at birth, but respiratory effort improved and was noted to be good at five minutes of age. Yandel's "7" Apgar score at five minutes indicated that Yandel was pink, had a good heart rate, good respiratory effort, and was breathing on his own. Yandel never required intubation or placement on a ventilator in the delivery room. Nonetheless, he was transferred to the transitional nursery, instead of being transferred to the new-born nursery, which provided a lesser level of care than the transitional nursery, or to the new-born intensive care unit (NICU), which provided a higher level of care than the transitional nursery. Yandel was transported to the transitional nursery in an open crib and breathing room air. There is no evidence of continued or continuous resuscitative efforts or of any need for resuscitative efforts after Yandel was stabilized in the delivery room and no evidence of any need for resuscitative efforts during his transfer to the transitional nursery. Yandel arrived at the transitional nursery breathing on his own and in presumably good condition, except for some bluing of the extremities, but his condition declined several hours later. According to NICA's witness, Dr. Donald C. Willis, a board-certified obstetrician with special competence in maternal-fetal medicine, the "immediate postdelivery resuscitative period" would have ended for Yandel with the five- minute Apgar recordation. All of the other physicians who testified on the subject considered the end of resuscitation in the immediate postdelivery period to have occurred when Yandel was stabilized. As might be expected, there was some disagreement as to what constituted stabilization. The four physicians deposed in this case for their expertise in determining condition and causation were the obstetrician, Dr. Willis; Dr. Michael Duchowny, a pediatric neurologist; Dr. Claudio Sandoval, a pediatrician and pediatric hematologist-oncologist; and Dr. Robert DiGeronimo, a neonatologist. Their respective testimonies as to what each believed happened after Yandel left the delivery room and regarding the etiology of Yandel's impairments differ in many respects, but all four physicians clearly and unequivocally agree that Yandel was born with a condition termed "alloimmune thrombocytopenia"; that alloimmune thrombocytopenia is an abnormal condition; and that Yandel's alloimmune thrombocytopenia existed in utero and at his birth. Yandel's fetal alloimmune thrombocytopenia existed in the uterus and constituted neonatal alloimmune thrombocytopenia in the newborn. All the testifying physicians agreed that alloimmune thrombocytopenia is not "genetic," in that it does not pass as a defect of the genes from parent(s) to child. All were willing to call the condition "congenital" or "hereditary," but several preferred the term, "acquired condition" as well. Nonetheless, it is clear that the condition is "acquired" by the infant before birth, and the only difference between fetal alloimmune thrombocytopenia and neonatal alloimmune thrombocytopenia is that the child has been born. It is, however, a condition that is treatable after birth. The Legislature has not defined the word, "congenital" within sections 766.301-766.316, nor indeed, anywhere within the current statutes. Dorland's Illustrated Medical Dictionary, page 1988 (28th ed. 1994), defines "congenital" as, "existing at, and usually before, birth; referring to conditions that are present at birth, regardless of their causation. Cf. hereditary." Apparently, there are other forms of thrombocytopenia which may develop in different ways. However, alloimmune thrombocytopenia is a condition acquired in the mother's uterus, due to incompatibility between the mother's blood platelet type and that of the baby. It occurs when the baby inherits the same platelet type as the father, whose platelet type is incompatible with that of the mother. The mother's blood crosses the placenta and attacks the baby's platelets as if the baby's platelets were foreign bodies. The mother's antibodies then proceed to destroy the platelets of the baby, resulting in thrombocytopenia (low platelet count). Alloimmune thrombocytopenia occurs in less than one in 1,000 births. For the first hour and 20 minutes after birth on July 19, 2008, Yandel was in the transitional nursery. He was somewhat bluish during this time, but breathing on his own. At approximately 5:00 p.m., an assessment (history and physical) was performed by a pediatrician who concluded that Yandel was stable. At that time, Yandel's eyes, lungs, heart, and abdomen were recorded as normal. His trunk, spine, and extremities were recorded as normal. His head and neck were normal. His anterior fontenels10/ were recorded as "soft and flat," and thus, normal. The fontenels permit a baby's head to pass through the birth canal with minimal "molding" of his head and permit the baby's brain to grow as his head and body grow and mature after birth. From the 5:00 p.m., assessment, it appears that no bulge was visible at that time as might have been expected with bleeding or swelling in Yandel's head. Yandel had normal grasp, normal sucking instinct and normal suck, and he could move all his extremities. His vital signs were recorded as "normal." He was fed 20 ml of formula and transferred to the newborn nursery. Between 4:05 and 7:30 p.m., of July 19, 2008, Yandel's heart rate decreased from 150 to 118. At four hours of life, (approximately 7:00 p.m., on July 19, 2008) Yandel had a brief episode of apnea (interruption in the ability to breathe). He desaturated (in this context, "lost oxygen" in his blood) to 69%. Thirty minutes thereafter, he had a 20-second desaturation episode to 44%, and was placed on supplemental oxygen. He experienced two more desaturation episodes lasting 40 and 45 seconds. At 10:00 p.m., on July 19, 2008, Yandel's blood platelet level was 41,000. The normal range is 150,000 to 350,000. His hemoglobin and hematocrit levels were also low at 13.3 and 39.8, respectively. At approximately 1:42 a.m., on July 20, 2008, Yandel was transferred to NICU, on a ventilator, but his fontenels were still open, soft and flat. He was awake and alert and with his reflexes intact, and stable, but he was recorded as having intermittent tremors. No bleeding was reported. At 3:10 a.m., on July 20, 2008, at approximately 12 hours of life, Yandel's platelet level was 19,000, with hemoglobin of 11.7 and hematocrit of 35.9. The foregoing measurements constitute a 50% drop in platelet count over a period of five hours and are consistent with loss of oxygen through a brain bleed. At 8:11 a.m., on July 20, 2008, a head ultrasound confirmed that Yandel had experienced a large intraventricular and intraparietal brain bleed with a midline shift. At 10:14 a.m., on July 20, 2008, an ultrasound encephalogram report stated that the examination was abnormal with large amounts of blood in the lateral third ventricle of Yandel's brain. At 5:27 p.m., on July 20, 2008, Dr. Olavarra noted Yandel's fontenels were full and tight, which meant something (in this case, blood) was filling up the brain and its ventricles. At 3:50 a.m., on July 21, 2008, Yandel received a transfusion of blood products which increased his platelet count to 235,000, but he had lost blood volume. At 8:54 a.m., on July 21, 2008, the extent of the brain bleed was confirmed by a CT scan of Yandel's head, which revealed blood in the lateral and third ventricles and the parietal lobes. On July 21, 2008, a pediatric hematologist diagnosed the brain bleed as resulting from alloimmune thrombocytopenia. The parties and their respective experts have different views both of when Yandel's brain bleed began and of at what point the bleed caused injury to his brain. Respondent NICA's and Intervenors' experts assert that the brain bleed began while Yandel was passing through the birth canal and occurred due to the "mechanical forces" or "shearing effect" of the contractions of a normal vaginal delivery, whereby the infant's soft head, followed by his body, passed through the mother's pelvis and vagina, resulting in a long- term, continuous bleed. Petitioners advocate for a finding that there was a spontaneous bleed at some point beyond the period of "labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." (The statutory period). They contend that the bleed began no sooner than four hours after birth; after Yandel had been stabilized; and after the immediate postdelivery resuscitative period had ended. They further suggest that the injury to Yandel's brain may have occurred even beyond the lapse of four hours. Obstetrician Dr. Donald C. Willis reviewed Yandel's and Ms. Santiago's medical records for Respondent NICA. He testified that, despite Yandel's improving Apgar scores within five minutes of birth at 3:41 p.m., on July 19, 2008; favorable newborn pediatric assessment at approximately 4:00 p.m.; and stabilized condition for nearly four hours on July 19, 2008, nonetheless, within reasonable medical certainty, significant brain hemorrhage had occurred to Yandel during labor and delivery because, with thrombocytopenia, the most common time for hemorrhage is at the time of delivery, when the baby's head has to mold into the birth canal. Dr. Willis also suggested that even the brief loss of oxygen during any normal uterine contraction could constitute sufficient loss of oxygen to produce the brain bleed discovered much later. Dr. Willis' testimony suggests that any baby suffering from fetal alloimmune thrombocytopenia will suffer a mechanical brain hemorrhage and subsequent oxygen deprivation through the normal birthing process, in which case, Yandel's situation would seem to represent a congenital condition not subject to compensation under the statute, but he also stated that labor and birth are simply the most common time for such babies to hemorrhage in the brain. There is no dispute that alloimmune thrombocytopenia, acquired by an infant in utero, makes that infant more susceptible to a brain bleed during birth than an infant without such acquired condition. However, all four physicians, including Dr. Willis, concede that not every baby with alloimmune thrombocytopenia suffers a brain bleed due to an uneventful vaginal delivery, or even suffers apneic episodes, as did Yandel. Dr. Claudio Sandoval is an eminent pediatric hematologist-oncologist. Although he deferred to either a neonatologist (such as Dr. DiGeronimo) or a pediatric neurologist (such as Dr. Duchowny) to determine whether or not Yandel had a bleed in his brain at the time of birth significant enough to have caused brain damage more than 12 hours later, Dr. Sandovol provided insight that there is a difference between some loss of oxygen versus mechanical injury to the brain via a brain bleed. Dr. Sandoval's opinion, in sum, was that the statutory period for compensability ended once the baby was stabilized in the delivery room. He placed the beginning of Yandel's brain bleed at some point between the complete blood count (CBC) reading of 41,000 platelets at approximately 10:00 p.m., on July 19, 2008, and the CBC reading of 19,000 platelets the next morning at about 3:00 a.m., on July 20, 2008. Dr. Sandoval's reasoning was that the injury had to have occurred at that point in time, because only at that point in time had the bleed reached "critical mass" sufficient to cause oxygen deprivation to the brain. He opined that although thrombocytopenic babies may be susceptible of bleeding, very few thrombocytopenic babies have a bleed into their brains as a result of the birthing process. He relied on the NICU admission assessment at 1:42 a.m., on July 20, 2008, that the child was stable with no evidence of active bleeding, and best-timed Yandel's injury caused by oxygen deprivation to when Yandel's fontenels began to bulge from the released blood. Dr. Michael Duchowny is a pediatric neurologist, selected by Respondent NICA. Like Dr. Sandoval, selected by Petitioners, Dr. Duchowny also concluded that the claim was not compensable because the injury occurred outside the statutory period. He assessed the birth record and observed an older Yandel via video. Dr. Duchowny could not make up his mind as to whether or not alloimmune thrombocytopenia was, or was not, congenital (see his deposition, pages 53, 54, and 71), but he stated that some type of insult of record, other than the birth itself, was necessary for him to reach a conclusion that the damage to Yandel's brain occurred during the birth. Dr. Duchowny found no such insult in the birth records, and concluded that Yandel suffered a spontaneous bleed occurring when Yandel's platelet count fell below 20,000. Although at one point, in a very long deposition, he was mistaken as to the point in time at which the platelet count fell below 20,000 (he believed the platelet count was continually dropping through the 3:10 a.m., platelet count at 12 hours of life until the baby was transfused at 7:45 p.m., on July 20, 2008) Dr. Duchowny ultimately timed Yandel's brain damage as beginning when the desaturations began to occur and the first apneic episodes were recorded. On the other hand, neonatologist Dr. DiGeronimo acknowledged that the mechanical forces of labor and birth can cause immediate brain damage in a baby with alloimmmune thrombocytopenia and opined that a brain capillary may have been torn by the shearing forces of labor and delivery (mechanical injury) and bled out. He also opined that apnea is not restricted to thrombocytopenic babies or to babies with brain bleeds. Apnea can occur for a wide range of reasons and with a wide range of manifestations and etiologies. Dr. DiGeronimo also considered it common for newborns who have sustained a brain injury at birth to not evidence any symptomatology of that bleed until hours later: Q: Why did it take four hours after birth for him to start having an apnea event as a result of his brain injury? A: [Dr. DiGeronimo] So apnea is just one sign of a brain injury, and there are babies that often have significant brain injury that don't have any apnea or don't present with apnea. Apnea can also occur for different reasons outside of brain injury. Babies -- some babies just have apnea. But it's -- it's very well known if you look at brain injury, babies go through kind of an acute injury and then they have a kind of a latent period where they recover and often aren't symptomatic, or improve transiently, and then subsequently as brain injury continues and the cells of the brain suffer ongoing injury and don't recover, their brain essentially goes into a secondary phase of injury, and this is typically when you see seizures and you may see apnea. And that can be a variable period, but it's very common in clinical practice where you'll have a baby that will have an insult and then will look better for a period of time, and then subsequently will get symptomatic with systems. [sic] Q: Is that the course that Yandel Torres-Santiago took after his birth? A: Yeah. I believe there was a component of that. I -- you know, I still think he was symptomatic at birth, he required resuscitation, but he did have a period where he appeared stable enough where they sent him to the transition nursery, but -- but then obviously later on and not too long a period developed apnea, and then later on clinical seizures as well, which is consistent with kind of the timing of a brain injury occurring during the labor and delivery process. The division of opinion of the several experts is troubling, particularly since the pediatric oncologist- hemotologist, Dr. Sandoval, deferred to either a neonatologist or a pediatric neurologist and those two specialists disagree on causation and timing of the insult to the brain. It is tempting to find that Dr. Duchowny's mistake as to when Yandel's platelet count first fell below 20,000 is cause to discount the remainder of his testimony, but it is more reasonable to say that his testimony, as a whole, could support a spontaneous brain hemorrhage at 12 hours of life as much as it could support a slow bleed beginning earlier, at around four hours of life, and does not support a finding that a mechanical injury occurred in the statutory period. The undersigned has thoroughly reviewed voluminous medical records and carefully assessed, compared, and weighed all the threshold assumptions of the various medical experts, with particular attention to those of Dr. Willis and Dr. DiGeronimo, whose medical disciplines (obstetrics and neonatology, respectively) cover the time period of labor, delivery and newborn care when the intracranial bleed and resulting damage are alleged to have occurred. According to Drs. Willis and DiGeronimo, alloimmune thrombocytopenia, without any activity by the obstetricians, accounted for an initial insult to Yandel's brain during labor or delivery. However, it is noteworthy that neither of these specialists was able to point to a specific objective incident during labor, delivery, or resuscitation in the delivery room when they alleged the "mechanical shearing" injury to Yandel's brain occurred. Also, neither expert had correlated any statistical probability that there had been a tear to the brain as described by Dr. DiGeronimo. In sum, their assessment was that not all alloimmune thrombocytopenic babies suffer an insult to their brains during labor and delivery, but most who do suffer such an insult suffer it in that time frame. While their testimony suggests that there may be an unquantified statistically higher occurrence of injury in such babies across the spectrum of such births, it is not objective evidence of an actual insult/injury to Yandel's brain within the statutory period. If anything, it tends to demonstrate the existence of a congenital abnormality without which the ultimate injury and impairment would not have occurred.11/ In contrast, the objective records show Yandel was an infant compromised by thrombocytopenia, a noncompensable congenital abnormality. He had an uneventful labor and delivery without external mechanical intervention by the obstetricians, such as forceps or vacuum extraction. There was no identifiable obstetrical incident, event, or apparent complication during labor, delivery, or the immediate postdelivery manual stimulation, which constituted his immediate postdelivery "resuscitation", which can be pointed-to as an insult to his brain or spinal cord. There was no observable injury to his head or scalp upon delivery. His petechial rash did not necessarily evidence injury to his brain. There was no bleeding from the mouth or nose which various opinions suggest might signal a brain bleed. Yandel achieved the wholly acceptable five minute Apgar score of "7," and he evidenced no symptoms of oxygen deprivation or other injury until after leaving the delivery room and the parameters of obstetrical care. Here, the statutory presumption in favor of compensability does not exist because Petitioners have not elected to claim it, and each of the parties has cited Bennett v. St. Vincent's Medical Center, supra, as instructive on how to resolve this case. However, the opinion in Bennett, while establishing that only Petitioners may claim the statutory presumption in favor of compensability and providing important dicta about the purpose and limitations of the NICA statute,12/ only addressed a situation in which the infant suffered a material and substantial mental and physical impairment as the result of oxygen deprivation in the statutory period, which is not the case here.13/ Bennett dealt with the more typical case in which NICA and the health care providers took the position that the infant suffered an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital," and petitioners/claimants therein took the position that it was not a case of "injury to the brain . . . caused by oxygen deprivation occurring in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital." However, in the instant case, NICA and Intervenors assert that Yandel sustained an "injury to the brain . . . caused by . . . mechanical injury, occurring in the course of labor [or] delivery, . . ." Herein, it has been shown that Yandel's brain injury, whenever it occurred, may have at least partially been the result of his congenital alloimmune thrombocytopenia, but it is unlikely that he suffered any substantial neurologic impairment until after he experienced a series of profound oxygen deprivations beginning no sooner than four hours after the statutory period had ended. Upon the evidence as a whole, Respondent and Intervenors have not demonstrated that, more likely than not, Yandel sustained a mechanical injury to his brain . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period. Findings of fact as to notice Apart from contesting compensability, Petitioners also sought the opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the statutory NICA notice provisions were not satisfied by the health care providers. See Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings, et al., 29 So. 3d 992 (Fla. 2010). ". . . [I]f either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA." Galen of Fla., Inc. v. Braniff, 696 So. 2d 308, 309, (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the hospital and the participating physicians complied with the notice provisions of the Plan. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). Accord O'Leary v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum."); University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 880 So. 2d 1253 (Fla. 1st DCA 2004). The statutory notice requirement is expressed at section 766.316, 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(8)(b) or when notice is not practicable. (emphasis added). Intervenors have not raised the defenses of "emergency" or "not practicable," and as the proponents of the notice issue they bear the burden of proving that notice was given. It is Petitioners' position, based upon Florida Birth- Related Neurological Injury Compensation Association v. Department of Administrative Hearings, that neither the hospital nor any of the physicians involved in labor, delivery, or resuscitation in the immediate postdelivery period in the hospital gave appropriate pre-delivery notice of participation in the NICA Plan. Intervenors contend otherwise. Winnie Palmer Outpatient Center OB/GYN Faculty Practice (hereafter Faculty Practice) is located at 89 West Copeland Drive, Orlando, Florida. It is one of a number of offices and hospitals in the Orlando, Florida, area operated by Orlando Health Inc. Winnie Palmer Hospital for Women & Babies is a teaching hospital located in the same downtown area and is part of the same medical network operated by Orlando Health, Inc. In 2007, Ms. Santiago began receiving prenatal care at the Faculty Practice for her sixth pregnancy (Yandel), because the Faculty Practice provided "high risk pregnancy" services and she had a problem with her cervix which had resulted in two prior miscarriages. Ms. Santiago continued to have regular periodic appointments at the Faculty Practice for the remainder of her pregnancy with Yandel. At all times material to Ms. Santiago's pregnancy with Yandel and Yandel's birth on July 19, 2008, the Faculty Practice employed 22-27 physicians. Ms. Santiago had no regularly- assigned physician at the Faculty Practice. At each visit there, she was seen by whichever Winnie Palmer Hospital for Women & Babies' resident and/or attending physician was available. As a group practice, all Faculty Practice physicians (attending obstetricians and residents) rotated delivery calls at the hospital, so it was possible any of the Faculty Group obstetricians or residents would participate in Yandel's delivery, and the parent company paid NICA participation fees for all of them. At all times material, Jeannie McWhorter, M.D., Martha Kuffski, M.D., and Armanpreet Bhuller, M.D., were employees of Orlando Health, Inc. who provided care and treatment to obstetrical patients at the Faculty Practice.14/ At all times material, Dr. Norman Lamberty and Dr. Penny A. Danna were employed by Physicians Associates, P.A., a private medical practice corporation not associated with the Faculty Practice. At all times material, Physicians Associates, P.A., had offices in location(s) different than the Faculty Practice, but the competent, credible evidence herein does not support a finding that either Dr. Lamberty or Dr. Danna ever saw Ms. Santiago in connection with their private P.A. for Ms. Santiago's pregnancy with Yandel. Regardless of Dr. Lamberty's speculation that he could have been present in the hospital and at Yandel's delivery as the "on call" physician on behalf of his private P.A., the totality of the competent credible evidence herein does not support a finding that Dr. Lamberty ever saw Ms. Santiago in connection with her pregnancy with Yandel prior to entering the delivery room on July 19, 2008, although he may have seen Ms. Santiago in connection with the private P.A. for one of her previous pregnancies. At all times material, Dr. Norman Lamberty and Dr. Penny A. Danna also were paid a stipend as part of the teaching staff of Winnie Palmer Hospital for Women & Babies, and in that capacity they assisted physicians in that teaching hospital's residency program with delivering babies. At all times material, they relied on the hospital to provide notice to patients and on the hospital or parent corporation to pay their NICA fees. Apparently, Dr. Danna did not see Ms. Santiago at all during her pregnancy with Yandel until after Ms. Santiago was admitted to the hospital on July 17, 2008, for labor and delivery, and there is merely an equipoise of testimony as to whether or not Dr. Lamberty saw Ms. Santiago during the two days she was in the hospital awaiting Yandel's birth.15/ It is, however, clear that Dr. Lamberty was an "on call" attending physician overseeing residents on behalf of the hospital on the date of Yandel's delivery. Dr. Lamberty is credible that he was the attending physician at Yandel's birth and that a hospital resident delivered Yandel in his presence. Dr. Lamberty did not give the resident's name, but the parties have agreed that the delivering hospital resident was George Amarydakis. (See Finding of Fact 6 and n.7). In 2007-2008, over the course of Yandel's gestation, Ms. Santiago made multiple prenatal visits to the Faculty Practice, and to Winnie Palmer Hospital for Women & Babies. She also pre-registered for her delivery at the hospital. (See Finding of Fact 83). During these visits, she signed at least five forms acknowledging her receipt of the NICA-published "Peace of Mind" brochure which explained her rights under the NICA Plan and her right to choose a non-NICA-affiliated provider if she wished to do so. Each acknowledgment form bore the heading, "ORLANDO REGIONAL HEALTHCARE." Each acknowledgment read as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGEMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc., and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191 /1(800)398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. (emphasis added). The acknowledgment forms do not name or otherwise identify any particular physician as a NICA participant. part: The NICA Peace of Mind brochure read, in pertinent If your health care provider has provided you with a copy of this informational form, your healthcare provider is placing you on notice that one or more physicians at your health care provider participates in the NICA plan. At final hearing, Ms. Santiago testified in English with an Hispanic accent, but she did not represent that she had a global inability to read or understand spoken or written English, and she was able to accurately read aloud the items printed in English which were placed in front of her. She identified her signature on all five NICA acknowledgment forms, and ultimately acknowledged that she had printed her name under her signature and filled in her Social Security number and Yandel's expected delivery date on four of them. Each of these particular four forms bears a sticker showing the name of either Dr. Carolyn Ladowski or Dr. Stephen Carlan, each of whom was then associated with the Faculty Practice. Ms. Santiago represented that she had never received the NICA brochure she had repeatedly acknowledged receiving and that she had volitionally signed one or more NICA acknowledgement forms without reading it/them simply because there were a lot of papers presented for her to sign each time she went to the Faculty Practice. As to all of the acknowledgment forms, Ms. Santiago variously represented that she had not understood the forms she was signing, because if she had understood them, she would not have signed them; that if she had understood them, she would have selected another hospital to go to for Yandel's birth; and that if she had understood the forms, then each time a form was presented to her after the first one was presented, she would have told the presenter of the form, the equivalent of "I signed this before, so I should not have to sign it again now," or "I will not sign again." Her "in the alternative" explanations, provided after the fact and in the course of litigation, are not credible. Nurse Kathy Winkleblack signed as the Faculty Practice's witness to Ms. Santiago's January 8, 2008, NICA acknowledgement form. As might be expected, she did not specifically recall Ms. Santiago. However, she testified that her usual procedure, in presenting the NICA brochure to an obstetrical patient and in securing that patient's signature on the acknowledgment form(s), was to explain orally that "all the physicians" or "all the doctors" at the Faculty Practice were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. In these oral explanations, Nurse Winkleblack made no distinction between "residents" and "resident physicians," and she did not name any specific physicians associated with the Faculty Practice. She simply said that "all the physicians" or "all the doctors" at the Faculty Practice participated in the NICA program. She used acknowledgment forms printed in English unless the obstetrical patient evidenced an inability to understand English, in which case she would use a brochure and acknowledgement form in one of three languages, including Spanish. She had an interpreter available if she needed one. The fact that Nurse Winkleblack had used an English form for Ms. Santiago on January 8, 2008, indicated to her that Ms. Santiago spoke and understood English reasonably well at that time. Nurse Winkleblack always signed as a witness after the patient signed. Three employees of Winnie Palmer Hospital for Women & Babies (Kyle Monroe, Francessca Torres, and Charlotte Wray), signed as witnesses to Ms. Santiago's signature at the hospital on the three acknowledgment forms of January 28, 2008, March 6, 2008, and March 20, 2008, respectively. None of them had a current recollection of Ms. Santiago, either. However, they consistently testified that their usual procedure, in presenting the NICA brochure to an obstetrical patient and in securing that patient's signature on the acknowledgment form(s) at the hospital, was to explain orally that "all the physicians" or "all the doctors" at the hospital were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. Each witness testified that s/he had made no distinction, in any oral explanation to any patient, between "residents" and "resident physicians." None of these witnessing hospital employees had named any specific physicians associated with the hospital in speaking with any obstetrical patients. Additional paperwork supports the January 28, 2008, acknowledgment form as being signed in the hospital, in that it shows that on January 29, 2008, Ms. Santiago underwent a procedure at the hospital. There is also testimony that suggests that one of the forms was associated with a pre- registration for delivery of Yandel. Ms. Winkleblack is credible that the January 8, 2008, form had been signed at the Faculty Practice by Ms. Santiago and by Ms. Winkleblack on Ms. Santiago's first visit to the Faculty Practice. Additional paperwork supports this. The foregoing clear, coherent, and consistent testimony of those who witnessed Ms. Santiago's signature(s), Ms. Santiago's identification of her own signature and other pertinent data on the acknowledgment forms, and Ms. Santiago's inconsistent and less than credible reasons why she would not have knowingly signed any acknowledgements after the first one, are persuasive that Ms. Santiago not only signed all the acknowledgment forms but that she signed them after she had the opportunity to read the NICA brochure and the opportunity to ask any questions she might have wished to ask, even if she did not actually utilize those opportunities. Despite the foregoing, Petitioners submit that the notices herein were faulty because the acknowledgment forms utilized the term, "resident physicians," instead of the individual names of the 22-27 Faculty Practice physicians and the more than 100 physicians on staff at the hospital in the same period. Petitioners reason that, although Ms. Santiago signed acknowledgment forms at both the hospital and the Faculty Practice, the notices she received only used the term "resident physicians" and so did not apprise her that anyone except residents at the Faculty Practice and the hospital were NICA participants. To support their theory, Petitioners rely upon Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, supra, which held, in pertinent part, that: . . . we find that both participating physicians and hospitals with a participating physician on staff are required to provide notice to obstetrical patients of their rights and limitations under the plan.. . . * * * Consequently, under our holding today, if either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimants can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA. (emphasis in original) Petitioners also rely on Florida Administrative Code Rule 64B8-6.004, which provides: 64B8-6.004 Resident Physician and Assistant Resident Physician; Definition of. A resident physician is one who has completed an internship and is engaged in a program of training designed to increase his knowledge of the clinical disciplines of medicine, surgery, or any of the other special fields which provide advanced training in preparation for the practice of a specialty. In the first year following the internship, the person is usually referred to as an assistant resident physician. In the second year, he is usually referred to as a resident physician. Even upon Petitioners' theory, it is abundantly clear that the hospital and Faculty Practice acknowledgment forms gave the notice required by section 766.316, covering the hospital and Faculty Practice residents and assistant residents, regardless of whether those types of residents were contemplated by section 766.314(4)(c). (See § 766.316 quoted at Finding of Fact 64). On the other hand, given that none of the physicians who attended Ms. Santiago for labor, delivery, or the postdelivery resuscitative period were specifically named on the acknowledgment forms presented to her at the Faculty Practice and at the hospital, and given that none of the Intervenors or Dr. Amyradakis gave individual pre-delivery notice of their NICA participation to Ms. Santiago in connection with Yandel's gestation or birth, it is fairly debatable whether the Faculty Practice or Winnie Palmer Hospital for Women & Babies gave notice on behalf of any physician other than their residents and assistant residents. In determining whether there was a lack of NICA notice by those other than Winnie Palmer Hospital for Women & Babies and its residents and assistant residents, and the Faculty Practice's residents and assistant residents, the case of Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 932 So. 2d 1125 (Fla. 5th DCA 2006), has been considered. In that case, personnel taking the obstetrical patient's acknowledgment of NICA coverage on behalf of a professional association of obstetricians had represented that "all our doctors are NICA participants," and the court concluded that they had thereby given satisfactory notice on behalf of all members of the professional association of obstetricians. The implications of Jackson, supra, have been carefully weighed and considered in light of the subsequent case of Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, supra, as well as in light of the "real world" consideration that most patients would not know or comprehend the Florida Administrative Code's legalistic definition of "resident," any more than the hospital and Faculty Practice employees who presented the NICA acknowledgment forms and brochure to Ms. Santiago comprehended that any distinction "at law" might exist between the terms "residents," "resident physicians," "physicians" and "doctors." Herein, the hospital provided its notice, using the same NICA brochure and the same acknowledgment form that the Faculty Practice did. Each of them provided those notices at their separate locations. Each form had the name "Orlando Regional Healthcare" at the top of the acknowledgment form. Each time Ms. Santiago signed one of the acknowledgment forms, she was told the equivalent of "all our doctors participate in NICA." Therefore, the record supports a finding that Ms. Santiago received NICA notice covering both the physicians and the hospital and does not support a finding that Ms. Santiago was misled with regard to NICA coverage. Intervenors have borne their burden of proof to show that the obstetrical patient herein acknowledged receipt of the NICA notice and have thereby established the rebuttable presumption that the notice requirements of section 766.316 were met. Petitioners have not rebutted that presumption. Accordingly, it is found that the NICA notice provided to Ms. Santiago was sufficient as to all hospital staff physicians and all physicians at the Faculty Practice.
The Issue At issue is whether Noah Taber (Noah), a minor, suffered a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes.1
Findings Of Fact Preliminary findings Dawn Tabor and Britt Tabor, are the parents and natural guardians of Noah Tabor, a minor. Noah was born a live infant on June 19, 1999, at Largo Medical Center, a hospital located in Largo, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Noah's birth was Ivelisse Ruiz-Robles, 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. Noah's presentation On April 23, 2002, following the filing of the claim for compensation, Noah was examined by Michael S. Duchowny, M.D., a pediatric neurologist associated with Miami Children's Hospital, Miami, Florida. Dr. Duchowny reported the results of his neurological evaluation, as follows: Noah's PHYSICAL EXAMINATION reveals Noah to be an alert, extremely active youngster. He weighs 25-pounds. The hair is blond and of normal texture. The head circumference measures 43.3 cm, which is several standard deviations below age level and median for age 5-month males. He has frequent tongue thrusting movements and drooling. There are no dysmorphic features and no cutaneous stigmata. The spine is straight. There is a small nevus flambeaus. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory and abdominal examinations are normal. Noah's NEUROLOGIC EXAMINATION reveals a small child with a short attention span and high activity level. Noah is difficult to control and has poor social skills. He did not articulate words during the evaluation. Noah tends to engage in simple games and there is no evidence of overtly aggressive behavior. He will perform very simple commands. Noah would not identify body parts for me. Noah's MOTOR EXAMINATION reveals generalized hypotonia in all extremities, with a slight dynamic increase of tone on the right. He has exaggerated range of motion on the left side, with normal range of motion on the right. There is no evidence of spasticity. Noah demonstrates a clear left hand preference and will grasp with both hands on the right. He can clearly use the right hand to manipulate objects and transfer to the left. There is also diminished arm swing on the right side, compared to the left. His overall movement is clearly more fluid on the left side of his body. He has bilateral pes planus and there is no clear asymmetry of gait with regard to the lower extremities. Muscle bulk is symmetric throughout. The deep tendon reflexes are bilaterally brisk at 3+ and both plantar responses are in extension. He walks in a straightforward manner and turns crisply. He would not cooperate for formal finger-to-nose or heel- to-shin testing. A sensory examination is grossly intact to withdrawal all extremities to touch. The cardiovascular examination reveals no cervical, cranial, or ocular bruits and no temperature or pulse asymmetries. An AFO is appreciated over the right ankle. In SUMMARY, Noah's neurologic examination is significant for microcephaly and a prominent cognitive impairment. In contrast, his motor deficit is much less severe and it appears to be improving steadily. I am not sure that he needs an AFO, as he has good range of motion. Noah also suffers from epilepsy. Following his examination, Dr. Duchowny had the opportunity to review Noah's medical records and concluded that: Although Noah has a substantial mental impairment, his motor abilities are only mildly behind age level and I suspect that he will continue to improve over the next several years. For this reason, I do not believe that Noah is eligible for compensation under the Florida NICA statute. 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 a "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the medical records and the results of Dr. Duchowny's neurological evaluation demonstrate Noah suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate post- delivery period that rendered him permanently and substantially mentally impaired; however, physically, he was not similarly affected or, stated otherwise, he was not rendered permanently and substantially physically impaired.
The Issue At issue in the proceeding is whether Clayton Kenneth Hunter Cochran (Hunter), a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Jean Ann Cochran and Clayton Leon Cochran, are the parents and natural guardians of Clayton Kenneth Hunter Cochran (Hunter). Hunter was born a live infant on June 12, 1997, at Orlando Regional Health Care System, Inc., d/b/a South Seminole Hospital, a hospital located in Longwood, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Hunter was John V. Parker, 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(2), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan, when the claimants demonstrate, more likely than not, that the infant 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 post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Hunter's mental and physical presentation are dispositive of the claim and it is unnecessary to address the cause or timing of any injury he may have suffered. To address Hunter's current physical and mental status, Petitioners offered the opinions of Michael S. Duchowny, M.D., a pediatric neurologist, as well as the results of Hunter's recent occupational therapy evaluations by the Easter Seal Program of Volusia and Flagler Counties. Notably, Dr. Duchowny examined Hunter on March 20, 2000, and reported the results of his neurological evaluation as follows: NEUROLOGIC EXAMINATION reveals Hunter to be alert and socially oriented. He tends toward non-fluency, but can communicate some thoughts in words. Hunter has a speech articulation defect. He can talk in phrases and short sentences. There is good central gaze fixation with conjugate following movements. The pupils are 3 mm and briskly reactive. There are no fundoscopic findings and no significant facial asymmetries. The tongue and palate move well without drooling. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy. The outstretched hands are markedly postured. His gait is stable and reasonably narrow based. The deep tendon reflexes are 2+ and symmetric. The plantar responses are downgoing. Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. The sensory and cerebellar examinations are deferred. In SUMMARY, Hunter presents as a 2 1/2 year old boy with an expressive language delay and speech dysfluency. In contrast, he has mild fine motor incoordination, but his examination is otherwise non-focal. I have not as yet had an opportunity to review Hunter's records and will issue a final report once the review process is complete. Subsequently, Dr. Duchowny had an opportunity to review the medical records, and on April 11, 2000, reported his conclusions as follows: A review of medical records and the medical evaluation of Clayton "Hunter" Cochran leads me to believe that he does not have significant neurologic impairment. His neurologic examination reveals evidence of an expressive language delay and some fine motor incoordination. Both of these findings are developmentally based and indicate acquisition in utero, long before the onset of labor and delivery. These findings are mild and there certainly is no evidence of substantial mental or motor impairment. Furthermore, Hunter's developmental delay would be expected to improve over time and therefore is not permanent. Dr. Duchowny's deposition testimony and the results of recent occupational therapy evaluations by the Easter Seal Program are consistent with the opinions heretofore expressed by Dr. Duchowny. Consequently, it must be resolved that the proof failed to demonstrate that Hunter was "permanently and substantially mentally and physically impaired," as required for coverage under the Plan.
Findings Of Fact Alvaro Tadeo Iriarte Quiroga was born on May 31, 2007, at Jackson Memorial Hospital in Miami, Florida. Alvaro weighed 2,865 grams at birth. NICA retained Michael S. Duchowny, M.D., as its medical expert in pediatric neurology. Dr. Duchowny examined Alvaro and reviewed his medical records. Dr. Duchowny opined as follows: In summary, Alvaro's neurological examination reveals evidence of abnormal cranial configuration, speech dysarthria, short attention span, high activity level, inconsistent social visual regard, and limited social interaction. He manifests an expressive language delay. He also demonstrates fine motor incoordination. These findings are consistent with a diagnosis of pervasive developmental disorder (PDD) which does not constitute either a substantial mental or motor impairment. A review of Alvaro's medical records indicates that he was born at 37 weeks gestation at Jackson Memorial Hospital with a birth weight of 2,865 gm. Cord Blood gases reveled [sic] significant acidosis and he did not get oxygen for a prolonged period of time (23 minutes). He went on to evidence renal failure and liver dysfunction and had polcythemia and thrombocytopenia. A brain CT scan revealed partial craniosynostois of the anterior sagittal suture. Of note, Alvaro's MRI scan of the brain performed on June 7, 2007 showed no significant abnormalities. Despite his adverse perinatal circumstances, I do not believe that Alvaro's present neurological problems resulted from either mechanical injury or oxygen deprivation in the course of labor or delivery. Furthermore, he has neither a substantial mental nor motor impairment. For these reasons, I am not recommending Alvaro for compensation within the NICA program. A review of the file does not show any opinion contrary to Dr. Duchowny's opinions Alvaro did not suffer a neurological injury due to oxygen deprivation or mechanical injury during labor or delivery and that Alvaro does not have a substantial and permanent mental and physical impairment due to lack of oxygen or mechanical trauma are credited.
The Issue Whether Nathan Eric Powell 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 Preliminary matters Nathan Eric Powell (Nathan) is the natural son of Paulette Schwab-Powell and Norman Powell. He was born a live infant on September 23, 1993, at North Florida Regional Medical Center, a hospital located in Gainesville, Alachua County, Florida, and his birth weight was in excess of 2,500 grams. The physicians providing obstetrical services during the birth of Nathan were Eduardo Marichal, M.D. and Gregory Bailey, M.D. NICA concedes that Eduardo Marichal, M.D., was a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. 2/ Nathan's birth and injury Paulette Schwab-Powell (Mrs. Powell) was admitted to North Florida Regional Medical Center at or about 6:30 p.m., September 22, 1993, in active labor. At the time, Mrs. Powell was slightly post-term, with an estimated date of delivery of September 11, 1993, and her prenatal course had been essentially uncomplicated. Mrs. Powell continued to have regular uterine contractions and at 10:25 p.m. her membranes were artificially ruptured, with clear fluid noted. Mrs. Powell continued progressing, and became completed dialated at 4:30 a.m., September 23, 1993. Thereafter, at or about 6:15 a.m. pushing was started, with assistance of a vacuum extractor. At 7:45 a.m., due to arrest of descent due to cephalopelvic disproportion, vacuum extraction was abandoned and the decision was made to proceed with a cesarean section. Mrs. Powell was taken to the operating room where a cesarean section was performed, and Nathan was delivered at 8:27 a.m. Upon delivery, Nathan required resuscitation, and his Apgar scores were 2 at one minute and 8 at five minutes. Within twenty-four hours of birth, Nathan developed intermittent tremors in the left leg, which were categorized as suspected seizures, and on September 24, 1993, he was transferred to the NICU II unit at Shands Teaching Hospital in Gainesville, Florida. Upon admission to Shands, Nathan evidenced a seizure and was placed on phenobarbital, later changed to Tegretol, to control his seizures. An EEG revealed seizures activity suggestive of diffuse cerebral dysfunction, and a CT scan revealed a bilateral subarachnoid hemorrhage, with fracture of the parietal bone. Nathan was initially hypertonic with poor suck, but showed gradual improvement until by September 28, 1993, he was able to take full feedings and was weaned off oxygen. On September 29, 1993, Nathan was discharged to the care of his parents, with maintenance Tegretol for seizure control. On November 24, 1993, Nathan was evaluated at the Pediatric Neurology Clinic. At the time, it was reported that Nathan continued on Tegretol and had not experienced any further seizures since those experienced immediately after his admission to Shands on September 24, 1993. A follow-up MRI was performed which showed resolving hemorrhage and no evidence of an ongoing fracture. On examination, Nathan evidenced good developmental milestones. The exam further revealed: . . . In terms of developmental milestones, Nathan has good head control for age. He has turned over one time. He recognizes mom's voice and smiles. On exam he has a height of 58.5 cm., weight of 5.48 kg., head circumference of 39.5 cm., temperature 37.2, pulse 164, respiratory rate of 28. On HEENT the patient's anterior fontanel is soft, flat, bilateral breath sounds are clear to auscultation. Heart rate is regular, no murmurs auscultated. Abdominal exam is benign for hepatosplenomegaly. No birth marks are detected. Specifically on neurologic the patient is awake, alert, easily rooting well. Cranial nerve exam reveals PERRLA, positive red reflex on funduscopic exam, tracking well. In terms of facial movement, there seems to be an asymmetry with a weekness on the left. It was difficult to assess forehead involvement as the baby neither cried nor smiled throughout the exam. It appears to effect [sic] his lower face as well as his left eyelid and mom adds that when he sleeps his left eye does not close spontaneously at times. Motor exam reveals normal tone. Reflexes were easy to elicit and approximately 5-10 beats of clonus was noted bilaterally with upgoing toes. Sensory is grossly intact. Cerebellar is appro- priate for age. As a consequence, it was concluded to continue Nathan on Tegretol, without further increase in dosage, and gradually wean him off the medicine as he gained weight, with the aim of discontinuing Tegretol by six months of age. On January 20, 1995, Nathan was evaluated by Michael Duchowny, M.D., at Miami Children's Hospital, in Miami, Dade County, Florida. Dr. Duchowny is board certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology. On examination, Dr. Duchowny found and reported the following observations: GROWTH AND DEVELOPMENT: Nathan rolled over at 5 months, sat at 7 months and stood at 9 months, he walked at a year and is not yet toilet trained. PHYSICAL EXAMINATION: Reveals Nathan to be an alert, pleasant and cooperative infant. His weight is 24 lbs and height a 34 inches, his skin is warm and moist and no neurocutaneous stigmata, the head circumference measures 48.1 cm. which is in standard percentiles, neck is supple with out masses, thyromegaly or adenopathy and the cardiovascular, respiratory and abdominal examinations are normal. There are no digital, skeletal or palmar abnormalities. Nathan's NEUROLOGICAL EXAMINATION: Reveals him to be alert and cooperative, he maintains an age appropriate stream of attention and cooperative fully with the examination. He has a good level of curiosity. Nathan did not speak but babble quite melodically throughout the interview. Nathan maintain a good central gaze fixation and congenically follows quite well. There is blink to threat in both directions, the funduscopic examination are unremarkable the pubils [sic] are 4 ml and react briskly to direct and consensually presented light. There are no nasolabial asymmetries and the tongue and palate move well, the gag reflex is appropriate active. Motor examination reveals generalized diminution in muscle tone. Motor examination reveals generalized diminution in muscle tone. This is present in a symmetric fashion in all extremities and there is increase range of motion at all joints. I detected no evidence . . . of spasticity or hypotonia and Nathan additionally demonstrate full use of all limbs. He grasp for offered objects with either hand and transferred readily. There is good fine motor movement and thumb finger opposition bilaterally. The deep tendon reflexes were slightly brisk being 2-3+ with both plantar responses being down ongoing. Station and gait revealed the stability in normal stands but a slight truncal ataxia while walking, however, Nathan turn crisply and did not fall. Sensory examination was deferred. Neurovascular examination reveal cervical cranial and ocular bruit and no temperature or pulse asymmetries. In SUMMARY, Nathan neurological examination in detail reveals only mild delays in motor and speech function. I regard the lateralized motor syndrome to be fully resolved. The foregoing findings of Dr. Duchowny are consistent with the other evidence of record which reveals that the consequences of the injury Nathan suffered at birth have, over time, continued to improve. Consequently, the opinion of Dr. Duchowny that Nathan does not suffer a permanent and substantial physical impairment or a permanent and substantial mental impairment is credited.
The Issue Whether Darius Jerome Durant has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in their claim for compensation. 1/
Findings Of Fact Darius Jerome Durant is the natural son of Jerome Durant and Marie Deneen Durant. He was born on August 21, 1991, at Winter Haven Hospital, in Winter Haven, Florida, and his birth weight was in excess of 2500 grams. Darius was delivered by Peter Verrill, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The neurological examinations of Darius reveal that he suffers from a "mild" right Erb's palsy related directly to an injury to the right brachial plexus he suffered during the course of delivery. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, the impairment from which he suffers is not substantial in nature and, while suffering some motor developmental delay, he was not shown to have suffered any intellectual deficit due to any birth-related complications.
