The Issue At issue is whether David Britt, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Fundamental findings Petitioners, Sandra Britt nee Sandra Nap and Frank Britt, are the parents and natural guardians of David Britt, a minor. David was born a live infant on November 9, 1997, at Tampa General Hospital, a hospital located in Tampa, Florida, and his birth weight exceeded 2,500 grams. The physicians providing obstetrical services during David's birth included the attending physician, Catherine Lynch, M.D., an attending faculty physician with the University of South Florida, College of Medicine, as well as a number of resident physicians from the University of South Florida, College of Medicine. At the time, Dr. Lynch was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes, and the resident physicians, supervised by Dr. Lynch, were deemed participating physicians under the provisions of Section 766.314(4)(a), Florida Statutes.2 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded that David suffered a "birth- related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, proposes to accept the claim as compensable under the Plan. NICA's conclusion is grossly consistent with the proof and, consequently, its proposal to accept the claim as compensable is approved. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the healthcare providers' claim of Plan immunity by contending that the hospital and the attending physician3 failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the healthcare providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, supra. As a prelude to resolving the notice issue, it is noted that Mrs. Britt received her prenatal and intrapartum care at the Genesis Clinic (an obstetric and gynecologic health care facility) and Tampa General Hospital (TGH), facilities owned and operated by the Hillsborough County Hospital Authority. Pertinent to this case, the proof demonstrates that TGH manages the clinic, and provides the necessary nursing and clerical workers; however, prenatal care and intrapartum care are provided, pursuant to an "affiliation agreement," by physicians (faculty and resident) associated with the University of South Florida, College of Medicine, Department of Obstetrics and Gynecology, who are employed by the Florida Board of Regents. Regarding her prenatal care, the proof demonstrates that Mrs. Britt's initial visit to the Genesis Clinic occurred on March 26, 1997.4 Typically, such a visit would include registration, financial consultation, a tour and orientation, and prenatal lab work. Here, as would be expected, Mrs. Britt initially presented to the front desk where she registered (signed in) and provided certain basic information about herself to complete a patient profile. Following completion of the patient profile, Mrs. Britt presented to the financial counselor, whose office was adjacent to the front desk and faced the patient waiting area. During the course of that meeting, the proof demonstrates that the financial counselor (Norma Kringel, currently known as Norma Kringel Tooley) reviewed Mrs. Britt's patient profile and, apparently satisfied that Mrs. Britt was Medicaid eligible, provided her with a packet (a plastic bag) containing various samples and child care information, as well as a Genesis Social Assessment form to complete. Following completion of that form, the financial consultant provided Mrs. Britt with a brochure prepared by NICA titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Notably, the brochure included the following language: You are eligible for this protection if your doctor is a participating physician in the Association. Membership means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. Notwithstanding, while the consultant encouraged Mrs. Britt to read the brochure, she did not identify the physicians who would be providing Mrs. Britt's obstetrical care or advise her (as she easily could have) that the physicians who would be providing such care were participants in the Plan.5 The next step in the process presents the most problematic issues with regard to notice. According to the proof, at the conclusion of her meeting with the financial consultant, a new patient, such as Mrs. Britt, was directed to the patient waiting area, where she was to await the health education coordinator (Patricia Ogden, R.N.) for an orientation tour of the facility and classroom presentation. According to Nurse Ogden, it was her established procedure to collect the new patients in the waiting area, and then proceed with a tour of the facility, explaining the various services that were available, followed by a classroom session. During the course of the tour, it was Nurse Ogden's practice to explain to the patients that TGH provides prenatal care at the clinic in "affiliation" with the University of South Florida, College of Medicine, and that the physicians who would be providing obstetrical care were residents (M.D.s) now specializing in obstetrics and gynecology and that their services were under the direct supervision of an attending faculty physician. During the classroom session, it was Nurse Ogden's practice to, inter alia, hold up the "Peace of Mind" brochure to ensure that each new patient had one, explain that the affiliated group of physicians from the University of South Florida who would be providing their obstetric care were participants in the Plan, and advise the patients that if they had any questions regarding the Plan they should consult with their physicians. Following the classroom session, the new patients would then proceed to the final stage of their initial visit, prenatal lab work. From the routine practice established by the clinic for an initial visit by new patients, Intervenors suggest it is reasonable to infer that Mrs. Britt participated in the tour and classroom session, and was therefore informed as to the identity of her physicians (as a group) and that they were participants in the Plan. As additional proof that Mrs. Britt participated in the tour and classroom session, Intervenors point to the Progress Notes of Mrs. Britt's initial visit of March 26, 1997, which contains a check mark next to an item titled "Orientation tour and class session attended by patient," signed by Nurse Ogden. Notably, however, Nurse Ogden took no roll call or otherwise identified the patients who accompanied her on the tour or participated in the classroom session, and executed the Progress Notes confirming a patient's attendance on the tour and at the classroom session based solely on a list of new patients who had registered (signed in) at the reception desk that day. Consequently, the Progress Notes provide no independent or compelling proof, distinguishable from that which might be inferred from the clinic's routine practice, that Mrs. Britt attended the orientation tour and class session on March 26, 1997. Contrasted with the conclusion Intervenors would suggest be drawn from the Clinic's routine procedure for new patients, Mrs. Britt testified that she did not participate in an orientation tour and class session, and was never informed that the physicians who would provide her obstetrical care were participants in the Plan.6 As independent evidence that she did not follow the routine established for new patients, Petitioners point to the clinic's records, which reveal that she did not, as would be routine, present for prenatal lab work on March 26, 1997, but returned to the clinic on March 27, 1997, for that lab work. Given the proof, it cannot be resolved with any degree of confidence that, more likely than not, Mrs. Britt attended the orientation tour and classroom session. Consequently, since the tour and classroom session was the only occasion (apparent from the record) that patients were advised that their physicians were participants in the Plan, it must be resolved that the proof fails to support the conclusion that Mrs. Britt was ever provided notice that her physicians were participants in the Plan. While the proof failed to demonstrate that Mrs. Britt received notice on behalf of the participating physicians, it did demonstrate that TGH provided timely pre-delivery notice to Mrs. Britt, as envisioned by Section 766.316, Florida Statutes. In this regard, the proof demonstrated that on October 19, 1997, during the course of pre-registration at TGH, Mrs. Britt was again given a copy of the brochure (prepared by NICA) titled "Peace of Mind for an Unexpected Problem," which, as previously noted, contained a concise explanation of the patients' rights and limitations under the Plan.
Findings Of Fact Based upon the evidence adduced at the July 14, 1993, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Kathleen Behan is the natural daughter of Mary Lou and Gerald Behan. She was born on November 30, 1989, at Plantation General Hospital in Broward County, Florida. Her birth weight was in excess of 2500 grams. Kathleen was delivered by caesarian section performed by the family's obstetrician, Mariano J. Rodriguez, Jr., M.D., after her mother had experienced a spontaneous rupture of the fetal membrane. At the time of Kathleen's birth, Dr. Rodriguez was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. Kathleen had an Apgar score of 6 one minute after birth and an Apgar score of 9 five minutes after birth. Apgar scores reflect the attending physician's or nurse's assessment of the newborn infant's well-being based upon clinical observations regarding the infant's heart rate, respiratory effort, color, muscle tone, and reflexes. The higher the score, the greater the state of well being. The highest score attainable is a 10. Apgar scores are commonly used to determine if a newborn infant has suffered a neurological injury of a substantial and permanent nature during labor or delivery or in the immediate post-delivery process. Kathleen's Apgar scores are not consistent with her having suffered such a birth-related injury. After her condition was evaluated, Kathleen was taken from the delivery room to Plantation's "well-baby" nursery. She remained there without incident until December 2, 1989, when she was found asystolic in her crib after having experienced an acute life-threatening event or ALTE. Kathleen was resuscitated and survived the incident. She, however, has neurological impairment. The neurological impairment from which she now suffers was not the product of oxygen deprivation or mechanical injury that occurred during labor or delivery or in the immediate post-delivery period.
The Issue The petition (claim) filed on behalf of Petitioners presented the following issues for resolution:1 Whether the claim is compensable under the Florida Birth-Related Neurological Injury Compensable Plan (Plan). Whether the notice provisions of the Plan were satisfied. Whether the exclusiveness of remedy provision of the Plan is an available defense to a nurse midwife or hospital when no civil claim has been made against the participating physician. Whether the amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes (Supp. 1998), which accorded the administrative forum exclusive jurisdiction to resolve whether claims are covered by the Plan, may be applied retroactively.
Findings Of Fact Fundamental findings Petitioners, Maria Ferguson (formerly known as Maria Mish) and Garry Ferguson, are the parents and natural guardians of Casey Ferguson, a minor. Casey was born a live infant on January 28, 1997, at Morton Plant Mease Health Care, Inc., d/b/a Mease Hospital Dunedin (Mease Hospital), a hospital located in Dunedin, Florida, and her birth weight exceeded 2,500 grams. The physician who provided obstetrical services during Casey's birth was Harvey A. Levin, M.D., and he was, at the time, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Services were also provided during the course of birth by Lenore V. McCall, a certified nurse midwife (C.N.M.). At the time, Ms. McCall had not paid the assessment requirement by Section 766.314(4)(c) and (5)(a), Florida Statutes, and was not a "participating physician" in the Plan. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . 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 Casey suffered a "birth-related neurological injury," as defined by the Plan. NICA's conclusion, as well as the parties' stipulation, is grossly consistent with the record. Consequently, since obstetrical services were provided by a participating physician at birth, the claim is compensable, and NICA's proposal to accept the claim is approved.3 Sections 766.309(1) and 766.31(1), Florida Statutes. 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. Levin), as well as the hospital (Mease Hospital), failed to comply with the notice provisions of the Plan.4 Consequently, it is necessary to resolve whether, as alleged by the health care providers, the notice provisions of the Plan were satisfied. 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., 793 So. 2d 999 (Fla. 3d DCA 2001). Pertinent to this issue, it is worthy of note that, at the time of Casey's birth, Section 766.316, Florida Statutes, prescribed the notice requirements, as follows: Notice to obstetrical patients of participation in the plan.--Each hospital with a participating physician on its staff and each participating physician . . . under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof 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. It is further worthy of note that NICA developed a brochure titled "Peace of Mind for An Unexpected Problem" to comply with the statutory mandate, and distributed the brochure to participating physicians and hospitals so they could furnish the brochure (form) to their patients. Turning now to the case at hand, it is observed that Mrs. Ferguson received her prenatal care at A Woman's Place, an office maintained for the practice of obstetrics and gynecology by Harvey A. Levin, M.D., and A. Trent Williams, M.D., at 5347 Main Street, Suite 302, New Port Richey, Florida. Also active in the practice were a number of midwives, including Lenore McCall. Of note, Doctors Levin and Williams delivered exclusively at Mease Hospital Dunedin. Regarding her care, the proof demonstrates that Mrs. Ferguson's initial visit to A Woman's Place occurred on May 30, 1996. As would be expected, Mrs. Ferguson initially presented to the front window (front desk), registered her presence (by writing her name on the pad at the front window), and then took a seat in the waiting room. Shortly thereafter, Mrs. Ferguson was recalled to the front window and given a number of forms (referred to as a packet in this proceeding) to fill out, date, sign, and return before she could be seen by a healthcare provider. Among the documents she completed and returned to the front desk was a form titled Notice to Obstetric Patient,5 which provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by A WOMAN'S PLACE AND/OR MEASE HOSPITAL prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Drs. Levin and Williams are participating physicians 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 , 199 . Signature (NAME OF PATIENT) Social Security Number Attest: (Nurse or Physician) Date: Here, Mrs. Ferguson acknowledges receipt of the Notice to Obstetric Patient, and therefore notice that Doctors Levin and Williams were participants in the Plan, but denies receipt of the brochure prepared by NICA. Notably, it is that brochure, titled Peace of Mind for An Unexpected Problem, which contains the "clear and concise explanation of a patient's rights and limitations under the [P]lan" required by the notice provisions of Section 766.316, Florida Statutes.6 In response to Mrs. Ferguson's denial, and to buttress its argument that Mrs. Ferguson received the brochure, Mease Hospital offered proof regarding the customary practice employed by A Woman's Place for all new patients. According to Joanie Perkins, the OB coordinator, all new patients were routinely handed a number of forms (the packet) to fill out on their first visit, including the Notice to Obstetric Patient, with a copy of the NICA brochure attached. The packets were prepared by Ms. Perkins once or twice a month in quantities of 20 or 30, and stored at her desk until needed. Then, the day preceding a new patient's first visit, she would place a packet inside the new patient's file (also referred to as a chart) and give the file to the front desk clerk. On arrival, the front desk clerk would hand the packet (on a clipboard) to the new patient. When returned to the clerk, the forms were then given back to Ms. Perkins, who would put them in the patient's chart. Following completion of the forms, a new patient was routinely seen by Ms. Perkins, who entered certain basic information on the patient's antepartum record (such as, the date of the first visit; the patient's name, address, date of birth, and insurance carrier; the hospital where delivery was to occur; and height and weight). It was also during this period that Ms. Perkins routinely distributed to the new patient what was referred to as the OB packet. That packet included a folder from Mease Hospital (also referred to by the hospital as their baby book), which contained information about the hospital and other materials, including pre-registration papers. The OB packet also included a prenatal care booklet, as well as education materials pertaining to Lamaze and exercise classes, and information pertaining to anesthesia. Samples of pre-natal vitamins, coupons for diaper bags, and other miscellaneous materials were also included in the OB packet. Following her meeting with Ms. Perkins, the new patient was then referred to a physician or nurse midwife to complete her initial visit. Contrasted with the conclusion one would draw from her acknowledgment execution of the Notice to Obstetric Patient and the customary practice of A Woman's Place, Mrs. Ferguson testified that not only was the NICA brochure not attached to the notice she signed, but the only items she received that day were a book titled Child Birth Planner and some prenatal vitamins. The reasons for Mrs. Ferguson's statements are two-fold. First, according to Mrs. Ferguson, she recalls that one of the forms referred to an attachment or additional document that was not included, and that when she brought this oversight to the attention of the front desk clerk she was unable to locate one. Of note, the only form Mrs. Ferguson signed that day that referred to another document she should have received was the Notice to Obstetric Patient. Second, Mrs. Ferguson observed that she is compulsive regarding the retention of documents, and that with regard to her pregnancy with Casey she retained every document she received from, inter alia, A Woman's Place and Mease Hospital. Those documents, which Mrs. Ferguson identified as Petitioners' Exhibit 5A-5Y at hearing, did not include a NICA brochure or a Mease Hospital baby book, but did include two pages of education materials pertaining to Lamaze and exercise classes, and information pertaining to anesthesia, all of which were customarily included in the new patient OB packet. Also included was a booklet Mrs. Ferguson received when she participated in a tour of the Mease Hospital Maternity Center. Of note, the availability of Maternity Center tours was a topic addressed in the hospital's baby book. Here, giving due consideration to the proof, it must be resolved that, more likely than not, Mrs. Ferguson received the NICA brochure on her initial visit, as evidenced by her signature on the Notice to Obstetric Patient and as one would anticipate from the customary practice of A Woman's Place. It is further resolved that, more likely than not, Mrs. Ferguson received the OB packet on her initial visit, which included a Mease Hospital baby book. In concluding that Mrs. Ferguson did receive a copy of the NICA brochure on her initial visit, the testimony of Mrs. Ferguson to the contrary, has clearly not been overlooked. However, Mrs. Ferguson's testimony, both in deposition and at hearing, demonstrates that she had very little recall of the events which took place during her initial visit. Moreover, while Mrs. Ferguson suggests that the front desk clerk could not locate a NICA brochure, the compelling proof reflects that the brochures were readily available and that staff was aware they could be obtained at Ms. Perkins' desk. In concluding that Mrs. Ferguson also received the OB packet on her initial visit, the testimony of Mrs. Ferguson to the contrary has also not been overlooked. However, for reasons similar to those noted with regard to the NICA brochure, Mrs. Ferguson's testimony has been found unpersuasive. While Mrs. Ferguson received notice on behalf of the participating physician, the proof failed to demonstrate that Mease Hospital provided any pre-delivery notice, as envisioned by Section 766.316, Florida Statutes. Moreover, there was no proof offered to support a conclusion that the hospital's failure to accord Mrs. Ferguson pre-delivery notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. In reaching such conclusion, the inclusion of the hospital's name in the Notice to Obstetric Patient provided by A Woman's Place to Mrs. Ferguson has not been overlooked. However, the reason the hospital's name was included on the form stands unexplained, and there is no proof that A Woman's Place was requested or authorized to provide notice on behalf of the hospital. Indeed, for all that appears of record, the inclusion of the hospital's name was gratuitous, and can hardly be deemed to satisfy the hospital's independent obligation under Section 766.316, to provide notice to Mrs. Ferguson.7 Finally, in concluding that the hospital did not provide pre-delivery notice as envisioned by the Plan, the testimony offered by the hospital (through the deposition of Rosemary Atkinson, Intervenor's Exhibit 1), wherein she testified that the hospital routinely included a copy of the NICA brochure in its baby book, has likewise not been overlooked. However, given the absence of proof regarding the manner in which the hospital's baby books were assembled, the method employed to distribute them to physicians, and the manner in which the books were safeguarded at the physician's office prior to distribution, such proof is inadequate to allow a conclusion to be drawn with any sense of confidence that a baby book given to a patient, such as Mrs. Ferguson, contained a NICA brochure. Moreover, even if it could be demonstrated that the baby book contained a copy of the NICA brochure (commingled with other papers) when it was given to Mrs. Ferguson, the absence of any statement or explanation to draw her attention to the brochure, or its significance, could hardly be considered notice as that word is commonly understood and as that word is used in the Plan.
Findings Of Fact Lukas was born on December 23, 2017, at Sacred Heart Hospital, located in Escambia County, Florida. Donald Willis, M.D. (Dr. Willis) was requested by NICA to review the medical records for Lukas. In a medical report dated January 14, 2020, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was induced at 37 weeks due to a prior fetal demise. The newborn was depressed at birth with Apgar scores of 1/6/7. Bag and mask ventilation was required for 2-minutes. The initial blood gas after birth had a base excess of -16. The baby was anemic at birth. Evaluation identified adrenal hemorrhage as the etiology for the anemia. MRI on DOL 9 showed a small subarachnoid hemorrhage. The mother was being treated with Lovenox, an injectable anticoagulant. Lovenox does not cross the placenta and would not be factor in the fetal adrenal or subarachnoid hemorrhage. The adrenal and subarachnoid hemorrhage were more likely related to birth related hypoxia. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain. Based on the cord blood gas pH >7.1, it is unlikely any significant oxygen deprivation occurred prior to birth. However, some degree of oxygen deprivation likely occurred in the immediate post-delivery period, based on the base excess of -16 on the initial blood gas in the nursery and both adrenal and subarachnoid hemorrhages identified by ultrasound. I am unable to comment on the severity of the brain injury. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert specializing in maternal-fetal medicine and pediatric neurology, to examine Lukas and to review his medical records. Dr. Sheth examined Lukas on February 18, 2020. In a medical report dated March 8, 2020, Dr. Sheth summarized his examination of Lukas and opined in pertinent part as follows: In SUMMARY, Lucas’s [sic.] neurological examination reveals evidence of behavioral problems, and stereotypic behaviors with expressive language delay concerning for autism spectrum disorder, and generalized axial hypotonia and mild appendicular hypertonia evidenced only in gait, with apparent preserved visual acuity, and a history of epilepsy that started at age 6 months and generalized tonic clonic seizures with a history of 4 fever related seizures. Much of Lucas’s [sic.] neonatal course was detailed in the history of present illness. He was born at 37 weeks gestation. Delivery was vaginal with an epidural. The NICU team was called emergently to labor and delivery patient appeared depressed and unresponsive pale. Positive pressure ventilation for about 2 minutes was undertaken. Spontaneous breaths were established at this time. Heart rate improved within 30 seconds of positive pressure ventilation. By 40 minutes of age the patient was active normal tone had a good gag good suck responsive pupils and normal Moro. Serial neuro exams for the next 24 hours of life were normal. He was not felt to meet criteria for brain cooling. MRI revealed a slight extra-parenchymal hemorrhage in the subarachnoid space without significant intra- parenchymal involvement. While he has seizures they did not develop till he was approximately six months old and he was not noted to have neonatal seizures. His head appears to be growing appropriately with regards to head size. He has not had a genetic evaluation or developmental pediatrics evaluation. As such Lucas [sic.]would not appear to meet NICA specified criteria for compensation under the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Lukas. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sheth’s opinion that Lukas should not be considered for inclusion in the NICA program. Dr. Sheth’s opinion is credited. The Unopposed Motion for Summary Final Order states that “Respondent has conferred with Petitioners’ attorney and is authorized to represent that Petitioner is in agreement and not opposed to this motion.”
The Issue Whether Hunter Lewis, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Angel Lewis and Jerry Lewis, are the parents and natural guardians of Hunter Lewis, a minor. Hunter was born a live infant on June 2, 2000, at Tallahassee Memorial Hospital, a hospital located in Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Hunter's birth was Arthur S. Clements, 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.1 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. The cause and timing, as well as the significance of Hunter's neurologic impairment To address the cause and timing of Hunter's neurologic impairment, as well as its significance, Petitioners offered selected medical records relating to Hunter's birth and subsequent development (Petitioners' Exhibit 1); the Verified Medical Opinion of Richard J. Inwood, M.D., a neonatologist (Petitioners' Exhibit 2); and the deposition of Donald C. Willis, M.D., an obstetrician (Petitioners' Exhibit 3). In turn, Respondent offered the deposition of Paul R. Carney, M.D., a pediatric neurologist (Respondent's Exhibit 1). As for the significance of Hunter's impairments, it was Dr. Carney's opinion, based on the results of his neurologic evaluation of November 21, 2002, that Hunter's assessment "indicates substantial cognitive and language impairment," but "very mild long tract neurological findings." Dr. Carney described Hunter's developmental delay as static, as opposed to progressive, and he ventured no opinion as to the cause or timing of Hunter's impairments. As for Dr. Inwood, he was of the opinion that: . . . Hunter Lewis [ ] was delivered by induced labor prior to 38 weeks and had immature lungs. Because of the immaturity of the lungs he suffered hypoxic insult and, to a reasonable degree of medical probability, sustained significant neurological injury. This injury would not have occurred had his delivery been delayed until he had demonstrated lung maturity. His problems are not congenital and did not occur during labor or delivery, but rather after delivery . . . . Notably, Dr. Inwood did not further address Hunter's neurologic injury or, stated otherwise, did not speak to whether in his opinion, Hunter suffered both cognitive and motor impairment and, if so, the significance of each. As for Dr. Willis, he was of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with labor, delivery, or resuscitation immediately following Hunter's birth. Significantly, the medical records are consistent with the opinions of Doctors Inwood and Willis that the cause and timing of Hunter's impairment was not associated with labor, delivery, or resuscitation, and with the opinion of Dr. Carney that, while Hunter may demonstrate substantial cognitive delay, his motor impairment is mild. Given the record, it must be concluded that the proof demonstrated, more likely than not, that Hunter's impairments were not occasioned by an 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 the hospital, and that he is not permanently and substantially physically impaired.
The Issue Whether Samuel J. Anderson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physicians provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2004), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2004), or the giving of notice was not practicable.2 Whether Certified Nurse Midwife (CNM) Christine Hilderbrandt was a "participating physician," given the requirements of Sections 766.302(7) and 766.314(4)(c) and (d), Florida Statutes.
Findings Of Fact Stipulated facts related to compensability Allison Anderson and Timothy Anderson are the natural parents of Samuel J. Anderson, a minor. Sam was born a live infant on July 29, 2004, at Helen Ellis Memorial Hospital, a licensed hospital located in Tarpon Springs, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Sam's birth by Matthew Conrad, 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. Sam's birth and neonatal course4 At or about 3:30 a.m., July 29, 2004, Mrs. Anderson, with an estimated delivery date of July 30, 2004, and the fetus at 39 6/7 weeks' gestation, presented to Helen Ellis Memorial Hospital complaining of uterine contractions. Notably, vaginal examination at 4:30 a.m., revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high; uterine contractions were noted as irregular (inconsistent with active labor); and external fetal monitoring was reassuring for fetal well-being, with a baseline of 130 beats per minute. At 5:30 a.m., the on-duty nurse reported Mrs. Anderson's condition by telephone to Christine Hilderbrandt, R.N., the certified nurse-midwife (CNM) managing Mrs. Anderson's care. CNM Hilderbrandt gave orders to continue monitoring, and at 6:15 a.m., the fetal heart rate (FHR) was noted as reactive, and uterine contractions were again noted as irregular. At 9:00 a.m., CNM Hilderbrandt was noted at bedside, and examined Mrs. Anderson. At the time, vaginal examination revealed the cervix at 2 centimeters dilation, 50 percent effacement, and the fetus high; the cervix was noted as very soft; and fetal heart rate remained reassuring. A report was called to Matthew Conrad, M.D., the on-call physician, who authorized augmentation of labor, with pitocin. Pitocin induction was started at 9:45 a.m.; onset of labor was called at 3:45 p.m.; epidural bolus was given at 4:14 p.m.; spontaneous rupture of the membranes, with clear fluid, was noted at 4:15 p.m.; and complete cervical dilation was noted at 5:50 p.m. In the interim, at 4:40 p.m., variable decelerations to the 70-beat per minute range were noted, with contractions, and Mrs. Anderson was given oxygen by mask. Thereafter, variables were noted as minimal, with a baseline in the 140s, and a decline to the 110s to 120s, with prompt return to baseline. However, at 6:20 p.m., the fetal heart monitor showed the onset of severe bradycardia, when Sam's heart rate dropped to the 70s for 20 seconds, with a brief return to baseline; then at 6:21 p.m., dropped to the 70s for 90 seconds, and returned to baseline for 10 seconds; and at 6:22 p.m., dropped to 75 for 4 minutes and 40 seconds. The fetal monitor was disconnected at 6:27 p.m., and Mrs. Anderson was moved to the operating room (OR) for an emergency cesarean section. In the interim, at 6:26 p.m., Dr. Conrad was paged. Dr. Conrad entered the operating room at 6:47 p.m., to find the patient prepared and draped for cesarean section; rapid sequence induction (RSI) of anesthesia was accomplished at 6:48 p.m.; the operation started (the incision was made/delivery began) at 6:49 p.m.; and Sam was delivered at 6:50 p.m. Dr. Conrad's Operative Report documented his findings, as follows: Upon entering into the abdominal cavity, a gush of blood was observed. The infant was discovered floating freely in a puddle of blood behind the uterus along with the placenta and the umbilical cord. The infant was delivered at 18:50, completely flaccid, and passed on to an awaiting Neonatologist for resuscitation. The anterior surface of the uterus was intact but was remarkable for scarring of the bladder flap to the lower uterine segment along an indentation line, especially at the left corner, consistent with a previous transverse Cesarean Section. The posterior surface of the uterus was blown apart with a 15 cm circular rent extending to and including the left lateral vessels, the left round ligament, and extending down the left side of the cervix to an apex approximately 2 cm above the external os. Multiple bleeding sites, including the left uterine artery and vein, were gushing blood on entry. The left broad ligament was mangled and shredded. The defect in the posterior wall of the uterus was irregular with a shredded border and extended inferiorly to a position near the internal os of the cervix. This hole was measured to be approximately 15 cm in diameter. * * * The bleeding was quickly controlled by the application of clamps on the offending vessels and a transfusion of packed red blood cells begun. Careful examination of the defect was performed with the findings as noted above. The defect included nearly the entire back wall of the uterus to the level of the internal os which is to say that the uterine fundus was half amputated from the cervix by force of the trauma. Additionally, the edges of the defect were shredded. My conclusion was that this uterus was damaged beyond repair and the decision to proceed to supracervical hysterectomy was made . . . . Of further note, at delivery, a true knot was observed in the umbilical cord. Dr. Conrad's preoperative diagnosis was fetal distress, and his postoperative diagnosis was ruptured uterus. At delivery, Sam was flaccid, with no respiratory effort or spontaneous movement. Delivery room resuscitation included positive pressure ventilation (PPV) by bag and mask followed by intubation at 4 minutes of age for persistent apnea. Very infrequent gasping respirations stated at approximately 30 minutes of age, with sustained respiration after 60 minutes of age. Apgar scores were recorded as 3, at one, five, ten, fifteen, twenty, twenty-five, and thirty minutes.5 Cord blood gases were not obtained. Following resuscitation, Sam was moved to the newborn nursery and placed on a ventilator (full ventilatory support with a endotracheal intubation). Sam was diagnosed with perinatal depression/severe hypoxic-ischemic encephalopathy (HIE) secondary to uterine rupture, metabolic acidosis, and noted to be in critical condition. At 7:55 p.m., the Tampa General Hospital transport team, which had been requested while Sam was being resuscitated in the OR, arrived at Helen Ellis Memorial Hospital to assume responsibility for Sam's care, and transported him (via helicopter) to the neonatal intensive care unit (NICU) at Tampa General Hospital. Sam was admitted to Tampa General Hospital at 9:20 p.m., July 29, 2004. Initial examination revealed a hypotonic baby, with decreased tone, with no papillary or gag reflex, who only responded to painful stimulation, and who was intubated and "seizing" ("lip smacking, twitching of the face, later with tonic clonic seizures"). Sam was started on phenobarbital. CT of the head (CT) on July 29, 2004, was read as follows: There is incomplete definition of the gray and white matter borders with areas of low attenuation suggesting diffuse cerebral edema. The cisterns are patient. No hydrocephalus is identified. There is prominence of the falx with no definite blood identified. Follow up is recommended. IMPRESSION: Geographic low attenuation suspicious for diffuse cerebral edema. Follow up or correlation with ultrasound examination may be beneficial. Prominence of the falx with no definite acute hemorrhage identified. An Electroencephalogram (EEG) on July 30, 2004, showed a low-voltage background without seizure activity. The results of the EEG and a neurologic consult were reported in the Consultation Report, as follows: . . . The baby was examined shortly after EEG was completed. During the entire EEG, there were intermittent twitching of lower extremities or lower face including mouth and one or both of the lower extremities. When the twitching extremity is restrained, the twitching stops, but also can be brought on by stimulation. The baby is not responding in any purposeful manner to stimulation. However, the baby does open the eyes and at times appears that it is spontaneous, but most of the time there is upper eyelid twitch and it is possible that the twitching pulls the upper eyelid up and eyes open. The pupils are small, about 1 to 2 mm and reactive to light. Corneal reflex is present, but sluggish and eyes move very slowly to doll's eye maneuver. Gag is absent, but at the time of mouth twitching, the twitching is transmitted to the palate. On examination of neuromuscular system, muscle bulk is normal, tone is decreased and there is no meaningful spontaneous movements and no purposeful movements to stimulation. The only movements that are present are intermittent twitching of either one or both feet at the same time. Deep tendon reflexes are brisk mainly in the legs, 3+. There are no rashes, no organomegaly and there is no obvious injury to the body. IMPRESSION: This is a one-day-old baby with hypoxic ischemic encephalopathy likely caused by uterus rupture. The present twitching does not represent epileptic seizures. EEG showed no correlation between the movements and EEG abnormalities. Actually the EEG is quite severely depressed. The twitching which involves the lower extremity and mouth most likely represent brain stem phenomenon and for such phenobarbital is usually not helpful. RECOMMENDATIONS: Stop phenobarbital. As long as the movements do not interfere with vital signs, no treatment is indicated. The prognosis for neurological improvement is guarded at this time. Should any new developments occur, please reconsult neurology. Seizure activity did not continue beyond the day of admission, and phenobarbital was discontinued on July 31, 2004. A repeat EEG on August 2, 2004, was severely abnormal because of depressed cerebral activities with pattern reminiscent of burst suppression. A repeat CT scan of August 3, 2004, showed little change from the previous study. That scan was reported, as follows: The ventricles appear symmetrical and midline. There is no mass effect. There is mild prominence of the falx which is not as prominent when compared to the prior study and I suspect is within normal limits for this patient. There is poor gray/white matter differentiation which may be partly due to the patient's age. Edema cannot be completely excluded and correlation with MRI is suggested. There is questionable area of low attenuation in the left occipital region, again which is nonspecific. No new hemorrhage identified. IMPRESSION: Overall little change since the prior study. There is mild prominence of the falx, however, it is not as prominent when compared to the prior study and this may be within normal limits for this patient. Poor gray/white matter differentiation which may be partly due to patient's age and degree of brain myelination. Areas of low attenuation in the left occipital region. Further evaluation with MRI is suggested. No MRI evaluation was performed. On August 23, 2004, Sam was transferred to the Neonatal Intensive Care Unit at St. Joseph's Women's Hospital for fundoplication and G-tube insertion. The Transfer Note documented the following pertinent findings: Physical Exam Upon Discharge . . . General: sleeping, NAD, not arousable, large infant . . . Lungs: coarse breath sounds bilat, poor air entry . . . Neuro: -moro, -gag, sluggish papillary reflex, responds to touch, -spontaneous movement, -spontaneous eye opening Skin: -rashes, -jaundice . . . Respiratory: Pt had respiratory distress upon delivery and was intubated at Helen Ellis prior to transfer. Initial ABG showed pH 7.23. Pt was extubated to CPAP on DOL 1. Pt was weaned to RA by DOL 5 but due to aspiration pneumonia, pt was placed back on CPAP for 3 days on DOL 11. Pt has been weaned to RA and is currently stable with oxygen saturations 88-100% on RA. Pt requires frequent suctioning and repositioning to maintain his airway. CXR performed on DOL 18 showed significant improvement in pneumonia . . . GI: Pt was noted to have increased tracheal secretions after feeds were increased to 15 ml q 3 hours which was suggestive of reflux. Pt was also noted to have aspiration pneumonia on DOL 11 therefore GI was consulted for GERD and swallowing workup. A pH probe showed significant GERD, gastric emptying study showed dysmotility and severe reflux. Swallowing study showed no[] oral pharyngeal movement with feeds suggesting inability to take po feeds. It was discussed with the family and GI to plan for a Nissen Fundoplication with G/Tube placement at St. Joseph's Hospital by Dr. Martinez . . . Neurologic: . . . Pt. has continued to have significant neurological damage without improvement since initial admission . . . . The fundoplication and G-tube insertion occurred at St. Joseph's Women's Hospital on August 25, 2004. Otherwise, Sam's hospital course was summarized in his Discharge Summary (of September 2, 2004), as follows: Neurology: Admission EEG did not show evidence of seizure activity. Phenobarbital had been discontinued at Tampa General Hospital. The infant is hypertonic and has no gag or apparent swallow. He has significant encephalopathic changes consistent with a hypoxic ischemic insult. Occupational Therapy and Physical Therapy were consulted for evaluation. They recommended hand splints. Pediatric Neurologist had been following this infant's care at Tampa General Hospital. They will resume care when he gets back there. Respiratory: Sam has occasional desaturations which clear with suctioning of the oropharynx and nasopharynx. He does not appear able to handle his oral secretions. There is no current plan for tracheostomy to aid in the management after he goes home. This will be re-evaluated at Tampa General Hospital. Sam's subsequent medical care Sam was readmitted to Tampa General Hospital on September 2, 2004, and discharged to his parent's care on September 8, 2004. Physical examination on discharge noted: General: awake, no acute distress HEENT: NCAT, AFOSF, eyes deviated upward with moving eye movements * * * Lungs: coarse transmitted upper airway sounds bilaterally, good air movement Abdomen: soft NT/ND, G-tube well-healed, abdominal incision well-healed * * * Extremities: decreased range of motion throughout Neuro: increased tone in all extremities, severe head lag, no gag reflex or papillary reflex Skin: no rashes or jaundice Diagnoses included perinatal asphyxia/severe hypoxic-ischemic encephalopathy, and severe gastroesophageal reflux with dysmotility, status post (s/p) fundoplication and G-tube. On November 27, 2004, Sam, aged 4 months, was admitted to Mease Countryside Hospital because of an episode of apnea (for 50 seconds) and acute bronchiolitis, and transferred the same day to All Children's Hospital for further management. While at All Children's Hospital, tracheostomy was performed because of inability to swallow and for better airway management. CT of the brain on November 27, 2004, was reported, as follows: IMPRESSION: Bilateral symmetric mild dilatation of the lateral ventricles. Moderate dilatation of the third ventricle. Probable bilateral symmetric thalamic calcifications. Bilateral opaque mastoid air cells. Findings: There is a mild dilatation of both right and left lateral ventricles. This lateral ventricular dilatation is fairly symmetric and greatest in the frontal horns and anterior bodies of the lateral ventricles. Occipital horns and temporal horns are nor [sic] definitely abnormally dilated. There is a mild prominence of the temporal tips. There is moderate dilatation of the third ventricle. There is probable bilateral thalamic calcification which is symmetric. The differential of basal ganglial calcification is extensive. Brain radiodensity is otherwise unremarkable. On November 28, 2004, an EEG study was done, and interpreted by Joseph Casadonte, M.D., a physician board- certified in neurology, with special competence in child neurology, as follows: Impression: Markedly abnormal EEG recording, significance level III: Generalized slowing and disorganization of the background. Increase discontinuity for age. Hemispheric asymmetry. Multifocal spike and sharp waves in locations as enumerated above. Clinical Correlation: This EEG is consistent with this child's history of hypoxic ischemic encephalopathy. It shows a pattern consistent with severe bilateral cerebral dysfunction. It also shows several areas of potential epileptogenicity. During the study, the child had several clinical events characterized as posturing. These events were not associated with any epileptiform discharges, suggesting that they are not epileptic in origin. (Stipulated Medical Composite, Book 4 of 5, p. 2853). Sam was discharged from All Children's Hospital on December 13, 2004, with a noted history of hypoxic-ischemic encephalomathy, gastroesophageal reflux disease, gastrotomy tube and Nissen fundoplication, and upper airway obstruction, now status post tracheostomy, and tracheitis (inflammation of the traches), treated. Sam remains with a tracheostomy and G-tube (feeding tube) today. At the request of Sam's pediatrician, he was readmitted to All Children's Hospital on December 30, 2004, for an EEG and consultation with Dr. Casadonte. Dr. Casadonte reported the results of his consultation, as follows: REASON FOR CONSULTATION: Performed at the request of the Florida Pediatric Service. The child is 5 months old and has severe static encephalopathy secondary to hypoxic ischemic encephalopathy. Has intercurrent illness prompting admission (tracheitis). He has no independent function. He is undergoing hyperbaric treatment. He has episodes of irregular movements, rule out seizures. He was placed on continuous bedside electroencephalogram monitoring last evening.[6] * * * The child has no independent function. He does not focus or tract. He does not reach or transfer. He has dysconjugate eyes with poorly reactive pupils. His face is symmetric. He has increased tone in all his extremities. The child underwent video electroencephalogram. He has episodes of tonic stiffening. At times these episodes are associated with attenuation of the background. At times this attenuation stays for up to several minutes. At times it occurs without associated clinical change. Sometimes he has similar clinical movements, without attenuation of the background. Background electroencephalogram is abnormal with disorganization and multifocal sharp waves. IMPRESSION: Static encephalopathy with profound mental retardation. Electroencephalogram that shows periods of abrupt attenuation, sometimes associated with a tonic stiffening. At times, the child has similar episodes of stiffening without clear associated change, and sometimes he has several spasmic-like movements that are tonic in nature. I spoke with mother at length about the above findings. Expressed to her that some of his findings would be consistent with epileptic spasms. These are mostly tonic. However, I spoke to her at length because of his severe brain injury. The electrical clinical association is inconsistent. Subsequently, Sam was seen by Paul Kornberg, M.D., a pediatric rehabilitation specialist, Radhakrishna Rao, M.D., a pediatric neurologist, Steven Goss, M.D., a pediatric ophthalmologist, and Magda Barsoum-Homsy, M.D., a pediatric ophthalmologist. Dr. Kornberg reported the results of his September 6, 2005, consultation, as follows: REVIEW OF SYSTEMS: He is in good general health. The mother reports he has stiffness in his upper and lower extremities, particularly at his elbows though she reports no difficulty with daily care . . . . His hearing was tested at Tampa General Hospital and was reportedly okay. He has a tracheostomy . . . . History of hypoxic encephalopathy with spastic quadriparesis Visual function is unclear, and the mother questions whether he may inconsistently track his lobule . . . . He is NPO and receives all nutrition by his gastrostomy tube, primarily breast milk and also water. The mother reports no consistent responses to sound . . . . FUNCTIONAL/DEVELOPMENTAL HISTORY: Samuel is dependent for all functional mobility and self-care skills. He is unable to roll or sit independently when placed in prone though his mother reports he is able to turn his head a bit but he does not consistently localize to sound. Communication is only by crying and facial expression . . . . PHYSICAL EXAMINATION: * * * NEUROLOGIC: Facies are symmetric. Tongue is midline. Gaze is dysconjugate. Tone is increased in the extremities, upper greater than lower. Spasticity is noted. Modified Ashworth score of 1+ at the hip adductors and 2 at the elbow extensors, pectoralis major, ankle plantar flexors, as well as the finger flexors. Strength could not be assessed as there was no purposeful movement. Sensation was also difficult to assess. There was no consistent cortical recognition of noxious stimulus. Deep tendon reflexes are brisk throughout with overflow. There was no clonus elicited. COGNITIVE: The patient did not smile or respond to visual threat. No tracking was appreciated. Head control was poor. ASSESSMENT: Spastic quadriparetic cerebral palsy. Global profound development delay. Contractures. Dysphagia status post gastrostomy. Gastroesophageal reflux disease status post partial fundoplication. Tracheostomy dependent. * * * Spasticity. Suspect cortical visual impairment. RECOMMENDATIONS: Continue physical therapy to maximize range of motion, positioning, and attempt to maximize gross developmental skills. Continue occupational therapy for upper extremity range of motion, splinting, as well as adaptive equipment. * * * 6. A prescription was provided for vision therapy services through Early Intervention. In an examination on March 16, 2007, Dr. Kornberg noted "profound impairment" of Sam's cognitive function. (Stipulated Medical Composite, Book 4 of 5, p. 2987). Dr. Rao reported the results of his September 12, 2005, neurological consultation, as follows: Neurological Examination: Mental Status Examination: Patient is alert and awake. Patient has dyscongugait gaits. Tongue is in midline. Limited examination. Patient tried to turn the eyes towards the sound bilaterally. Motor Examination: The tone increased in all the extremities both upper and lower. Spasticity is noted. Sensory Examination: Limited examination but appreciates touch. Deep Tendon Reflex: Brisk bilaterally. There is no clonus elicited. Clinical Impression: It is found global developmental [delay], spasticquadraperetic cerebral palsy, GI reflux as per the history with the G-tube in placed and has a history of partial fundoplication. Patient also has tract in place. Possible visual impairment. Patient also has hypoxic encephalopathy. Recommendations: We will obtain CAT scan of brain without contrast to document the extent of injury and further evaluation of intracranial pathology. We are also requesting for a routine EEG to be done . . . . The results of the CT scan (completed October 18, 2005) were reported, as follows: There is moderate ventriculomegaly probably due to under development. There is mild periventricular leukomalacia in both frontal and parietal lobes. The middle cerebral peduncles (upper mid brain) are small and this may be due to Wallerian degeneration from the reduced white matter above. IMPRESSION: MODERATE VENTRICULOMEGALY WITH THINNING OF THE WHITE MATTER AND MILD PERIVENTRICULAR LEUKOMALACIA. EVIDENCE OF WALLERIAN DEGENERATION WITHIN THE MID BRAIN DUE TO THE WHITE MATTER DISEASE ABOVE. NONSPECIFIC FAINT CALCIFICATIONS IN THE THALAMIC NUCLEI BILATERALLY. The EEG did not reveal any definite seizure activities, but did show attenuated background and slow wave activities suggesting underlying encephalopathic change. (Stipulated Medical Composite, Book 1 of 5, pp. 714-716, 748, and 797). Dr. Goss reported the results of his October 12, 2005, ophthalmology consultation, as follows: I saw your patient Samuel Anderson in the office on 10/12/05 . . . . There is a question as to how much he can or cannot see. On exam he was awake. He showed occasional posturing movements. He had occasional horizontal eye movements which did not appear to be related to external visual light stimulus. With a bright light into the eye, he did not show any significant blink reflex at all. The pupils were approximately 4ml ou and were sluggish to bright light. There were very occasional horizontal spontaneous roving movements, for the most part the eyes were relatively still and there was not a continuous horizontal nystagmus. The anterior segment showed conjunctiva to be quiet bilaterally. The left greater than right cornea showed some punctate changes in the epithelium with dryness particularly on the left. The anterior chamber was otherwise unremarkable, lens clear and fundus with DFE showed bilaterally the optic discs to be somewhat pale, diffusely. The retina was unremarkable. In terms of refractive error there may be a high myopia. Samuel has impaired visual responsiveness. This appears to be probably for the most part in the basis of central nervous system damage in the occipital cortex or subcortical "local areas." I say this because there is no spontaneous continuous nystagmus. However, there are probably is in addition an anterior pathway disease as well in relation to optic atrophy because of the pupils not responding in a normal manner as well. It is certainly possible this could be related to diffuse retinal inoxic injury as well. The only way to verify that by ERG. He has in addition as indicated in the above exam a bilateral corneal changes related to impaired blinking. I had a lengthy discussion with mom concerning the issues involved. I suggested we use topical drops, Refresh or Refresh Plus several times a day to keep the corneas moist. In regards to vision therapy there is no known experimentally proven ethicacious method for improving vision in these children, certainly visual stimulation may have a role, but its exact role is currently not known . . . . (Stipulated Medical Composite, Book 4 of 5, p. 2949). Dr. Barsoum-Hornsy reported the results of her February 22, 2007, ophthalmology consultation, as follows: EXAMINATION: Today shows some reaction to light in both eyes. Presence of severe Bell's phenomenon with both eyes turned up. External segment shows conjunctival congestion with superficial vascularization of the cornea of the right eye inferiorly at around the 3 - 6 o'clock position, left eye at around the 7 o'clock position. Corneal sensation is normal in both eyes. Iris and lens were normal. Fundus examination shows partial optic atrophy with pale optic nerve right and left eye. DIAGNOSIS: Partial optic atrophy, dry eye syndrome. (Stipulated Medical Composite, Book 5 of 5, p. 4113). The dispute regarding compensability A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth." § 766.31(1), Fla. Stat. See also § 766.309(1), Fla. Stat. Pertinent to this case, the Plan defines "birth- related neurological injury" to mean an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat.7 Here, there is no dispute that obstetrical services were delivered by a participating physician at birth. There is likewise no dispute that Sam 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 the hospital, which rendered him permanently and substantially physically impaired. Rather, the only dispute regarding compensability is whether the brain injury Sam suffered also rendered him permanently and substantially mentally impaired. As to that issue, Petitioners were of the view that Sam was not permanently and substantially mentally impaired, while Respondent and Intervenors were of a contrary opinion. Sam's mental condition To resolve whether Sam was permanently and substantially mentally impaired, the parties offered the medical records related to Sam's birth and subsequent development. Additionally, Respondent and Intervenor Hilderbrandt each offered the testimony of a pediatric neurologist to support their view that Sam was permanently and substantially mentally impaired, and Petitioners offered the testimony of Sam's current neurologist to support their position that Sam was not so impaired. Finally, Petitioners offered the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother to demonstrate that Sam has developed an alternative means of communicating with others by use of his tongue, and that this ability, coupled with his demonstrated ability to follow instructions, interact with his family and healthcare providers, and perform repeatable tasks in his various therapies, demonstrate Sam is not permanently and substantially mentally impaired. Called on behalf of Respondent was Raymond Fernandez, M.D., a physician board-certified in pediatrics (since 1973), and neurology with special competence in child neurology (since 1980), who has practiced pediatric neurology or held teaching positions at the University of South Florida (USF), College of Medicine, since 1976. Currently, and since 1993, Dr. Fernandez has practiced pediatric neurology with Pediatric Neurology Associates, P.A., in the Tampa Bay area, and since 1994, has held the position of Clinical Professor, Department of Pediatrics, USF College of Medicine. (Exhibit 2 (Dr. Fernandez' Curriculum Vitae (CV)) to Dr. Fernandez' deposition (Exhibit 60)). At NICA's request, Dr. Fernandez performed a neurological examination of Sam on November 15, 2007. The results of that examination were documented in Dr. Fernandez' written report (Exhibit 75), and addressed in Dr. Fernandez' deposition (Exhibit 60). Dr. Fernandez' report begins by noting Sam's birth history; admissions to Tampa General Hospital, St. Joseph's Hospital, and All Children's Hospital; and examinations by Doctors Casadonte, Rao, and Kornberg, as heretofore discussed. With regard to the CT scan ordered by Dr. Rao, and reported October 18, 2005, Dr. Fernandez noted it "showed a pattern consistent with remote and diffuse hypoxic ischemic injury with ventricular enlargement, periventricular leukomalacia, thalamic injury, and [W]allerian degeneration within the midbrain." Dr. Fernandez then proceeded to note Sam's developmental history, as related to him by Mrs. Anderson, the results of his examination, and his impressions, as follows: Mrs. Anderson stated that Samuel's developmental status "gets a little better all the time." He becomes more vocal, but he does not babble nor does he speak. Visual tracking is improving, and he is blinking more, per Mrs. Anderson's description. Samuel's hearing is judged to be good, and he responds more to sounds. He responds differently to family member's voices. He cries and grimaces when he is hungry, when his diapers are wet or soiled, and when he requires suctioning of his airway. At times, when upset, he might stiffen "like having a tantrum." Samuel does not smile or laugh, but Mrs. Anderson knows when he is content by his facial expression and by his pattern of breathing characterized by a sound that resembles a sigh. He has some vision and will follow light and moving objects, although with some delay. Samuel does not reach for objects. He sleeps on his back and tends to roll over onto his side when on an incline of about 45 degrees. When flat on the floor, he cannot roll over. He moves his legs spontaneously (left more than right). Mrs. Anderson stated that Samuel is able to roll from his abdomen to his back, but not vice versa, although he does not do this very often. He does not crawl. Head control is limited. Mrs. Anderson feels that on occasion Samuel responds to what is being said to him by either becoming upset or content, as evidenced by different facial expressions and breathing patterns. PHYSICAL EXAMINATION: On November 15, 2007, weight 24 pounds (average for 15 month old), length 90 cm (average for a 2-1/2 year old), head circumference 46.2 cm (average for a 1 year old).[8] . . . There was flattening of the right posterior quadrant of the skull. There was no ridging at suture lines. Eyes were open, but there was no visual tracking. The right pupil was 2-3 mm in diameter and incompletely reactive to light. The left pupil was about 4 mm in diameter and nonreactive to light. I was unable to adequately visualize his fundi in detail, but the optic nerves appeared to be pale.[9] Samuel has a disconjugate gaze with outward deviation of the eyes. The left eye moved fully horizontally with dolls head maneuver. The right eye abducted fully, but adducted only to the midline. There was upward eye deviation intermittently. Corneal reflexes were absent, and he did not blink. There was limited facial movement. Samuel's eyes tended to close spontaneously and slowly, but he did not actively blink at regular intervals. He did not turn toward sound. Gag reflex was absent. There was pooling of secretions and profuse drooling, requiring frequent suctioning. He did not swallow. Muscle tone was increased in all limbs (arms greater than legs and left side greater than right side). There was poor head control characterized by complete head lag when pulled to the sitting position. He was unable to sit. There was very little spontaneous movement. He did not reach. He was unable to roll over. There were no purposeful movements in response to stimulation. He consistently elevated his left leg in response to tactile stimulation over the left side of the forehead and at times in response to tactile stimulation over the left side of his chest. This occurred repeatedly and in stereotypic fashion, resembling reflex movement. Reflexes were brisk throughout, and there was clonus in both ankles. With respect to mental status, Samuel fluctuated from apparent wakefulness characterized by eyes being open and periods of apparent drowsiness or sleep characterized by slow gradual closure of the eyes. He made no sounds other than noisy breathing. I was not able to elicit any purposeful or meaningful response from Samuel. He did not track visually or respond to sounds or when his name was called. He did not smile or cry nor did he become anxious during the examination. Samuel required airway suctioning frequently, but maintained good color and regular respirations. The tracheostomy site was clean. His eyes were open much of the time, and I did not see him blink. Eyes were moist without obvious corneal clouding or corneal ulceration. The left eye was red, but there was no mucoid or purulent discharge. A PE tube was present in the right ear, but one could not be seen in the left ear. There was no heart murmur. Lungs were clear with only coarse transmitted upper airway sounds bilaterally. There were no abdominal masses. The G-tube site was clean. The spine was fairly straight. Arms were tight proximally and distally with some joint restriction. There were no dysmorphic features. There were no skin abnormalities of neurological significance. IMPRESSION: Based on history, clinical findings, and brain imaging. Samuel Anderson is substantially mentally and physically impaired. Neurological and developmental findings are due to the severe anoxic encephalopathy (oxygen deprivation) sustained during labor, resulting from uterine rupture. Based on the severity of Samuel's anoxic encephalopathy and current findings, he will always be totally dependent on others for his care. There is virtually no chance that there will be significant improvement in physical and mental neurological function. In his deposition, Dr. Fernandez reaffirmed his opinion that, considering Sam's "history, findings on examination, and brain imaging, all together," Sam was permanently and substantially mentally impaired. (Exhibit 60, p. 14). In so concluding, Dr. Fernandez noted Sam's history, as evidenced by the medical records heretofore discussed;10 that on examination he was unable to elicit any meaningful response from Sam; and record evidence of severe brain injury, with burst suppression on EEG, indicative of diffuse and severe brain injury; microcephaly, strong evidence of impaired brain growth; and evidence on brain imaging (CT scan) of diffuse brain atrophy and ventricular enlargement.11 Testifying on behalf of Intervenor Hilderbrandt was Michael Duchowny, M.D., a physician board-certified in pediatrics (since 1976), neurology with special competence in child neurology (since 1979), and clinical neurophysiology (since 1982). (Intervenor Hilderbrandt Exhibit 1, Dr. Duchowny's CV). Dr. Duchowny has practiced pediatric neurology since 1977, and has been on the faculty in the Department of Neurology at Miami Children's Hospital since 1980. Currently, Dr. Duchowny is a senior staff attending in neurology at Miami Children's Hospital, and directs the neurological training programs and the clinical neurophysiology fellowship program. He holds an appointment as a professor of neurology and pediatrics at the University of Miami Miller School of Medicine. Approximately 70 percent of Dr. Duchowny's time is spent in direct patient care, both inpatient and outpatient settings, including covering intensive care units and the emergency department for consultations. (Tr., pp. 180-183). At the request of Intervenor Hilderbrandt, Dr. Duchowny reviewed the medical records associated with Sam's birth and subsequent development, including reports of neurologic and other evaluations by Dr. Fernandez and Dr. Kornberg, as well as the results of neuro-imaging studies. Based on that review, as well as the review of pictures of various neuro-imaging studies, discussed infra, Dr. Duchowny was of the opinion that Sam sustained a permanent and substantial mental, as well as physical impairment. In so concluding, Dr. Duchowny noted that four pediatric neurologists had an opportunity to examine Sam, together with a pediatric rehabilitation specialist, pediatric ophthalmologist, and nurse practitioner, and their reports were all consistent with bilateral brain damage, with severe global delay, mental and motor. Dr. Duchowny also reviewed various diagnostic studies, including pictures of the CT films of November 27, 2004, and October 18, 2005,12 which he concluded evidenced abnormality consistent with permanent and substantially mental and physical impairment. In so concluding, Dr. Duchowny noted the scans were significant for severe bilateral, superficial and deep brain damage, with ventricles abnormally enlarged due to the destruction of surrounding brain tissue; deep atrophy and superficial atrophy of the cortex and underlying white matter; and scarring of the thalami, abnormalities inconsistent with normal mental, as well as physical function. Testifying on behalf of Petitioners was Sam's current neurologist William Hammesfahr, M.D. Dr. Hammesfahr received his M.D. degree in 1982, completed his neurology training in 1988, and entered private practice in St. Petersburg, Florida, in 1988. He has been board-certified in neurology and pain management since 1990. (Exhibit 1 (Dr. Hammesfahr's CV) to Exhibit 64). Dr. Hammesfahr has seen Sam on seven occasions, starting on February 2, 2007, for his "static vascular encephalopathy."13 According to Dr. Hammesfahr's records, Sam was initially evaluated on February 2, 2007, and on February 8, 2007, he was started on "nitrobid paste for its CNS [central nervous system] vasodilating properties," that resulted in improvement in swallowing and calmer breathing.14 On March 1, 2007, Dr. Hammesfahr noted Sam's breathing rate was improving, his spasticity had improved, and he was sleeping better. (Exhibit 64, pp. 32 and 33). At the June 3, 2007, office visit, Dr. Hammesfahr noted further improvement, with "developing motor skill ability and coordinating muscle activity." (Exhibit 64, p. 36). For the September 13, 2007, visit, Dr. Hammesfahr's office notes include the following, as having been reported to him (most likely by Sam's mother): Sam is doing much better. He is recognizing and following commands with his therapist, he understands language, he needs less suctioning than before and the family feels he is much more aware. (Exhibit 64, p. 46). At Sam's November 26, 2007, visit, Dr. Hammesfahr noted more voluntary motion, and at his last visit in March 2008, Dr. Hammesfahr testified that Sam was "a little more alert, . . . a little bit better trunk control, head control, tends to focus on his surroundings a bit more each [visit]." (Exhibit 64, pp. 55 and 57). Based on his evaluation of Sam, as well as his limited review of Sam's history and the results of his CT scans, as reported by the radiologist, Dr. Hammesfahr expressed concern that "what we're really dealing with is a child who's essentially locked in at this point." (Exhibit 64, p. 59). Dr. Hammesfahr concluded, based on his review of CT scan reports, that the reported findings did not correlate with Sam's physical disabilities, and that Sam's injury is probably not an injury to his brain but, rather, an injury to his brain stem. Consequently, Dr. Hammesfahr was of the opinion that Sam could have very good cognitive ability, but little or no physical ability to express it.15 (Exhibit 64, pp. 59-61). Notably, although Dr. Hammesfahr has observed some improvement in Sam's physical function, he shares the view of others that Sam is permanently and substantially physically impaired. Moreover, Dr. Hammesfahr does not foreclose the likelihood that Sam may ultimately be shown to be permanently and substantially mentally impaired. Rather, he articulates his opinion, as follows: I don't think you can say that he is -- While I believe that there's probably going to be some degree of permanent impairment to some degree, I don't think that you can make any kind of predictions of the future right now for him. I think, if anything, the evidence should be weighted in his favor that he's got a good chance of significant cognitive abilities in the future. (Exhibit 64, pp. 7 and 8). It is also notable that in formulating his opinions, Dr. Hammesfahr relied on the CT reports, and did not review the films or pictures of the films, as Doctors Fernandez and Duchowny did. Finally, it is worthy of note that Sam was never shown to have communicated with Dr. Hammesfahr by tongue movement and that what communication did occur appeared more an emotional response, than a reflection of a higher level of cognitive function.16 To further support their contention that Sam was not permanently and substantially mentally impaired, Petitioners offered the testimony of Sam's occupational therapist (Laura Francis), vision therapy teacher (Barbara Czarnopy), chiropractor (Daniel Towle, D.C.), home health nurse (Jennifer Harris, LPN), parents, and grandmother (Nancy Judge). In the experience of Ms. Francis, Sam would indicate he wanted to do an activity by thrusting his tongue to indicate yes, and not moving this tongue to indicate no. Other ways Sam responded or communicated were described by Ms. Francis, as follows: . . . Well, if he doesn't like something he'll cry or he'll turn colors. He gets like this purplish look to his face if he's mad at you or he'll scrunch his face if he's mad at you. He'll stiffen up if he's mad at you. And then when he's not mad at you and he likes what he's doing he's relaxed and, you know, yeah, he's more relaxed and just, not say easygoing, but, you know. (Exhibit 63, p. 15). Ms. Francis also noted that during the course of her occupational therapy with Sam she introduced a number of activities to improve his physical and sensory needs, including cause/effect toys. With regard to those toys, if Sam was familiar with it, Ms. Francis observed he could activate it on a regular basis, albeit with assistance (i.e., holding it in front of him). (Exhibit 63, pp. 10 and 23). Ms. Czarnopy, Sam's vision therapy teacher, is a homebound teacher of the visually impaired, is employed by the Pasco County School System, and has provided services for Sam once a week (Mondays, 12:00-1:00 p.m.) since August 2006. Ms. Czarnopy, like Ms. Francis, noted that Sam thrusts his tongue to indicate yes, and makes no movement to indicate no. Ms. Czarnopy also uses cause/effect toys during her sessions, to improve eye-hand coordination. The cause/effect toys Ms. Czarnopy uses, and has used for a year or longer, are designed for children 6 months to 18 months of age. According to Ms. Czarnopy, every time she demonstrates a new toy and every time she reintroduces the toy, she places Sam's hand on the lever to show him how to do it, and that he regularly activates the toy. (Tr., 129, 147, and 148). However, Ms. Czarnopy also agreed that under the Pasco County Schools ESE Program guidelines Sam is considered "profoundly mentally handicapped"17; that because of his injury Sam has suffered permanent mental impairment, although she declined to answer whether it was substantial18; that Sam's social and vocational development have been significantly impaired; and that, regardless of the degree of any cognitive impairment, Sam will, given his physical impairment, require substantial accommodation to exercise any cognitive functions he has. (Tr., pp. 155-157, 164, 165, and 169). Dr. Towle, a chiropractic physician, has been seeing Sam since April 2007, on a once-a-week basis, with the aim of providing some improvement to his physical function. According to Dr. Towle, Sam is "very aware of his surroundings," and "cooperate[s]" during therapy sessions. (Tr., pp. 21 and 25). As for his ability to express his needs, Dr. Towle was asked the following questions and gave the following responses: Q. Does Sam -- in your experience with his language that you have learned, does he have a way of telling you yes? A. Yeah. Well, he'll curl forward. Then there are times where -- it sounds like one of my cats -- he'll stick his tongue out at me. * * * Q. All right. Now, you said that Sam has this tongue thrust? A. Uh-huh. Q. What is the tongue thrust for? A. The nearest example I could give you would be a yes or a no. It would be -- no. I'll just leave it as a yes or no. You know, when it pops out -- I'm sorry, when his tongue sticks out, it's a yes. When he clinches his fists and throws them back, it means no. So, you know, it's kind of just paying attention to details. Q. Meaning as a healthcare provider paying attention to details? A. Yeah . . . . (Exhibit 68, pp. 23, 27). However, with regard to Sam's mental function, Dr. Towle felt unqualified to express an opinion, and declined to do so. (Exhibit 68, p. 28). Mrs. Harris, Sam's home health nurse for about 1 1/2 years, when asked whether Sam was "responsive" to her answered "yes." (Exhibit 66, pp. 9 and 10). In explaining how Sam was "responsive," Mrs. Harris testified: Q. . . . What do you mean by that when you express -- A. Him being responsive? Q. Sure. A. He was -- of course, during my care, I was there for day shift, and in the afternoons, when he went down for his nap, there would be times when I would put him in his crib, and he seemed extremely unhappy and would scream and cry until I would pick him up, at which point he would immediately be soothed. There were times when he would -- if I was singing to him, he would watch me or watch me walk across the room to get something, and that's, you know -- (Exhibit 66, p. 10). From Sam's grandmother (Nancy Judge), we learn that Sam will make some choices (i.e., when asked if he would like something) by thrusting his tongue for yes, and not thrusting for no; that Sam will likewise show a preference for a color, when asked "[d]o you like this color," by thrusting or not thrusting his tongue, but does not know colors; and that Sam was taught the tongue thrusting technique by Laura, his occupational therapist. (Exhibit 62, pp. 2, 5, 6, 21). We also learn that when Sam is angry or people do not pay him attention, Sam will display displeasure by "a really angry face and . . . huffing and puffing and crying and screaming." (Exhibit 62, pp. 7 and 20). From Sam's parents, we hear similarly regarding Sam's use of tongue thrusts, and his expression of anger or disappointment. (Tr., pp. 43-58); 101-104). The medical records and the testimony of the parties' experts (Doctors Fernandez, Duchowny, and Hammesfahr), have been thoroughly reviewed. Having done so, it must be resolved that among the physicians who addressed the likelihood that Sam was substantially mentally impaired, Doctors Fernandez and Duchowny were the more qualified to address the issue, their testimony was the more candid and compelling, and their testimony was most consistent with the medical records and the observations of other physicians who have treated Sam. Consideration has also been given to the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother regarding Sam's ability to communicate, to follow instructions and perform repeatable tasks. However, such proof was lacking in substance, and insufficient to outweigh the credible testimony of Doctors Fernandez and Duchowny, as well as the other evidence of record. Moreover, and found credible, were the observations of Doctors Fernandez and Duchowny, that if Sam's activities were indeed a reflection of a higher intellect, as opposed to a rudimentary or emotional response, they should be reproducible and objectively quantifiable on neurologic examination. (Exhibit 60, pp. 20 and 21; Tr., pp. 226 and 227). Notably, such proof has not been provided. Accordingly, it is resolved that, more likely than not, Sam is permanently and substantially mentally impaired, and the claim is compensable. The notice issue Apart from contesting compensability, Petitioners also sought an opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the health care providers. See Galen of Florida, 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 health care providers complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearing, 948 So. 2d 705, 717 (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."). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2004), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes (2004), 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[19] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so that they could furnish a copy of it to their obstetrical patients. (Exhibit 13). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provisions of the Plan, because it failed to "include a clear and concise explanation of a patient's rights and limitations under the plan." However, Petitioners' contention, as well as the argument they advance to support it,20 has heretofore been rejected. Dianderas v. Florida Birth-Related Neurological Injury Compensation Association, 973 So. 2d 523, 527 (Fla. 5th DCA 2007)("[T]he NICA "Peace of Mind" brochure satisfies the legislative mandate of providing a 'clear and concise explanation of a patient's rights . . . and limitations . . . under the plan.'"). Findings related to the participating physicians and the notice issue Mrs. Anderson received her prenatal care at West Coast Medical Group, Inc., d/b/a West Coast Obstetrics & Gynecology (West Cost OB/GYN), a practice that was owned and operated by Helen Ellis Memorial Hospital.21 West Coast OB/GYN maintained offices in Tarpon Springs, which were staffed by A. Trent Williams, M.D., Michelle Golding, CNM, Amy Harrington, CNM, and Christine Hilderbrandt, CNM, and an office in New Port Richey, which was staffed by Matthew Conrad, M.D., and Teresa Conrad, M.D. Notably, Doctors Williams, Matthew Conrad, Teresa Conrad, and Certified Nurse Midwife (CNM) Hilderbrandt were employees of Helen Ellis Memorial Hospital.22 (Exhibits 71 and 59, p. 10). Mrs. Anderson was seen at the Tarpon Springs office. Pertinent to the notice issue, the parties have stipulated that at all times material hereto Matthew Conrad, M.D., Teresa Conrad, M.D., and A. Trent Williams, M.D., were participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan. Moreover, the proof otherwise demonstrates that the fee for their participation for calendar years 2003 and 2004 was paid, and they were provided a certificate of their participation by NICA. (Pre-Hearing Stipulation, Admitted Facts; Exhibits 4 and 5). Moreover, while her status was not stipulated to, the proof demonstrates that the fee for CNM Hilderbrandt for participation for calendar years 2003 and 2004 was paid, and she was provided a certificate of her participation by NICA. (Exhibits 2, 3, and 4). Whether CNM Hilderbrandt otherwise met the requirements to qualify as a participating physician, will be addressed infra. On December 12, 2003, Mrs. Anderson presented to the Tarpon Springs office of West Coast OB/GYN for her initial prenatal visit. At the time, consistent with established practice, Mrs. Anderson was provided a number of forms to complete and sign, including a New Patient Registration Information Form, Consent to Treat, Assignment of Benefits, and Notice to Obstetrics Patients Regarding NICA (to acknowledge receipt of the NICA brochure). The Notice of Obstetric Patient form provided: West Coast Obstetrics & Gynecology Notice to Obstetric Patients Regarding NICA (see section 766.316, Florida Statutes) I have been furnished information by West Coast Obstetrics and Gynecology, prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that M. Conrad MD, T. Conrad MD, A. T. Williams MD, Michelle Golding, CNM, Amy Harrington CNM, and Christine Hilderbrandt CNM, are participating providers in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received a copy of the brochure by NICA. print patient name Patient social security number patient's signature date witness date (Exhibit 12). Mrs. Anderson signed and dated the form. Here, Mrs. Anderson acknowledged she signed the Notice to Obstetric Patient but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that the notice requirements of Section 766.316 have been met by Doctors Williams, Matthew Conrad, and Teresa Conrad, and by the certified nurse midwives (including CNM Hilderbrandt, if she were a participating physician, and required to give notice). Findings related to the hospital and notice On June 24, 2004, Mr. and Mrs. Anderson presented to Helen Ellis Memorial Hospital and pre-registered for Sam's delivery. There, the Andersons were interviewed by a registration clerk, who gathered certain demographic information (such as name, age, address, social security number, marital status, next of kin), employment information, insurance information, and delivery information (physician's name and expected due date), and entered it into a computer.23 The Andersons executed no documents at that time, and were not provided a NICA notice or a NICA brochure, although it was practicable to have done so. Regarding NICA notice, it was the hospital's policy when Mrs. Anderson pre-registered, as it is today, to only provide the NICA notice and a copy of the NICA brochure when the patient presented to the Women's Center (the eighth floor) in labor or with other pregnancy-related issues. (Exhibit 58, p. 21; Tr., 312). Apart from pre-registration, Mrs. Anderson did not present to the hospital until July 28, 2004. At 5:30 a.m., July 28, 2004, Mrs. Anderson presented to Helen Ellis Memorial Hospital complaining of irregular contractions for 24 hours, with increased intensity since 4:00 a.m. External fetal monitoring was applied, and revealed a fetal heart rate in the 140 beat per minute range, and vaginal examination revealed the cervix at fingertip to 1 centimeter, effacement thick, and the fetus high. Subsequent vaginal examinations at 6:15 a.m., and 7:45 a.m., were unchanged, nonstress test (NST) was reactive, and at 8:00 a.m., Mrs. Anderson was discharged home with a prescription for Ambien (a sleep aid) and instructions to rest. Diagnosis on discharge was false labor. Notably, when admitted on July 28, 2004, Mrs. Anderson executed (at 5:30 a.m.), a two-page form, that included a Consent to Treatment, and at some time thereafter, a NICA acknowledgment form (to acknowledge receipt of the NICA brochure). (Stipulated Medical Composite, Book 1 of 5, pp. 119 and 120). The NICA acknowledgment form provided: HELEN ELLIS MEMORIAL HOSPITAL Tarpon Springs, Florida I have been furnished information by Helen Ellis Memorial Hospital prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that Helen Ellis Memorial Hospital participates in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. I understand that for specifics on the program I can contact the Florida Birth-Related Neurological Injury Compensation Association (NICA) as described in the brochure prepared by NICA titled Peace of Mind for an Unexpected Problem. I further acknowledge that I have received a copy of the brochure. DATED this day of , (year) Patient's Signature Social Security Number (Exhibit 74). Mrs. Anderson signed the form, and entered her social security number. Here, Mrs. Anderson acknowledged she signed the NICA acknowledgment form, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure, as required by Section 766.316, Florida Statutes. However, whether such notice was efficacious will be addressed, infra. Following her discharge from Helen Ellis Memorial Hospital the morning of July 28, 2004, Mr. and Mrs. Anderson ate breakfast, and then returned to their house, where Mrs. Anderson took an Ambien and slept for the remainder of the day. During the night, Mrs. Anderson monitored her contractions, which continued as they had been, and spoke with either CNM Hilderbrandt or Golding, who advised her, since she was to be induced in a few days anyway, to return to the hospital and have the baby. (Tr., pp. 36 and 37). Mrs. Anderson returned to Helen Ellis Memorial Hospital at 3:30 a.m., July 29, 2004. At the time, vaginal examination revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high, and uterine contractions were noted as irregular (inconsistent with active labor). Mrs. Anderson executed a Consent to Treatment form at 4:20 a.m., and was admitted for observation, and at some time thereafter, Mrs. Anderson signed a NICA acknowledgment form (to acknowledge receipt of the NICA brochure), identical to the form she signed on July 28, 2004. Again, Mrs. Anderson acknowledged she signed the NICA acknowledgment form but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure. However, whether such notice was efficacious will be addressed, infra. Here, given the circumstances, including the inherent distractions associated with Mrs. Anderson's presentation on July 28, 2004, and July 29, 2004, as well as the lack of proof as to when NICA notice was provided and the circumstances under which it was provided, it cannot be resolved, with the requisite degree of certainly, that the giving of notice was efficacious. Nevertheless, were these the only contacts Mrs. Anderson had with the hospital, it would likely be concluded that it was not practicable to have given notice earlier. However, since Mrs. Anderson pre-registered for the delivery of Sam on June 24, 2004, and she was not provided a NICA notice or brochure, although it was practicable to have done so, it must be resolved on the facts of this case that the hospital failed to comply with the notice provisions of the Plan.24 The participating physician issue Under Subsection 766.314(4)(c), Florida Statutes, a certified nurse midwife may be deemed a "participating physician," under the following circumstances: . . . Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised by a participating physician who has paid the assessment required by this paragraph and paragraph (5)(a). Supervision for nurse midwives shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features . . . . To support the conclusion that CNM Hilderbrandt would be supervised by a participating physician, who would be easily available, Intervenor Hilderbrandt offered a Statement of Supervising Physician, signed by A. Trent Williams, M.D., and herself, on April 10, 2002, and April 9, 2002, respectively, which provided: A. Trent Williams, M.D., license #ME0065859, of 1501 S. Pinellas Avenue, Suite T, Tarpon Springs, FL 34689 maintains a primary supervisory relationship with Christine Hilderbrandt, ARNP-CNM, license #ARNP2729292, of the same address. All functions contained within the Practice Guidelines may be performed under general supervision. The statement further provided that: The following physicians also agree to perform in a supervisory capacity under the Practice Guidelines for the above-named ARNP-CNM when she administers to the needs of her patients within the Helen Ellis Memorial Hospital setting during their respective on-call rotations: That provision was signed by Dr. Matthew Conrad, Dr. Teresa Conrad, and Dr. S. Tatiana Goodwin (who was associated with the practice at that time). (Exhibit 7). To support the conclusion that there existed a "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," CNM Hilderbrandt presented a document titled "West Coast Obstetrics & Gynecology, Certified Nurse Midwife Protocol." The document was labeled "edit copy . . . a. t. williams," contained numerous handwritten revisions, questions, and edits, and was not signed or dated. CNM Hilderbrandt described the document as a draft she and Dr. Williams worked on; conceded it was not the final document, which she averred was in Dr. Williams' office; and explained she did not produce the final draft because she did not have it. (Tr., pp. 257-261). Notably, CNM Hilderbrandt made no showing of what efforts, if any, were made to secure the final document from Dr. Williams or West Coast OB/GYN, who were parties to these proceedings, or account for its unavailability. In addition, CNM Hilderbrandt offered testimony that she signed protocols each year, and relied on the office manager to file them with the State of Florida, Board of Nursing, as required by Chapter 464, Florida Statutes, and Florida Administrative Code Rule 64B9-4.010.25 (Exhibit 59, pp. 24-26; Tr., pp. 244 and 245). However, the proof established that no protocol regarding CNM Hilderbrandt was filed in 2002 or 2003, and an established protocol (as between Dr. Williams and CNM Hilderbrandt), that was filed with the Board of Nursing on April 13, 2004 (and dated April 1, 2004), was apparently destroyed, albeit prematurely given the Board of Nursing's four year retention policy. (Exhibit 9). Nevertheless, Florida Administrative Code Rule 64B9-4.010(3) requires that "[a]fter the termination of the relationship between the ARNP and the supervising professional, each party is responsible for ensuring that a copy of the protocol is maintained for future reference for a period of four years." Here, CNM Hilderbrandt did not produce any protocol because "I don't have them." (Tr., p. 257). Again, she did not explain their lack of availability, or what efforts, if any, were made to secure copies from Dr. Williams or West Coast OB/GYN. Given the proof, CNM Hilderbrandt demonstrated that she would be supervised by a participating physician, who would be easily available. However, given CNM Hilderbrandt's failure to offer the protocols she claimed were in place, the proof failed to establish that there existed "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," as required by Section 766.314(4)(c), Florida Statutes, and therefore failed to establish that CNM Hilderbrandt was a "participating physician" at the time of Sam's birth.26 Miscellaneous matters Apart from resolving whether the hospital and the "participating physicians" complied with the notice provisions of the Plan, Petitioners also requested that the administrative law judge resolve whether West Coast Medical Group, Inc., and Holly Maria Bauer, R.N. (a nurse who assisted during Mrs. Anderson's labor and delivery at Helen Ellis Memorial Hospital on July 29, 2004), complied with the notice provisions of the Plan. However, West Coast Medical Group, Inc., was not a hospital, and not required to contribute to the NICA program, and Nurse Bauer was not shown to have been eligible to participate, or to have elected to participate. Consequently, they had no obligation to give notice. § 766.316, Fla. Stat. ("Each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited . . . no-fault alternatives for birth-related neurological injuries.") Petitioners have also requested that the administrative law judge resolve whether the hospital, participating physicians, CNM Hilderbrandt, West Coast Medical Group, Inc., and Nurse Bauer are entitled to immunity under Section 766.303(2), Florida Statutes. (Petition for Determination of Availability of NICA Coverage, paragraphs 41 b and e; Prehearing Stipulation, page 2, Petitioners' Statement of the Nature of the Controversy). However, the jurisdiction of an administrative law judge is limited to whether the infant has sustained a birth-related neurological injury, whether obstetrical services were delivered by a participating physician at the birth, how much compensation is awardable, and, if raised, whether the notice provisions of the Plan were satisfied. § 766.309(1), Fla. Stat. Whether any person or entity is entitled to invoke the immunity from tort liability provided for in Subsection 766.303(2), Florida Statutes, is not within the jurisdiction of the administrative law judge to resolve. Depart v. Macri, 902 So. 2d 271 (Fla. 1st DCA 2005); Gugelmin v. Division of Administrative Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002). Consequently, these issues will not be addressed.
The Issue At issue is whether Christopher White-Maldonado, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Susanna Maldonado, is the natural mother and guardian of Christopher White-Maldonado, a minor. Christopher was born a live infant on January 1, 2000, at Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Christopher's birth was Virgil Davila, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the medical records and the results of a neurological examination by Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, demonstrate, and Petitioner agrees, that Christopher does not suffer from a substantial mental or physical impairment, much less a permanent and substantial mental and physical impairment, as required for coverage under the Plan.1 (Respondent's Exhibits 1-7, Transcript page 10 and 11). Consequently, the claim is not compensable, and it is unnecessary to resolve whether Christopher's impairments resulted from brain injury caused by birth trauma (oxygen deprivation or mechanical injury), as advocated by Petitioner, or whether they are developmentally based, as advocated by Respondent.
The Issue Whether Isabelle Dianderas, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Maribenny Dianderas and Arturo Dianderas are the natural parents and guardians of Isabelle Dianderas, a minor. Isabelle was born a live infant on October 8, 2002, at Florida Hospital, a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Isabelle's birth was Natasha M. Knight, 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. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. Here, the proof is compelling, and uncontroverted, that Isabelle suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered her permanently and substantially mentally and physically impaired. (Joint Exhibits 1-4; Transcript, pages 125-145). Consequently, the record demonstrated that Isabelle suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The notice issue While the claim qualifies for coverage under the Plan, Petitioners would prefer to pursue their civil remedies, and avoid a claim of Plan immunity by the healthcare providers in a civil action. Therefore, Petitioners have averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at Isabelle's birth, failed to comply with the notice provisions of the Plan. See Galen of Florida, 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 notice provisions of the Plan were satisfied.1 The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "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[2] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an 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. (Joint Exhibit 5). Pertinent to this case, the NICA brochure applicable to Mrs. Dianderas' prenatal care and Isabelle's birth provided: The birth of a baby is an exciting and happy time. You have every reason to expect that the birth will be normal and that both mother and child will go home healthy and happy. Unfortunately, despite the skill and dedication of doctors and hospitals, complications during birth sometimes occur. Perhaps the worst complication is one which results in damage to the newborn's nervous system - called a "neurological injury." Such an injury may be catastrophic, physically, financially and emotionally. In an effort to deal with this serious problem, the Florida Legislature, in 1988, passed a law which created a Plan that offers an alternative to lengthy malpractice litigation processes brought about when a child suffers a qualifying neurological injury at birth. The law created the Florida Birth-Related Neurological Injury Compensation Association (NICA). EXCLUSIVE REMEDY The law provides that awards under the Plan are exclusive. This means that if an injury is covered by the Plan, the child and its family are not entitled to compensation through malpractice lawsuits. CRITERIA AND COVERAGE Birth-related neurological injuries have been defined as an injury to the spinal cord or brain of a live-born infant weighing at least 2500 grams at birth. In the case of multiple gestation, the live birth weight is 2000 grams for each infant. The injury must have been caused by oxygen deprivation or mechanical injury, which occurred in the course of labor, delivery or resuscitation in the immediate post delivery period in a hospital. Only hospital births are covered. The injury must have rendered the infant permanently and substantially mentally and physically impaired. The legislation does not apply to genetic or congenital abnormalities. Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan. COMPENSATION Compensation may be provided for the following: Actual expenses for necessary and reasonable care, services, drugs, equipment, facilities and travel, excluding expenses that can be compensated by state or federal government or by private insurers. In addition, an award, not to exceed $100,000 to the infant's parents or guardians. Funeral expenses are authorized up to $1,500. Reasonable expenses for filing the claim, including attorney's fees. NICA is one of only two (2) such programs in the nation, and is devoted to managing a fund that provides compensation to parents whose child may suffer a qualifying birth-related neurological injury. The Plan takes the "No-Fault" approach for all parties involved. This means that no costly litigation is required and the parents of a child qualifying under the law who file a claim with the Division of Administrative Hearings may have all actual expenses for medical and hospital care paid by the Plan. You are eligible for this protection if your doctor is a participating physician in the NICA Plan. If your doctor is a participating physician, that means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA Plan. (Joint Exhibit 5). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provision of the Plan (which requires that the form "include a clear and concise explanation of a patient's rights and limitations under the plan"), because it failed to include an explanation of the civil remedies a patient would forego if she chose a participating provider. (Transcript, pages 11-13). However, neither Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997), the authority relied upon by Petitioners, nor the notice provision of the Plan, place such an obligation on NICA in the formulation of the brochure. In Galen, supra, the Court had for consideration the following question certified to be of great public importance: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS' INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? Id. at 308. In answer to the certified question, the Court held: . . . as 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. Id. at 309. The Court reasoned, as follows: Section 766.316 provides in pertinent part: Each hospital with a participating physician on its staff and each participating physician . . . under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof 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. Without exception the district courts of appeal that have addressed the issue have read section 766.316 to require pre-delivery notice . . . . We agree with the district courts that the only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in the plan. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the "no-fault alternative for birth-related neurological injuries" a reasonable time prior to delivery, when practicable. Our construction of the statute is supported by its legislative history. Florida's Birth-Related Neurological Injury Compensation Plan was proposed by the 1987 Academic Task Force for Review of the Insurance and Tort Systems. In its November 6, 1987 report, the Task Force recommended adoption of a no-fault compensation plan for birth-related neurological injuries similar to the then newly enacted Virginia plan (1987 Va. Acts Ch. 540). Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations 31 (Nov. 6, 1987)(hereinafter Task Force Report). However, the Task Force was concerned that the Virginia legislation did not contain a notice requirement and recommended that the Florida plan contain such a requirement. The Task Force believed that notice was necessary to ensure that the plan was fair to obstetrical patients1 and to shield the plan from constitutional challenge.2 The Task Force explained in its report: The Virginia statute does not require participating physicians and hospitals to give notice to obstetrical patients that they are participating in the limited no- fault alternative for birth-related neurological injuries. The Task Force recommends that health care providers who participate under this plan should be required to provide reasonable notice to patients of their participation. This notice requirement is justified on fairness grounds and arguably may be required in order to assure that the limited no fault alternative is constitutional. Task Force Report at 34 (emphasis added). Since Florida's NICA plan was the result of the Task Force's report, it is only logical to conclude that the plan's notice requirement was included in the Florida legislation as a result of this recommendation and therefore was intended to be a condition precedent to immunity under the plan. * * * Under our reading of the statute, in order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely manner. In those cases where it is not practicable to notify the patient prior to delivery, pre- delivery notice will not be required. Whether a health care provider was in a position to give a patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis . . . . Accordingly, we answer the certified question as explained herein and approve the decision under review. Id. at 309-311. 1 The Task Force obviously believed that because not all health care providers are required to participate in the NICA plan, fairness requires that the patient be made aware that she has limited her common law remedies by choosing a participating provider. 2 The Task Force also must have recognized that failure to require notice would open the plan up to constitutional attack. For example, the Braniffs argue that if pre- delivery notice is not a condition precedent to immunity under the plan, patients will be deprived of their common law remedies without due process. However, because of our resolution of the notice issue, we need not reach the merit of this procedural due process challenge. Notably, the Court was not asked to resolve, and did not resolve, whether the obligation to provide a form that "include[d] a clear and concise explanation of a patient's rights and limitations under the plan," required an explanation of the civil remedies a patient would forego if she chose a participating provider. Moreover, the unambiguous language the Legislature chose evidences no such intention. Rather, the Plan requires that the form "include a clear ['[f]ree from doubt or confusion']3 and concise ['[e]xpressing much in few words; succinct']4 explanation ['the process of making plain or comprehensible']5 of the patients' rights and limitations under the plan," and does not include an obligation to explain a patient's potential civil remedies at common law or otherwise. Rinella v. Abifaraj, 908 So. 2d 1126, 1127 (Fla. 1st DCA 2005)("Where the plain and ordinary meaning of statutory language is unambiguous, we cannot construe the statute in a manner that would extend, modify, or limit its express terms or its reasonable and obvious implications."); Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001)(quoting Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999))("[I]t is a basic principle of statutory construction that Courts 'are not at liberty to add words to statutes that are not placed there by the Legislature.'"); Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002)("When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words."); American Bankers Life Assurance Company of Florida v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)("Words of common usage should be construed in their plain and ordinary sense."). The brochure prepared by NICA satisfies the legislative mandate. Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 31 Fla. L. Weekly D8676 (Fla. 5th DCA March 24, 2006)("The ALJ properly recognized that NICA developed a pamphlet titled 'Peace of Mind for an Unexpected Problem.' The pamphlet contains a clear and concise explanation of a patient's rights and limitations under the NICA plan, as is required by the terms of the statute.")(petition for rehearing pending). Findings related to the participating physician and notice Mrs. Dianderas received her prenatal care at Loch Haven OB/GYN Group, Orlando, Florida, a group practice comprised of a number of physicians, including Natasha M. Knight, M.D., and dedicated to the practice of obstetrics and gynecology. At the time, Loch Haven, like Florida Hospital, was owned by Adventist Health System/Sunbelt, Inc.; however, patients, including Mrs. Dianderas, were not noticed, by signage or otherwise, of the relationship the business entities shared. On February 14, 2002, Mrs. Dianderas presented to Loch Haven for her initial visit. At the time, consistent with established practice for new obstetric patients, Mrs. Dianderas was given a copy of the NICA brochure, together with a Notice to Obstetric Patient (to acknowledge receipt of the NICA brochure). The Notice to Obstetric Patient provided, as follows: Notice to Obstetric Patient I have been furnished with information by the Loch Haven OB/GYN as prepared by the Florida Birth-Related Neurological Injury Compensation Association and have been advised that the physicians of the Loch Haven OB/GYN Group are participating members in the Florida Birth-Related Neurological Injury Compensation Association. This Plan provides that certain limited compensation is available in 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 32317-04567, (904) 488-8191 or 1- 800-3982129: I further acknowledge that I have received a copy of the form brochure prepared and furnished by the Florida Birth- Related Neurological Injury Compensation Association. Patient Signature Date Print Name Social Security Number D.O.B. Witness Date Mrs. Dianderas completed the form, by providing the requested information (name, social security number, and date of birth), and then signed and dated the form. Beverly Bailey, the medical assistant who saw Mrs. Dianderas on her initial visit, witnessed her signature. Here, Mrs. Dianderas acknowledges she signed the Notice to Obstetric Patient, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. (Transcript, pages 39-41 and 54-58). Moreover, Petitioners candidly concede, they can offer no proof to rebut the presumption that the notice provisions were met by the participating physician. (Transcript, pages 9, 55, 56, and 278). Consequently, since the NICA brochure complied with the requirements of Section 766.316, Florida Statutes, the participating physician satisfied the notice provisions of the Plan. However, notwithstanding the common ownership of Loch Haven and Florida Hospital by Adventist, they were separate business entities, and the notice by Loch Haven (on behalf of its physicians) did not satisfy Florida Hospital's obligation to give notice. § 766.316, Fla. Stat. ("Each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries."); Board of Regents v. Athey, 694 So. 2d 46, 49 (Fla. 1st DCA 1997)("Under section 766.316 . . . notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery " Conversely, it reasonably follows, notice on behalf of the participating physician will not by itself satisfy the notice requirement imposed on the hospital.) Findings related to the hospital and notice To support an inference that it complied with the notice provisions of the Plan, the hospital offered proof of the practice it followed to provide a copy of the NICA brochure and Notice to Obstetric Patient form (acknowledgment form)6 to each patient who presented to labor and delivery.7 See Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). Here, Mrs. Dianderas presented to the labor and delivery on two occasions (September 29, 2002, and October 7, 2002), during which the hospital had an opportunity to provide notice, and during which the hospital claims it provided notice.8 With regard to Mrs. Dianderas' first admission, the proof demonstrates that at or about 7:25 p.m., Sunday, September 29, 2002, Mrs. Dianderas, with an estimated delivery date of October 14, 2002, and the fetus at 37+ weeks' gestation, presented to labor and delivery, at Florida Hospital, with complaints of contractions. At the time, the finance window was closed, as it had been since 11:00 p.m., Friday, and would be until 6:00 a.m., Monday, and Mrs. Dianderas was admitted to the triage unit by Cynthia Hall, R.N., the on-duty triage nurse. Notably, Nurse Hall, who was responsible for completing all paperwork associated with Mrs. Dianderas' admission, attended Mrs. Dianderas from 7:25 p.m., until her discharge (after it was resolved Mrs. Dianderas was not in labor) at 12:19 a.m., September 30, 2002, except for a brief period (between 9:17 p.m., and 10:20 p.m.) when Mrs. Dianderas was taken for an ultrasound. With regard to notice, Nurse Hall, who routinely works weekends, testified that it was her practice, during her initial evaluation in triage, to provide the patient a copy of the NICA brochure, as well as an acknowledgment form and Consent to Treatment form to complete and sign. According to Nurse Hall, the forms were routinely signed in her presence, were routinely witnessed by her, and she routinely made a photocopy of the acknowledgment form and placed it on the finance clerk's desk (that was adjacent to her desk), so finance could update their computer records on Monday to reflect that the NICA brochure had been given. The original documents, including the original acknowledgment form, were placed in the patient's chart. Here, Nurse Hall is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Nurse Hall. However, the chart does not include a signed acknowledgment form, as it should if Nurse Hall followed her routine practice, and she could offer no explanation for its absence. Also inexplicably, the finance records related to this visit (Intervenors' Exhibit 1A, pages 1 and 2), reveal that at 8:48 p.m. (20:48), September 29, 2002, a finance clerk identified as "RLCEE8" updated Mrs. Dianderas' record to reflect that a copy of the NICA brochure had been provided. Notably, according to Nurse Hall, who was in a position to know, the finance office (in which she would have placed a copy of the acknowledgment form) was not staffed at the time, and she could not explain those entries (which she did not and was not authorized to make). Moreover, at hearing, the hospital made no effort to identify "RLCEE8" or to otherwise explain how these entries occurred. Consequently, given such irregularities it cannot be inferred, with any sense of confidence, that the hospital or Nurse Hall's routine was followed during Mrs. Dianderas' September 29, 2002, admission, or that she was provided a copy of the NICA brochure. With regard to Mrs. Dianderas' second admission, which ultimately led to Isabelle's birth, the proof demonstrates that at 2:00 p.m., October 7, 2002, Mrs. Dianderas, with the fetus at 39 weeks' gestation, presented to labor and delivery, at Florida Hospital, on referral from her obstetrician for a nonstress test (NST), secondary to decreased fetal movement. At the time, the finance window was open, and Iris Miranda, a financial services representative was on duty. With regard to notice, Ms. Miranda testified (by publication of her deposition) regarding the routine she would have followed when Mrs. Dianderas presented to the finance window that afternoon. According to Ms. Miranda, that routine would have included giving Mrs. Dianderas a Consent for Treatment form to sign, as well as a copy of the NICA brochure and an acknowledgment form to sign and give to the nurse in labor and delivery. Here, Ms. Miranda is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Ms. Miranda. Moreover, the finance department's records (Intervenors' Exhibit 1B, pages 1 and 2) include a computer entry at 2:03 p.m. (14:03), October 7, 2002, by Ms. Miranda (identified as "IVM76B") noting that a NICA brochure was provided. However, again the chart does not include a signed acknowledgment form, as it should if the hospital's routine was followed, and no compelling explanation for its absences was presented.9 Consequently, given the lack of a reasonable explanation for the irregularities that have been shown regarding the finance department's computer entries, as well as the absence of the acknowledgment form, it cannot be inferred with any sense of confidence that the hospital's routine was followed during Mrs. Dianderas' admission of October 7, 2002, or that Mrs. Dianderas was given a NICA brochure Finally, with regard to the hospital and the notice issue, it is noted that on presentation to Florida Hospital at 2:00 p.m., October 7, 2002, Mrs. Dianderas was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after her membranes were ruptured, at 4:55 p.m. More particularly, there was no "evidence of the onset and persistence of uterine contractions or rupture of the membranes" from 2:00 p.m., until 4:55 p.m., October 7, 2002. Moreover, there was no proof that, upon admission or until her membranes ruptured, "there [was] inadequate time to effect safe transfer to another hospital prior to delivery" or "[t]hat a transfer may pose a threat to the health and safety of the patient or fetus." Consequently, until 4:55 p.m., when her membranes were ruptured, Mrs. Dianderas did not have an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, that would have excused the giving of notice. Moreover, there was no proof to support a conclusion that the giving of notice was not practicable. Jurisdiction
The Issue At issue in the proceeding is whether Selvin McCoy, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Respondent, in light of such failure, declined the opportunity to offer any evidence. Consequently, there being no proof, it cannot be factually resolved whether Selvin McCoy, a minor, suffered a "birth-related neurological injury" as alleged in the claim for benefits.
