The Issue Whether David Weeks, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Bethany Weeks and Michael Weeks are the natural parents of David Weeks (David), a deceased minor, and Bethany Weeks is the Personal Representative of her deceased son's estate. David was born a live infant at 11:00 p.m., November 3, 2002, at South Seminole Hospital, a hospital located in Longwood, Florida, and, following the termination of resuscitation efforts, was pronounced dead at 11:30 p.m. David's birth weight was 2,925 grams. The physician providing obstetrical services at David's birth was Christopher Quinsey, 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 that David suffered an injury to the brain caused by oxygen deprivation, secondary to placental abruption, in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, that led inevitably to his death shortly after birth. Consequently, the record demonstrated that David 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. Findings related to the award Where, as here, it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes, provides for an award of the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. 2. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. In this case, Petitioner and NICA have agreed that, should Petitioner elect to accept benefits under the Plan, Bethany Weeks and Michael Weeks, as the parents of David, be awarded $100,000.00, to be paid in lump sum. The parties have further agreed that Petitioner Bethany Weeks, as Personal Representative of the Estate of David Weeks, be awarded a death benefit of $10,000.00, and an award of $4,115.00 for attorney's fees ($1,575.00 for Petitioner's counsel David J. White, Jr., and $2,040.00 for Petitioner's co-counsel Patrick C. Massa) and other expenses ($500.00) incurred in connection with the filing of the claim. Finally, the parties have agreed that no monies are owing for past expenses. Such agreement is reasonable, and is approved. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioner would prefer to pursue her civil remedies, and has averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at David's birth (Dr. Quinsey), 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.3 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[4] 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, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Petitioner's Exhibit 7.) Findings related to Mrs. Weeks' prenatal care and notice Initially, Mrs. Weeks received prenatal care at the Seminole County Health Department, where she was first seen on June 18, 2002, and then transferred to Advanced Women's Health Specialists (AWHS) in September 2002, at 29 3/7 weeks' gestation. Notably, Mrs. Weeks had extensive workups at the Seminole County Health Department, and she delivered a copy of her medical records (which she received from the health department on September 13, 2002) to AWHS, most likely at her first visit, Monday, September 16, 2002.5 According to Mrs. Weeks' patient chart, AWHS received the following documents from the health department: a flow sheet; progress notes; history; physical; PAP; blood work/all labs; Chlamydia, gonorrhea, hepatitis results; RPR results; tri-screen results; HIV results; sonogram result; one hour GTT results; and urine culture results. (Doctors' Exhibit 10.) Pertinent to the notice issue, the physicians (who were members of the AWHS group practice) and AWHS presented evidence (through the testimony of Bonnie Mladec, the clinical coordinator for AWHS) that when Mrs. Weeks presented to AWHS for her initial visit, AWHS had a routine pursuant to which all new patients, regardless of the stage of their pregnancy, and regardless of whether they started their prenatal care with another provider, were given a copy of the NICA brochure by the medical assistant who interviewed them, together with eight other documents. (Doctors' Exhibits 1-9.) Four of the documents were informational, and did not require a signature: the NICA brochure; a one-page list of safe medications to use during pregnancy; a one-page document titled "Why Breastfeed?"; and a one-page document explaining the Healthy Start Program. The five documents that required a signature were a Notice to Our Obstetrics Patients (to acknowledge receipt of the NICA brochure)6; consent to HIV Antibody Test form (to accept or decline the test); a Triple Test Screening for Birth Defects form (to accept a decline the test); a Cystic Fibrosis Carrier Testing form (to accept or decline the test); and a Healthy Start Prenatal Risk Screen form (to accept or decline screening). Notably, Mrs. Weeks' chart does not include, as it should if AWHS's routine was followed, a copy of a Notice to Our Obstetric Patients form signed by Mrs. Weeks, or a copy of any of the other forms patients were routinely requested to sign. (Doctors' Exhibit 10; Transcript, pages 21-25.) Nevertheless, the physicians and AWHS contend there is no reason to conclude AWHS's routine was not followed because each test was performed, and AWHS would not have performed the tests absent Mrs. Weeks' written consent. In contrast to the proof offered regarding AWHS's routine, Mrs. Weeks testified that no such routine was followed when she presented for her initial visit.7 According to Mrs. Weeks, no one discussed the Plan with her, she did not receive a NICA brochure, did not sign a receipt for a brochure, and did not sign any other document that would have been part of the routine. Here, the evidence failed to support the conclusion that, more likely than not, AWHS's routine was followed. In so concluding, it is noted that, Mrs. Weeks' chart contains no document signed by Mrs. Weeks that would have been part of AWHS's routine, and contrary to the contention of the physicians and AWHS, and contrary to the testimony they offered to support such contention, the charting of HIV Antibody test results and a Triple Test Screening does not support the conclusion that AWHS's routine was followed. Rather, it demonstrates that AWHS merely accepted the results the health department had obtained. As for the Healthy Start Prenatal Risk Screen, Mrs. Weeks' chart contains no evidence that AWHS presented her with that form to sign. Rather, since the health department's prenatal record reveals that Healthy Start Screening had been completed, given AWHS's acceptance of other department of health testing, and given no further explanation, it is likely AWHS did not pursue the matter. Consequently, as to these forms, the record offers no compelling proof that AWHS followed its routine. Rather, it offers proof to the contrary. As for the Cystic Fibrosis Carrier Test, the record does reveal that test was done at AWHS, and Mrs. Weeks' chart (Antepartum Record, page D, under Comments/Additional Labs) contains an entry ("[C]ystic F[ibrosis]=accepted [,] drawn on 9/16/02") that supports the conclusion she consented to the test at her initial visit. However, given the proof, or lack thereof, these findings are not compelling proof that Mrs. Weeks' consent to the Cystic Fibrosis Carrier Test was part of an invariable routine that was followed at a patient's initial visit. Therefore, the proof fails to support the conclusion that AWHS's routine was followed on Mrs. Weeks' initial visit, or that Mrs. Weeks received a NICA brochure or signed a receipt for a NICA brochure on her initial visit. Findings related to David's birth and notice At or about 8:15 p.m., November 3, 2002, Mrs. Weeks, with an estimated delivery date of November 27, 2002, and the fetus at 36 5/7 weeks' gestation, presented to Labor and Delivery Triage, at South Seminole Hospital, in labor (with evidence of the onset and persistence of uterine contractions). At the time, Mrs. Weeks' chief complaint was noted as "[contractions] most of today, becoming more uncomfortable since [6:00 p.m.]." The notes of the triage nurse (Bernadette Charles, R.N.) include the following narrative: Client received from ER in wheelchair with above complaints. Crying and complain of labor pains. Denies rupture of membranes or bright red vag bleeding. Client's restless and uncooperative. Encouraged to relax between contractions Elevated B[lood] P[ressure] noted. Client complained of headaches, DTRs 3[+ very brisk], no clonus, edema 2 to 3+ . . . [P]ain scale [8- 9/10]. (Petitioner's Exhibit 1, pages 21 and 22; Petitioners Exhibit 6, page 0533.) Initial assessment in triage noted uterine contractions of moderate intensity, every 2 to 3 minutes, with a duration of 40 to 50 seconds. Blood pressure was elevated (164/112), and vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus between station -1 and -2. At 8:45 p.m., Ms. Charles spoke with Lesann Dwyer, a certified nurse midwife (CNM) at AWHS, and at 8:55 p.m., she spoke with Dr. Quinsey, and received orders to admit Mrs. Weeks to labor and delivery. Thereafter, at 9:05 p.m., Mrs. Weeks was moved by wheelchair from triage to labor and delivery room 403, where she was admitted at 9:10 p.m. According to Ms. Charles' admission note: client admitted to LR 403 in early labor . . . P[ain]/S[cale] 6/10-Client crying- uncooperative. Requesting something for pain . . . . According to the medical records, by 9:15 p.m., the time at which the activities were documented, Mrs. Weeks was in her bed, positioned on her right side, and an external fetal monitor and blood pressure monitor were attached. At the time, assessment revealed an elevated blood pressure (173/103); a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability; the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at station -1; moderate uterine contractions, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds; and a pain severity level of 7-8/10. Also noted, an IV had been started, labs drawn, and Mrs. Weeks had been asked to sign a number of documents, including an acknowledgment of receipt of NICA notice.8 The acknowledgement form provided, as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc. and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191/ 1 (800) 398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. Dated this day of , 2002. Signature Name of Patient Social Security No. Witness: Date: Mrs. Weeks concedes she signed the acknowledgment form. However, she denies she received the NICA brochure. Subsequently, at 9:20 p.m., Mrs. Weeks was given Stadal (for pain) and magnesium sulfate (for pregnancy-induced high blood pressure), and at 9:30 p.m., the records note a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability, and contractions of moderate intensity, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds. Thereafter, there is a gap in documentation until 10:00 p.m., when fetal heart rate is noted in the 90 to 100 beat per minute range, Mrs. Weeks is given oxygen and a position change, and Dr. Quinsey is called and updated. Shortly thereafter, at 10:05 p.m., anesthesiology was alerted to a possible cesarean section, and at 10:20 p.m., Ms. Charles attempted to place a fetal scalp electrode and Mrs. Weeks membranes ruptured. By 10:25 p.m., Dr. Quinsey had arrived at the hospital, and was noted at bedside. At the time, Dr. Quinsey observed Mrs. Weeks was having constant abdominal pain, with a tense abdomen, consistent with placental abruption, and an emergent cesarean section was indicated. Under the circumstances, it was Dr. Quinsey's opinion, which was credible and uncontroverted, that inadequate time remained to safely transfer Mrs. Weeks to another hospital prior to delivery, and any transfer may have posed a threat to the health and safety of Mrs. Weeks or her fetus. Given Mrs. Weeks' presentation, a stat cesarean section was called, and Mrs. Weeks was moved to the operating room, where she was admitted at 10:40 p.m. According to the records, surgery started at 10:57 p.m., and David was delivered at 11:00 p.m., with an Apgar score of 1 and 0, at one and five minutes respectively.9 Resolution of the notice issue with regard to the participating physician With regard to Dr. Quinsey, the participating physician who provided obstetrical services at David's birth, the proof demonstrates that, although it was practicable to do so during her prenatal care at AWHS, Mrs. Weeks was not given notice.10 However, since Mrs. Weeks had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, when Dr. Quinsey provided obstetrical services to her on November 3, 2002, he was exempt from the pre-delivery notice requirement, notwithstanding it may have been practicable for him to have provided Mrs. Weeks notice during her prenatal care at AWHS. § 766.316, Fla. Stat.; Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582, 586 (Fla. 5th DCA 2005)("We hold that the statute contains two distinct exemptions, each of which independently provides an exception to the pre-delivery notice requirement. As such, [the hospital] was excused from providing notice to [the patient] when she arrived at the [hospital] under emergency medical conditions, and her previous visits to the hospital during her pregnancy did not negate this clear statutory exemption."). Consequently, with regard to the participating physician, the notice provisions of the Plan were satisfied. Resolution of the notice issue with regard to the hospital With regard to the hospital, it was the hospital's policy to provide the patient with a copy of the NICA brochure, together with an acknowledgment form for the patient to sign acknowledging receipt of the brochure, following admission to labor and delivery. Here, there is no dispute that Mrs. Weeks signed the acknowledgment form at or about 9:15 p.m., following her admission to labor and delivery.11 What is disputed, is whether Mrs. Weeks was given a NICA brochure. Petitioner also contends that the brochure, if given, was not provided a reasonable time prior to delivery to allow for the exercise of an informed choice of providers. As to this contention, Petitioner notes that the hospital had an opportunity to provide meaningful notice during two prior admissions, as well as during Mrs. Weeks' preregistration, but failed to do so, and that "[a]t the time [] the NICA brochure was allegedly given to Bethany Weeks [on November 3, 2002] she was expected to read it while she was having contractions, in pain, receiving lactate ringers, and while labs were being drawn," a less than opportune time. (Petitioner's Proposal Final Order, paragraph 26.) Stated otherwise, Petitioner contends that, if she was given the brochure on November 3, 2002, it was not efficacious notice. However, the hospital, like the participating physician who delivered obstetrical services at David's birth, was exempt from the pre-delivery notice requirement, since when Mrs. Weeks presented to South Seminole Hospital at or about 8:15 a.m., November 3, 2002, she had an "emergency medical condition" ("evidence of the onset and persistence of uterine contractions"), as defined by Section 395.002(9)(b), Florida Statutes, and notwithstanding it may have been practicable for the hospital to have provided Mrs. Weeks' notice during her previous visits to the hospital. § 766.316, Fla. Stat.; Orlando Regional Healthcare Systems, Inc. v. Alexander, supra. Consequently, it is unnecessary to address whether Mrs. Weeks was given a NICA brochure or whether, if given, the notice was efficacious.
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 obstetrical services were delivered by a participating physician in the course of labor and delivery. If so, whether notice was accorded the patient as contemplated by Section 766.316, Florida Statutes.1
Findings Of Fact Fundamental findings Petitioner, Lisa Gilcreast, is the mother and natural guardian of Kara Gilcreast, a minor. Kara was born a live infant on May 28, 2000, at Bayfront Medical Center, Inc. (Bayfront Medical Center), a hospital located in St. Petersburg, Pinellas County, Florida, and her birth weight exceeded 2,500 grams. Coverage under the Plan 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 birth." Section 766.31(1), Florida Statutes. See also Section 766.309(1), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Kara sustained a "birth- related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. What remains in dispute is whether obstetrical services were rendered by a "participating physician" at birth. The "participating physician" issue Section 766.302(7), Florida Statutes, defines the term "participating physician," as used in the Plan, to mean: . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred . . . . And, Section 766.314(4)(c), Florida Statutes, describes the circumstances under which a resident physician, assistant resident physician, or intern may be deemed a participating physician without payment of the assessment otherwise required for participation in the Plan, as follows: . . . if the physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule, and is supervised by a physician who is participating in the plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment Supervision shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features . . . . (Emphasis added) Pertinent to this case, the proof demonstrates that the physicians providing obstetrical services during the course of Kara's birth were resident physicians3 in Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology.4 The proof further demonstrates that during that time, Dr. Karen Raimer, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (Plan), was the supervising physician, and that she was in the hospital and easily available (by beeper or overhead page through the hospital operator) to consult with or assist the residents if they requested. However, Dr. Raimer was never called by the residents, and she did not provide any obstetrical services during the course of Ms. Gilcreast's labor or Kara's birth.5 As heretofore noted, "supervision," as defined by Section 766.314(4)(c), Florida Statutes, "require[s] that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features." Here, while the supervising physician was easily available, there was no compelling proof that "the supervising physician . . . [had] a prearranged plan for treatment of specified patient problems which the supervised . . . physician . . . [could] carry out in the absence of any complicating features" (the prearranged plan for treatment). Consequently, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. In reaching such conclusion, Dr. Raimer's testimony regarding the residency program at Bayfront Medical Center, as well as her perceptions on the existence of a prearranged plan of treatment, has been considered. In this regard, it is noted that Dr. Raimer's role as supervising physician, or attending physician as it was known in the residency program, was to be available if the residents had any questions or concerns regarding patient care, and if her assistance was not requested, as it was not in this case, she did not involve herself in the labor and delivery. Under such circumstances, as is the practice in the residency program, the residents are left to manage the patient's care, with the more senior resident supervising the more junior. As for resident supervision in this case, Dr. Raimer offered the following observations: Q: And so [w]as . . . [Dr. Marler] the person for the shift on Sunday, May 28, 2000, who was responsible for the supervision of the other residents? . . . [A]s far as I remember, Dr. Marler was the chief resident on that day, the fourth-year. Q. Is there any resident that's higher than the chief resident? A. No. Q. So if he's there - A. Then he was responsible. * * * Q. So he was responsible to supervise the senior residents, the third-year residents, the second-year residents, and the first-year residents; is that correct? A. That's correct. Q. And you relied upon him to do that? A. Yes. [Joint Exhibit 2, pages 50 and 51] As for a preexisting plan of treatment, Dr. Raimer offered the following observations: Q. Now, in May 2000, did you have any prearranged plan of treatment for specified patient problems which the resident may carry out in the absence of any complicating features? All of the residents in their training as they go through the four years, it’s a cumulative knowledge base and experience base that develops. And by the time that they get through their fourth year and about to graduate and get to that point, if they are a fourth-year, we feel that they are competent in knowing how to manage cases that have complicating features, and if not, they can call their attending physician. * * * . . . [Again], residents during their training are expected to learn how to manage patients throughout their four years of experience. And, again, by the time they get to their fourth year, they are expected to know how to manage patients on an obstetrical unit and manage complicating features. If there is any concern or any question, they are to call their attending physician. [Joint Exhibit 2, pages 47 and 48] From Dr. Raimer's testimony, it is apparent that, unless requested to do so, the supervising physician does not participate in the preparation of a plan of treatment. Rather, it is customary, as was done in the instant case, for the chief resident to develop the plan. Therefore, as heretofore noted, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. The notice issue Pertinent to the notice issue, the proof demonstrates that Ms. Gilcreast received her prenatal care at Bayfront Women's & Children's Health Center (the Clinic), an outpatient facility established by Bayfront Medical Center to provide obstetrical services to lower income families in mid-Pinellas County, and located at 7995 66th Street, North, Pinellas Park, Florida. Staffing at the facility included faculty of, and residents participating in, Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology, as well as two perinatologists and three nurse midwives, all of whom were employed by Bayfront Medical Center.6 Notably, at her first visit to the Clinic, Ms. Gilcreast (age 18, with her first pregnancy) met with Cynthia McNulty, a patient representative, for a new patient orientation. During that orientation, which lasted from 45 minutes to 1 hour, Ms. McNulty addressed a number of matters with Ms. Gilcreast, including financial matters (Florida Medicaid), Healthy Start (for which Ms. Gilcreast filled out an application), W.I.C. (a nutritional counseling program and monthly food check program), the prenatal care plan she could expect at the clinic, and who to contact in case of emergency. Ms. McNulty also provided Ms. Gilcreast with an American Baby Basket packet (which contained parenting and educational materials, as well as samples of baby products), magazines for parenting and breast feeding, and scheduled her next appointment. Finally, at some point during the orientation, Ms. McNulty showed Ms. Gilcreast a brochure titled "Peace of Mind for an Unexpected Problem."7 That brochure, prepared by NICA,8 contains a concise explanation of the patient's rights and limitations under the Plan; however, Ms. McNulty described the brochure as a . . . $100,000 . . . insurance policy, that . . . [if] the baby was neurologically injured . . . the parents would collect $100,000, and any further questions they could call the association, . . . [at] the number . . . on the back, or talk to the physicians. [Transcript, pages 68 and 69.] Copies of all the papers they discussed, including the NICA brochure, were placed in the American Baby Basket packet, a clear plastic bag, by Ms. McNulty and given to Ms. Gilcreast. Subsequently, Ms. Gilcreast discarded many of the materials she received during the orientation, and there is no proof of record that would lead one to conclude that she read the NICA brochure or was otherwise informed of its actual contents.
The Issue Whether Bryan Siravo has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Bryan Siravo (Bryan) is the natural son of Robert and Mauro Siravo. He was born a live infant on March 13, 1990, at Plantation General Hospital in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician delivering obstetrical services during the birth of Bryan was Edward Buonopane, M.D., who was, at all times material hereto, a participating physician in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Bryan Siravo was delivered by cesarean section because of a breach presentation and maternal obesity. The delivery was without complications and Bryan presented with Apgar scores of 8 at one minute and 9 at five minutes. Resuscitation was not required in the immediate postdelivery period, and there was no evidence of fetal distress. After birth, Bryan was transported to the regular or newborn nursery and was found in a cyanotic state approximately three hours after birth. Bryan was subsequently transferred to the neonatal intensive care unit where he was intubated after about one hour. Bryan's condition continued to deteriorate over the next 24 hours and an echocardiogram revealed the presence of a large patent ductus arteriosus and heart valve insufficiency. Due to the continued deterioration of his condition, Bryan was transferred to Miami Children's Hospital on March 15, 1990. At Miami Children's Hospital, Bryan was diagnosed with respiratory distress syndrome type I, severe; a condition which impairs the ability to breath, and which arises after birth when the infant is required to breath outside the womb. Bryan also underwent multiple ultrasound and CT scans of the brain. These neuroimaging studies revealed the presence of a Grade IV intraventricular hemorrhage. Based on the credible proof of record, it is concluded that Bryan suffered an injury to the brain caused by oxygen deprivation which rendered him permanently and substantially mentally and physically impaired. Such injury did not, however, occur during labor, delivery or resuscitation in the immediate post-delivery period. Rather, the proof demonstrated that the origins of Bryan's hemorrhage and his resultant neurologic injury were a combination of respiratory distress syndrome and patent ductive arteriosus, which began to operate after his delivery. Such mechanism, acting in consort, increased, over time, the pressure in the draining veins from Bryan's brain and, therefore, the pressure in his brain, with the consequent hemorrhage.
The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether notice was accorded the patient, as contemplated by Section 766.316, Florida Statutes (2000),1 or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Yvette Ortiz and Erick Alberto Ortiz are the natural parents and guardians of Erick Alejandro Ortiz, a minor. Erick was born a live infant on December 18, 2000, at Northwest Medical Center, a hospital located in Broward County, Florida, and his birth weight exceeded 2,500 grams. Moulton Keane, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes, provided obstetrical services during the course of Mrs. Ortiz's labor, as well as Erick's delivery and resuscitation. Also providing obstetrical services during Mrs. Ortiz's labor was Alison Clarke-DeSouza, M.D.; however, Dr. DeSouza was not a participating physician in the Plan. When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth 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(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Erick suffered severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, the claim is compensable and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes (2000), provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . . Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $1,258.16 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $7,500.00, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2000). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 29 Fla. L. Weekly D227a (Fla. 2d DCA Jan. 14, 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 29 Fla. L. Weekly D216 (Fla. 2d DCA Dec. 17, 2003)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 29 Fla. L. Weekly D226a (Fla. 2d DCA Jan. 14, 2004)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Responding to Section 766.316, Florida Statutes, NICA developed a form (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 it to their obstetrical patients. Findings related to notice Mrs. Ortiz received her prenatal care at South Florida Women's Health Associates, a group practice dedicated to obstetrics and gynecology. Tara Solomon, M.D., and Moulton Keane, M.D., were among the physicians who practiced with the group. Pertinent to the notice issue, the proof demonstrates that from March 25, 2000, the date of Mrs. Ortiz's first visit to South Florida Women's Health Associates, until her presentation at Northwest Medical Center on December 17, 2000, for Erick's birth, Mrs. Ortiz was primarily seen by Dr. Solomon, who was not a "participating physician" in the plan. However, on three occasions Mrs. Ortiz was seen by Dr. Keane: once when Dr. Solomon was not available for Mrs. Ortiz's regular appointment with Dr. Solomon, and thereafter on June 21, 2000, for an amniocentesis and on October 17, 2000, for an ultrasound. Notably, although Dr. Keane was a "participating physician" in the Plan, Mrs. Ortiz was never provided a copy of the NICA brochure or notice of Dr. Keane's participation in the Plan, either during her prenatal care or Erick's birth. Also pertinent to the notice issue, the proof demonstrates that on August 25, 2000, Mrs. Ortiz presented for pre-registration at Northwest Medical Center, a facility at which she had been told the physicians associated with South Florida Women's Health Associates had staff privileges. At that time, Mrs. Ortiz supplied pertinent pre-admission data, presumably similar to that requested by Northwest Medical Center's pre- admission form (Petitioners' Exhibit 17); signed a Conditions and Consent for Treatment form (Petitioners' Exhibit 12); and was given an advance directives booklet (Petitioners' Exhibit 14) and a Northwest Medical Center Patient Handbook (Petitioners' Exhibit 13). Notably, none of the materials Mrs. Ortiz signed or was given referred to the Plan, and she was not otherwise advised of the Plan or provided a copy of the NICA brochure. On December 17, 2000, with the fetus at term (41+ weeks gestation), Mrs. Ortiz presented at Northwest Medical Center, where she was received in labor and delivery at 6:07 p.m. At the time, Mrs. Ortiz complained of uterine contractions every 10 to 13 minutes since noon, and denied bleeding or rupture of the membranes. Vaginal examination revealed the cervix at fingertip, effacement at 70 percent, and the fetus at -3 station, and contractions were noted as mild, at a frequency of 2-4 minutes, with a duration of 50-60 seconds. Dr. DeSouza, who was covering for Dr. Keane, was called and given a report on Mrs. Ortiz's status. At 7:50 p.m., Dr. DeSouza was noted at bedside. At the time, contractions were strong, at a frequency of 1 to 5 minutes, with a duration of 40 to 80 seconds, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 75 percent, and the fetus at -2 station. Artificial rupture of the membranes did not reveal any fluid draining. Routine labor room admitting orders were issued by Dr. DeSouza, and Mrs. Ortiz, who had previously been monitored as an outpatient, was admitted as an impatient, to labor and delivery. Notably, as a matter of course, the hospital did not provide NICA notice, although it could easily have done so, prior to admission as an inpatient. Following admission, the labor and delivery nurse on duty at the time, Patricia Thomas, R.N., presented two forms for Mrs. Ortiz's signature, as well as a Patient Questionnaire (also referred to as an anesthesia questionnaire in this proceeding) for her to complete. The first form was a two-sided document, the front of which contained a Consent for Anesthesia and the back of which contained a Consent for Surgery/Blood Transfusion (the consent form), which were signed by Mrs. Ortiz and witnessed by Nurse Thomas at 8:20 p.m., and 8:30 p.m., respectively. The second form presented for signature was a Notice to Obstetric Patient, regarding the Florida Birth-Related Neurological Injury Compensation Plan. The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by NORTHWEST MEDICAL CENTER prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. Not all OB/GYN physicians participate in NICA. For specifics on the program, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association, P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received and will read a copy of the brochure prepared by NICA. Name of Patient Signature Date/Time Witness Date/Time Contemporaneously with the notice, Mrs. Ortiz was given a copy of the NICA brochure.2 Here, there is no dispute Mrs. Ortiz signed the Notice to Obstetric Patient form (notice form) and no compelling proof that she was not also provided a copy of the NICA brochure. What is disputed is whether the notice form and NICA brochure were provided contemporaneously with the consent form. Petitioners also contend the notice form and the NICA brochure were not provided a reasonable time prior to delivery. Lending confusion to when the notice form and NICA brochure were provided is the fact that the notice form does not include, as the form requires, the time it was signed. Supportive of the conclusion that the notice form was not provided or executed contemporaneously with the consent form is the fact that it was not witnessed by Nurse Thomas, as one would reasonably expect, but by Mr. Ortiz, who was not present at the time the consent form was executed, and who was not present until sometime between 9:30 p.m. and 10:00 p.m. Under the circumstances, the record is not compelling that the notice form or NICA brochure was provided to Mrs. Ortiz prior to 9:30 p.m., and no compelling proof to demonstrate when, thereafter, the NICA notice was provided by the hospital. At 8:45 p.m., Dr. Keane, who had assumed Mrs. Ortiz's care, called to inquire about her status. At the time, Dr. Keane was notified that no accelerations were present, variability was decreased, the fetal heart rate baseline was 150-153 beats per minute, and no fluid was draining. Dr. Keane gave orders for observation and pain medication. At 10:10 p.m., vaginal examination revealed little progress, with the cervix at 1 centimeter, effacement at 80 percent, and the fetus at -2 station. Dr. Keane was beeped and returned the call at 10:20 p.m. At the time Dr. Keane was informed of the results of the vaginal examination; that Mrs. Ortiz was on continuous oxygen, left lateral position; and that there was no change in variability, no accelerations, and occasional late decelerations. Dr. Keane requested the fetal monitor strip be faxed to him. According to the labor record, the strip was faxed to Dr. Keane at 10:30 p.m., and at 10:45 p.m., he called to say he had reviewed the strips. At the time, the labor record notes: . . . M.D. states that at the moment delivery was not indicated. Orders received for pain medication. MD notified that patient was on continuous oxygen . . . via face mask . . . [no] fluid draining; left lateral position[;] occ[asional] late decels; [and no] spontaneous accel[erations]. At 12:10 a.m., December 18, 2000, Dr. Keane was informed that late deceleration had been noted, with decreased variability, and no accelerations. Dr. Keane ordered a labor epidural, as requested by Mrs. Ortiz. Thereafter, at 12:55 a.m., Dr. Keane was informed fetal heart monitoring revealed repetitive late decelerations, with occasional decreased variability; Dr. Keane ordered preparations for a cesarean section; at 1:35 a.m., Dr. Keane was at bedside; at 1:53 a.m., Mrs. Ortiz was moved to the operating room; and at 2:26 a.m., Erick was delivered.
The Issue At issue is whether Alexandria LeCrenier, 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 Petitioner, Renee LeCrenier, is the maternal grandmother and legal guardian of Alexandria LeCrenier (Alexandria), a minor. Alexandria was born to Mrs. LeCrenier's daughter, Andrea LeCrenier (Andrea), on February 25, 1996, at Memorial Medical Center, a hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. At the time of delivery, Andrea (date of birth February 22, 1979) was a student, and 17 years of age. The physician providing obstetrical services during the birth of Alexandria was Michelle McLanahan, M.D., a physician associated with Women's Medical Group, P.A. (WMG), who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded under the Plan for infants who have suffered 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." Section 766.302(2), Florida Statutes. Here, the parties have stipulated that, as a result of a brain injury, Alexandria is permanently and substantially mentally and physically impaired. What remains to resolve is the timing and etiology of that injury or, stated differently, whether the injury Alexandria suffered was "caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period," as required for coverage under the Plan. Andrea LeCrenier's antepartum course and Alexandria's birth Andrea's prenatal course was apparently uncomplicated until January 4, 1996, when (at 33 weeks, 1 day gestation) she was diagnosed with mild pregnancy induced hypertension and fetal tachycardia. Referral to labor and delivery at Memorial Medical Center for evaluation proved reassuring for fetal wellbeing, as did a subsequent routine of antepartum testing. That testing included a weekly biophysical profile, once a week until 40 weeks gestation (performed February 1, February 8, February 15, and February 22, 1996).1 Following antepartum testing, Andrea also paid a routine office visit to WMG. While no contractions were noted at the time, pelvic examination revealed her cervix to be dilated 3 centimeters, effacement at 70 percent, and the fetus at station -3. Andrea was then scheduled for a follow-up biophysical profile on February 26, 1996, and evaluation for induction of labor. At approximately 3:09 a.m., February 25, 1996, Andrea (with an estimated date of confinement of February 21, 1996) presented to Memorial Medical Center in early labor. At the time, Andrea complained of passage of mucus plug and vaginal spotting, and cramping (contractions) all day, with decreased fetal movement. Vaginal examination revealed the membranes intact, and the cervix at 3 centimeters dilation, effacement at 100 percent, and the fetus at station -1. External fetal monitoring was applied at 3:18 a.m., and was immediately observed to be non-reassuring, with no accelerations, late subtle decelerations, and diminished long- term and short-term variability. By 4:05 a.m., the late decelerations had worsened, and at 4:21 a.m., a scalp pH was attempted; however, upon rupture of the membrane "thick green meconium stained fluid with particulates" was encountered and a scalp pH could not be obtained. Due to the non-reassuring fetal heart tones, Dr. McLanahan called for a stat cesarean section. Andrea was transported by stretcher to the operating room at 4:39 a.m., anesthesia was started at 4:45 a.m., the first incision made at 4:51 a.m., and Alexandria was delivered at 4:58 a.m. The mother's discharge summary reveals the following observations during delivery: . . . The infant was delivered from a vertex presentation with DeLee suctioning done at delivery of the head prior to the delivery of the body due to the thick meconium fluid. There was a tight nuchal cord times two that was noted. The cord had to be clamped and cut prior to delivery of the infant's body and prior to delivery of the head at the time of cesarean section. The infant was passed off the operative field to the ARNP who continued to suction the infant [below the cords] due to the meconium . . . . Alexandria required resuscitation, and received positive pressure ventilation with ambu bag and mask in the delivery room. Apgars of 1, 6, and 6, were assigned at one, five, and ten minutes respectively. Such scores are considered low, at less than 7 at five minutes, and are predictive of possible long-term sequelae. The Apgar scores assigned to Alexandria are a numeric expression of the condition of a newborn infant, and reflect the sum points gained on assessment of heart rate, respiratory effort, muscle tone, reflex irritability, and skin color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one minute Alexandria's Apgar score totaled 1, with heart rate being graded at 1, and respiratory effort, muscle tone, reflex irritability and skin color being graded at 0. At five minutes, Alexandria's Apgar score totaled 6, with heart rate being graded at 2, and respiratory effort, muscle tone, reflex irritability, and skin color being graded at 1 each. At ten minutes, Alexandria's Apgar score showed no further improvement and at 5:10 a.m., she was transferred to the special care nursery (SCN) where she was immediately placed on a ventilator. Following admission to the SCN, Alexandria's initial arterial blood gases (at 5:20 a.m.) revealed a pH of 7.24, PC02 of 20, P02 of 166, and a -17.6 base excess, consistent with metabolic acidosis, and bicarbonate was administered. Alexandria also exhibited signs of hypovolemia, hydroglycemia, and seizure activity (at 5:50 a.m.). Due to Alexandria's critical status she was transferred (at 8:45 a.m.) to a level III newborn intensive care unit (NICU) at University Medical Center. Diagnoses on discharge from Memorial Medical Center were, as follows: TERMED AGA FEMALE. RESPIRATORY DISTRESS; PROBABLE PERSISTENT PULMONARY HYPERTENSION, RULE OUT MECONIUM ASPIRATION SYNDROME. METABOLIC ACIDOSIS. HYPOVOLEMIA. POSSIBLE SEIZURE DISORDER. The infant will need evaluation for hypoxic ischemic problems. While admitted to University Medical Center, Alexandria underwent numerous diagnostic tests. Those tests included a CT- head scan, at 6:05 p.m., February 26, 1996, which was reported, as follows: EXTENSIVE AND CONFLUENT AREAS OF CORTICAL AND SUBCORTICAL LOW ATTENUATION ARE COMPATIBLE WITH INFARCTION AND DEVELOPING ENCEPHALOMALACIA. LEFT HEMISPHERE INFARCTION IS MORE EXTENSIVE WITH COMPLETE INVOLVEMENT OF THE OCCIPITAL LOBE AND THE MAJORITY OF THE PARIETAL LOBE. RELATIVE SPARING OF POSTERIOR FOSSA STRUCTURES IS SEEN. MIDBRAIN AND THALAMIC NUCLEI ARE MOSTLY PRESERVED. NO ACUTE HEMORRHAGE IS SEEN. IMPRESSION: EXTENSIVE BILATERAL CORTICAL AND SUBCORTICAL INFARCTIONS, LEFT HEMISPHERE GREATER THAN RIGHT. The results of an electroencephalogram (EEG), also taken on February 26, 1996, were reported as follows: IMPRESSION: This EEG is somewhat poorly organized and suppressed for age. There are excessive right mid temporal sharp activity raising the possibility of an underlying structural or metabolic abnormality. No clear cut electrographic seizures are identified . . . . Neonatal head ultrasound, done on the fourth day of life (March 1, 1996), revealed normal ventricular size. It also noted what may have been a small subependymal hemorrhage on the right, but no interventricular hemorrhage. Alexandria was discharged to the care of her mother, Andrea LeCrenier, and grandmother, Renee LeCrenier, on March 5, 1996. Discharge diagnoses were as follows: Term live female infant, large for gestational age by length. Respiratory distress, probably secondary to meconium aspiration, resolved. Transient hypoglycemia, resolved. Transient hypotension, resolved. Multifocal cerebral infarct, bilateral. Encephalopathy and developmental delay secondary to cerebral infarct. The timing and etiology of Alexandria's brain injury To address the cause and timing of Alexandria's injury, the parties offered the medical records relating to Andrea's antepartum and intrapartum course, as well as for Alexandria's birth and subsequent development. The parties also offered the opinions of six physicians (Dr. Michael Duchowny, a physician board-certified in pediatric neurology; Dr. Charles Kalstone, a physician board-certified in obstetrics; Dr. Isaac Delke, a physician board-certified in obstetrics, as well as maternal/fetal medicine; Dr. Michelle McLanahan, a physician board-certified in obstetrics; Dr. Ramon Castillo, a physician board-certified in obstetrics, as well as maternal/fetal medicine; and, Dr. David Abdullah, a physician practicing neuroradiology). Having considered the proof, it must be resolved that, more likely than not, the brain injury Alexandria suffered, and which rendered her permanently and substantially mentally and physically impaired, was caused by oxygen deprivation occurring in the course of her mother's labor. More specifically, Alexandria's injury was most likely the result of hypoxia, suffered during a prolonged stage of early labor, associated with uterine contractions and a tight nuchal cord. In reaching such conclusion, it is initially observed that the reassuring results of prenatal testing, the evidence of severe fetal compromise on Andrea's presentation to Memorial Medical Center, and Dr. Abdullah's credible testimony regarding his reading of the CT scans (of February 26, 1996), reliably point to Alexandria's injury having occurred between February 22, 1996, and her mother's presentation to Memorial Medical Center on February 25, 1996. Also speaking to the likelihood that Alexandria's insult was occasioned by oxygen deprivation occurring in the course of labor is the evidence of cramping (contractions), with decreased fetal movement the day preceding Andrea's admission to Memorial Medical Center; the presence of thick, particulate green, meconium upon rupture of the membrane, consistent with acute (recent) stress to the fetus; and, the "tight nuchal cord times two" noted at delivery. Finally, Alexandria's presentation and development post-delivery was consistent with the severe consequences one would associate with an acute insult at or around the time of birth, such as low Apgar scores; the need for immediate, extensive resuscitative measures; hypertension; hypoglycemia; metabolic acidosis, and seizure activity within 24 hours of birth. Consequently, the proof compels the conclusion that, more likely than not, Alexandria's injury was caused by oxygen deprivation, suffered during a prolonged stage of early labor, and associated with uterine contractions and a tight nuchal cord. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioner has responded to the delivering physician's claim of Plan immunity by claiming that the physician failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged, appropriate notice was given. Regarding the notice issue, the proof demonstrates that on September 9, 1995, Andrea was provided timely notice that Women's Medical Group, P.A., was a participating practice in the Plan, together with notice as to the limited no-fault alternative for birth-related neurological injuries provided by the Plan. The notice was on Women's Medical Group, P.A., stationery, and identified on the letterhead all physicians then associated with the practice (Doctors Max C. Karrer, William R. Wooden, David P. Friedline, Angela S. Martin, Rebecca I. Moorhead, and Patricia A. Schroeder). Dr. McLanahan's name was not on the letterhead because she was not, at the time, associated with WMG. Dr. McLanahan joined WMG in or about November 1995 and, like all physicians associated with the practice, elected to become a "participating physician" in the Plan, and WMG paid the appropriate assessment on her behalf. Thereafter, Dr. McLanahan had occasion to see Andrea for two prenatal office visits and, because she was the WMG physician on call, attend to Alexandria's delivery. During that period, no additional notice was provided Andrea that WMG was a participating practice in the Plan or that separately advised Andrea that Dr. McLanahan, who had joined WMG since the initial notice, was a participating physician in the Plan.
The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether the hospital and the participating physicians gave the patient notice, as contemplated by Section 766.16, Florida Statutes, or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Jennifer Castillo and Peter Borowiak, are the natural parents and guardians of Lievens Borowiak, a minor. Lievens was born a live infant on April 18, 2001, at Jackson Memorial Hospital, a hospital owned and operated by the Public Health Trust in Miami, Dade County, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were provided during the course of Lievens' birth by Salih Y. Yasin, M.D., Mary Jo O'Sullivan, M.D., Armando Hernandez, M.D., and Victor H. Gonzales-Quintero, M.D., who, at all times material hereto, were "participating physicians" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. More particularly, Doctors Yasin, and O'Sullivan, were members of the faculty at the University of Miami, School of Medicine, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. These physicians, referred to as attending physicians, were "participating physician[s]" in the Plan, since the assessment required for participation had been paid on their behalf by the University of Miami. Doctors Hernandez and Gonzales-Quintero were "participating physician[s]," since they were residents in the Trust's postgraduate residence program in obstetrics and gynecology, and were exempt from payment of the assessment. §§ 766.302(7) and 766.313(4) and (5), Fla. Stat. 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 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Lievens suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to an award When it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes (2000),2 provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * 3. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. * * * Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Jennifer Castillo and Peter Borowiak, as the parents of Lievens, be awarded $100,000.00, to be paid in lump sum, and $8,321.44 for attorney's fees ($8,000.00) and costs ($321.44) incurred in connection with the filing of the claim. § 766.31(1)(b) and (c), Fla. Stat. The parties have further agreed that no monies are owing for past expenses, and that Respondent pay future expenses as incurred. § 766.31(1)(a) and (2), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the healthcare providers' claim of Plan immunity in a pending civil action, by averring that the healthcare providers failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same); and, Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Association, 30 Fla.L.Weekly D452a (Fla. 2d DCA February 16, 2005)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) 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 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.") Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which included a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of the brochure to their obstetrical patients. (Intervenors' Exhibit 1) Here, given the provision of Section 766.316, Florida Statutes, the hospital and attending physicians (Doctors Yasin and O'Sullivan), provided they had a reasonable opportunity to do so, were required to provide pre-delivery notice. 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 a reasonable time prior to delivery."); Board of Regents v. Athey, 694 So. 2d 46, 50 (Fla. 1st DCA 1997)("[H]ealth care providers who have a reasonable opportunity to give notice and fail to give pre- delivery notice under section 766.316, will lose their NICA exclusivity . . . .). Doctors Hernandez and Gonzales-Quintero, as residents, deemed to be a participating physician under Section 766.314(4)(c), Florida Statutes, were not required to provide notice. Findings related to notice At or about 9:45 a.m., Wednesday, April 11, 2001, Ms. Castillo, aged 23, with an estimated delivery date of April 26, 2001, and the fetus at 38 weeks' gestation, presented to Jackson Memorial Hospital (JMH) on the advice of her primary care physician, as a high-risk pregnancy, secondary to cardiac dysfunction. Notably, Ms. Castillo had a history of congenital heart disease, with cardiac surgery at aged 10 for transposition of the great vessels, and a recent diagnosis of marked pulmonary hypertension and severe aortic insufficiency. Under the circumstances, Ms. Castillo's primary care physician concluded delivery at a community hospital was inadvisable, and he referred her to JMH for evaluation, as to the timing of, as well as the management of, her delivery. On presentation, Ms. Castillo was initially assessed in OB Triage. At the time, existing protocol required that, following initial assessment, "[t]he HUS/Nurse places the patient on the triage log (in the computer at JMH) and gives the 'Peace of Mind' (OB) and 'Advance Directives' brochures in their respective languages." (Petitioners' Exhibit 11) Here, the proof demonstrates that Phyllisan Goodwin, an LPN employed by the hospital, initially assessed Ms. Castillo in OB Triage, and completed the Triage Treatment Record, which documented that, consistent with existing protocol, she provided Ms. Castillo with a copy of the Advanced Directives pamphlet and the Peace of Mind (NICA) brochure. (Intervenors' Exhibits 3 and 10) At or about the same time, Nurse Goodwin gave Ms. Castillo a General Consent for Treatment form. (Intervenors' Exhibit 2) That form, insofar as Intervenors deem it pertinent to the notice issue, included the following provisions: I, the undersigned patient or Jennifer Castillo (name of authorized representative acting on behalf of patient) consent to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment of my illness(es) by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital (PHT/JMH) and the University of Miami School of Medicine, including medical students. I have been told the name of the physician who has primary responsibility for my care, as well as the names, professional status and professional relationships of other individuals who will be involved in my care. It has been explained to me that in a large teaching hospital environment like the Public Health Trust/Jackson Memorial Hospital, there may be additional or other physicians and staff involved in my care as well. The consent was signed by Ms. Castillo, and witnessed by Nurse Goodwin, at 11:32 a.m., April 11, 2001. Following triage, Ms. Castillo was admitted to the antepartum floor for further evaluation and management. There, Ms. Castillo was evaluated by Charmin Campbell, LPN, who completed the OB Nursing Admission Assessment, which included the observation that Ms. Castillo had previously received the Advanced Directives and the Peace of Mind brochures. (Intervenors' Exhibit 4) Ms. Castillo's subsequent hospital course was summarized in Dr. Yasin's Discharge Summary, as follows: The Patient was admitted for a cardiology workup in preparation for a controlled delivery. She was seen by both anesthesia and cardiology. Cardiology recommended an echocardiogram to evaluate heart function which was done and the patient was found to have sever pulmonary hypertension with moderate right ventricular dysfunction and dilatation in addition to a moderate aortic insufficiency. The patient also had an official ultrasound which showed IUGR [intrauterine growth retardation] . . . . After long consultation with both anesthesia and cardiology the plan was made on April 13th to induce the patient in a controlled setting on [Monday] April 16th. It was felt that the patient would benefit from a central line and that she would deliver on the labor floor, because with the IUGR should the patient need a cesarean section it could potentially be stat, and a better outcome would be ensured by delivering the patient on the labor floor as opposed to the cardiac care unit. The patient while on antepartum had daily NST'S [nonstress tests]. She was followed closely both by cardiology and anesthesia. On April 16th the patient went to the labor floor for an induction. The induction continued and the patient delivered on April 18th. It was a baby boy with Apgar scores of 2 4 5. The infant weighed 2,641 grams. The delivery was vacuum assisted secondary to poor maternal effort, and it was noted that there was a tight nuchal cord times one. Both anesthesia and cardiology were present at the delivery. Postpartum the patient went to the cardiac care unit for close monitoring. The following day she was sent to the normal postpartum floor. The patient was doing incredibly well. She was asymptomatic. No shortness of breath. She had no chest pain. She was ambulating without difficulty. She was discharged home on postpartum day number two. (Petitioners' Exhibit 5A, page 004.) See also Petitioners' Exhibit 5A, pages 024-027, Dr. Yasin's progress note of April 13, 2001, and Petitioners' Exhibit 5A, pages 093-095, Dr. Yasin's Vaginal Delivery Record. Notably, during the 5 days that preceded induction of labor, Ms. Castillo was continuously monitored by hospital staff; underwent numerous evaluations, by cardiology, radiology, and anesthesiology, among others; and was called upon to sign a number of forms, in addition to the General Consent for Treatment form discussed supra, including: an Advance Directives Checklist, on April 11, 2001; a Consent to Operations or Procedures for a chest x-ray, at 5:00 p.m., April 11, 2001; a Release of Liability for Loss of Personal Property, at 12:45 a.m., April 12, 2001; a Consent Form for sterilization, on April 13, 2001; a Consent to Operations or Procedures for the delivery of her child, at 6:30 a.m., April 16, 2001; and, a Consent to Operation or Procedures for a chest x-ray, at 10:50 a.m., April 16, 2001. (Petitioners' Exhibit 5B) Moreover, the record reveals that during that 5-day period, Doctors Yasin and O'Sullivan, the attending physicians, provided obstetrical services to Ms. Castillo on numerous occasions; on April 16, 2001, Dr. Yasin supervised Ms. Castillo's induction; and on April 18, 2001, Dr. Yasin delivered Lievens. Consequently, the hospital and the attending physicians had numerous opportunities to provide notice to Ms. Castillo. It is also notable that, on presentation to JMH at 9:45 a.m., April 11, 2001, Ms. Castillo was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after 11:55 a.m., April 16, 2001, when labor was induced, with Petocin. More particularly, there was no "evidence of the onset and persistence of uterine contractions[3] or rupture of the membranes[4]" until after her labor was induced. Moreover, there was no proof that, upon admission or until her labor was induced, "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 some time after 11:55 a.m., April 16, 2001, some 5 days after she presented to the hospital, Ms. Castillo 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. Resolution of the notice issue, with regard to the hospital With regard to the hospital and the notice issue, the more persuasive evidence supports the conclusion that, more likely than not, Nurse Goodwin, consistent with established practice, provided Ms. Castillo a copy of the NICA brochure in OB Triage. In so concluding, it is noted that the giving of notice in OB Triage was an established protocol (Petitioners' Exhibit 11); the Triage Treatment Record prepared by Nurse Goodwin documented that the NICA brochure was provided (Intervenors' Exhibit 3); except for the entry regarding the NICA brochure, Ms. Castillo acknowledged the information Nurse Goodwin entered in the Triage Treatment Record was accurate (Intervenors' Exhibit 7, pages 52-53); it is unlikely, given such consistency, Nurse Goodwin would not have also provided Ms. Castillo with the NICA brochure; and Ms. Castillo's possession of the NICA brochure, following OB Triage, was confirmed by Nurse Campbell on the Nursing Assessment Record, when Ms. Castillo was admitted to the antepartum floor (Intervenors' Exhibit 4). Consequently, the proof compels the conclusion that the hospital complied with the notice provisions of the Plan. Resolution of the notice issue, with regard to the attending-participating physicians With regard to the attending physicians and the notice issue, it is undisputed that the attending physicians never provided notice, and relied on the hospital to provide notice on their behalf.5 Therefore, to demonstrate compliance, Intervenors posit that, "under the circumstances of this case," the notice the hospital provided was sufficient to satisfy both its notice obligation, and that of the attending physicians. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraph B) The "circumstances" were stated to be, as follows: Upon presenting at the OB Triage, Ms. Castillo was provided an English- language NICA Peace of Mind brochure by Phyllisan Goodwin, LPN, who electronically notated Ms. Castillo's chart on the triage treatment record to that effect. At or about the same time that she received the NICA brochure, Ms. Castillo signed an English-language General Consent for Treatment form, wherein Ms. Castillo consented to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital and the University of Miami School of Medicine. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraphs E10 and 11). Given such "circumstances," Intervenors contend that a patient, similarly situated as Ms. Castillo, would reasonably conclude from the delivery of the NICA brochure and the General Consent for Treatment form, that the brochure was given on behalf of the hospital and the attending physicians. (Hospital Proposed Final Order, paragraph 18) However, Intervenors do not suggest, and the proof does not support a conclusion that, the notice also disclosed, or compelled a conclusion that, the attending physicians were "participating physician[s]" in the Plan. Here, contrary to Intervenors' contention, it must be resolved that the notice provided by the hospital did not satisfy the attending physicians' obligation. In so concluding, it is noted that the General Consent for Treatment form is clearly unrelated to NICA notice, and the duality of purpose Intervenors contend the brochure was intended to serve, as notice for the hospital and the participating physicians, was not communicated to the patient. Moreover, a reading of the brochure would not, absent speculation, lead one to believe the brochure was also given on behalf of the physicians, and the brochure did not inform the patient that any physician was a "participating physician" in the Plan. Indeed, the brochure simply stated: 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. (Emphasis added) Consequently, although joint notice may have been the intention of the hospital, and the expectation of the attending physicians, the notice provided was inadequate to achieve that purpose.6
The Issue Whether Brianna Renee Joyner, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and participating physician provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2005), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2005),1 or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Chontee Joyner and David Joyner are the natural parents of Brianna Renee Joyner, a minor. Brianna was born a live infant on February 16, 2006, at Lawnwood Regional Medical Center, a licensed hospital located in Fort Pierce, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Brianna's birth by William B. King, 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."2 Here, Petitioners and Intervenor took no position on whether Brianna suffered a "birth-related neurological injury." In contrast, NICA was of the view that the record failed to support the conclusion that Brianna's impairments, admittedly substantial, were birth-related. Whether Brianna suffered a "birth-related neurological injury" To address whether Brianna suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-22), that included the medical records associated with Mrs. Joyner's antepartal course, as well as those associated with Brianna's birth and subsequent development. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Raymond Fernandez, M.D., a physician board-certified in pediatrics and neurology with special competence in child neurology, who offered opinions as to the likely etiology of Brianna's impairments. Dr. Fernandez examined Brianna on July 31, 2008, and obtained the following history from Mrs. Joyner: Labor was induced at 39 weeks gestation. Her cervix was 1 cm dilated. She was given Cytotec and Pitocin, and overall duration of labor was 31 hours. Epidural anesthesia was given at 24 hours of labor. Towards the end of the labor, contractions occurred one after the other and she pushed for 2 hours. Vacuum extraction was used, but she was stuck, and she was then extracted manually. Brianna was pale and she did not cry after birth. She was given to Mrs. Joyner for "1 second" and then taken to the nursery because of breathing problems. She was transferred to the NICU because of an apneic spell. Subsequent to discharge she was referred to several specialist[s]. She was found to have a small patent ductus arteriosus that was not felt to be significant. The neurosurgeons found no clinically significant spinal abnormalities. She required PE tubes and tonsillectomy and adenoidectomy because of recurrent ear infections and apneic spells. Hearing is normal. Genetics and neurology have not arrived at a specific diagnosis. She has been enrolled in a developmental therapy program through the Early Steps Program, and has improved slowly, but she remains delayed. Brianna sat straight without support at about 13 months of age. She ambulates by scooting in the sitting position, by pulling with her legs and balancing with her arms. She tries to pull up, but only if offered assistance and encouragement by holding her hands. She reaches for objects, manipulates toys but does not play with them meaningfully, although she likes noisy toys. She rarely puts food in her mouth (Cheerios sometimes). She babbles, but no words are spoken. She does not seem to understand spoken language, but does respond to visual cues. She lifts her arms when a shirt is about to be put on. She plays pat-a-cake, but not consistently. Eye contact is improving. She smiles and is loving with family members, and tends to be anxious in the presence of strangers. She bangs blocks together, but does not stack them. She does not engage in imaginative play. She likes to be read to, and helps turn pages. She watches her younger brother and follows him around the house, and laughs when he does funny things. Physical examination revealed the following: Recent weight was 27 pounds. Head circumference 47.25 cm (approximately 20th percentile). . . . Brianna was alert. She was anxious when approached, and comforted by her mother. She did not babble. No words were spoken. Eye contact was limited. She did not point. Mainly, she sat on her mother's lap and stared about the room and sometimes looked at me. There was no indication that she understood basic verbal requests. She did not point to body parts. She was not interested in toys, and pushed them away when offered. There were no specific dysmorphic features. She has 2 hyperpigmented macular-papular skin markings on her back. One is over the thoracic spine, and the other is to the right of midline. Pupils were equal and briskly reactive to light. Eye movement was full. She tracked visually, but eye contact was limited. Face was symmetric. She swallowed well. Low axial and proximal tone, but normal tone distally in extremities. No obvious weakness noted. She sat independently. She stood and took steps, but only with both hands held by her mother. There was no involuntary movement. Deep tendon reflexes 1+ throughout. Liver and spleen were not enlarged. Funduscopic examination was limited, only able to note normal red reflexes and unable to visualize optic nerves. She inconsistently turned toward sounds and when her name was called. Based on his evaluation of July 31, 2008, as well as his review of the medical records, Dr. Fernandez was of the opinion that Brianna was permanently and substantially mentally and physically impaired. However, with regard to etiology, Dr. Fernandez was of the opinion that Brianna's impairments were, more likely than not, caused by a genetic abnormality, as opposed to a brain injury caused by oxygen deprivation or mechanical injury. In so concluding, Dr. Fernandez observed that the record did not provide evidence of an acute brain injury due to hypoxia or mechanical trauma during labor and delivery. Rather, he noted: There was mild shoulder dystocia but no evidence of upper extremity weakness. There was some medical instability after delivery but no evidence for an acute encephalopathy. Following a single fluid bolus she was then medically stable and began feeding well by the end of day 1. Hypotonia was noted initially and it has persisted without evolution or evidence of spasticity or involuntary movement. The initial brain CT scan [of February 20, 2006] showed no hemorrhage and later brain MRI [of May 18, 2006] was normal. Finally, Dr. Fernandez pointed to the report of Charles Williams, M.D., a geneticist associated with Shands Children's Hospital at the University of Florida, Division of Pediatric Genetics, where Brianna had been seen because of her developmental delay and austic-like features. That report, following chromosome analyses, identified a chromosome deletion, a genetic abnormality, that in Dr. Fernandez's opinion likely explains Brianna's global delay and physical findings. Dr. Willis reviewed the medical records associated with Mrs. Joyner's antepartal course; those associated with Mrs. Joyner's labor and delivery, including the fetal heart rate monitor strips; and those associated with Brianna's newborn course. Based on that evaluation, Dr. Willis was of the opinion that Brianna did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis observed there was no significant fetal distress on the fetal heart monitor during labor; the baby's Apgar scores were normal (8 at one and five minutes); the baby did not require any significant resuscitation at birth (only suctioning and blow-by oxygen); and CT scan of the head on February 20, 2006, was negative, without evidence of hypoxic changes. When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Fernandez and Willis were not controverted or shown to lack credibility. Consequently, it must be resolved that the cause of Brianna's impairments was most likely a developmentally based genetic abnormality, as opposed to a "birth-related neurological injury." See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). The notice issue Apart from issues related to compensability, Petitioners have 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 participating physician and the hospital. § 766.309(1)(d), Fla. Stat. 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 (2005), 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 (2005), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. 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."). Resolution of the notice issue When, as here, the Petitioners dispute that the healthcare providers complied with the notice provisions of the Plan, "the burden rest[s] on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied." Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004). Here, the parties' Pre-Hearing Stipulation and Stipulated Record (Exhibits 1-22) provide no such evidence. Consequently, it must be resolved that Lawnwood Regional Medical Center and William B. King, M.D., failed to establish they complied with the notice provisions of the Plan, or that any such failure was excused because the patient presented in an "emergency medical condition" or the giving of notice was otherwise "not practicable."3
