The Issue At issue in this proceeding is whether Giuliano Gugelmin, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Mauricio Gugelmin and Stella Gugelmin are the parents and natural guardians of Giuliano Gugelmin (Giuliano), a minor. Giuliano was born a live infant on July 14, 1994, at South Broward Hospital District, d/b/a Memorial Hospital West (the Hospital), a hospital located in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Giuliano was Eric N. Freling, M.D., who was at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who have suffered 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 post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the parties have stipulated that Giuliano suffered a "birth- related neurological injury," as that term is defined by the Plan, and NICA proposes to accept the claim as compensable. The parties' stipulation is grossly consistent with the proof and, consequently, it is resolved that NICA's proposal to accept the claim as compensable is approved. While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in the collateral civil action by claiming that the health care providers failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged, proper notice was given. Regarding the notice issue, it must be resolved that the proof failed to demonstrate, more likely than not, that Dr. Freling provided Mrs. Gugelmin any notice of his participation in the Plan or any explanation of a patient's rights and limitations under the Plan. Indeed, the more compelling proof was to the contrary. Moreover, there was no proof to support a conclusion that Dr. Freling's failure to accord notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. While Dr. Freling failed to give notice, the Hospital did, as required by law, provide timely notice to Mrs. Gugelmin as to the limited no-fault alternative for birth-related neurological injuries. That notice included, as required, an explanation of a patient's rights and limitations under the Plan, and was given at 11:45 a.m., July 13, 1994, shortly after Mrs. Gugelmin's admission to the hospital (which occurred at approximately 11:22 a.m., July 13, 1994). Giuliano was delivered at 12:25 a.m., July 14, 1994.
The Issue Whether Isabelle Dianderas, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Maribenny Dianderas and Arturo Dianderas are the natural parents and guardians of Isabelle Dianderas, a minor. Isabelle was born a live infant on October 8, 2002, at Florida Hospital, a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Isabelle's birth was Natasha M. Knight, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. Here, the proof is compelling, and uncontroverted, that Isabelle suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered her permanently and substantially mentally and physically impaired. (Joint Exhibits 1-4; Transcript, pages 125-145). Consequently, the record demonstrated that Isabelle suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The notice issue While the claim qualifies for coverage under the Plan, Petitioners would prefer to pursue their civil remedies, and avoid a claim of Plan immunity by the healthcare providers in a civil action. Therefore, Petitioners have averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at Isabelle's birth, failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth- Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.") Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied.1 The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[2] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Joint Exhibit 5). Pertinent to this case, the NICA brochure applicable to Mrs. Dianderas' prenatal care and Isabelle's birth provided: The birth of a baby is an exciting and happy time. You have every reason to expect that the birth will be normal and that both mother and child will go home healthy and happy. Unfortunately, despite the skill and dedication of doctors and hospitals, complications during birth sometimes occur. Perhaps the worst complication is one which results in damage to the newborn's nervous system - called a "neurological injury." Such an injury may be catastrophic, physically, financially and emotionally. In an effort to deal with this serious problem, the Florida Legislature, in 1988, passed a law which created a Plan that offers an alternative to lengthy malpractice litigation processes brought about when a child suffers a qualifying neurological injury at birth. The law created the Florida Birth-Related Neurological Injury Compensation Association (NICA). EXCLUSIVE REMEDY The law provides that awards under the Plan are exclusive. This means that if an injury is covered by the Plan, the child and its family are not entitled to compensation through malpractice lawsuits. CRITERIA AND COVERAGE Birth-related neurological injuries have been defined as an injury to the spinal cord or brain of a live-born infant weighing at least 2500 grams at birth. In the case of multiple gestation, the live birth weight is 2000 grams for each infant. The injury must have been caused by oxygen deprivation or mechanical injury, which occurred in the course of labor, delivery or resuscitation in the immediate post delivery period in a hospital. Only hospital births are covered. The injury must have rendered the infant permanently and substantially mentally and physically impaired. The legislation does not apply to genetic or congenital abnormalities. Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan. COMPENSATION Compensation may be provided for the following: Actual expenses for necessary and reasonable care, services, drugs, equipment, facilities and travel, excluding expenses that can be compensated by state or federal government or by private insurers. In addition, an award, not to exceed $100,000 to the infant's parents or guardians. Funeral expenses are authorized up to $1,500. Reasonable expenses for filing the claim, including attorney's fees. NICA is one of only two (2) such programs in the nation, and is devoted to managing a fund that provides compensation to parents whose child may suffer a qualifying birth-related neurological injury. The Plan takes the "No-Fault" approach for all parties involved. This means that no costly litigation is required and the parents of a child qualifying under the law who file a claim with the Division of Administrative Hearings may have all actual expenses for medical and hospital care paid by the Plan. You are eligible for this protection if your doctor is a participating physician in the NICA Plan. If your doctor is a participating physician, that means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA Plan. (Joint Exhibit 5). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provision of the Plan (which requires that the form "include a clear and concise explanation of a patient's rights and limitations under the plan"), because it failed to include an explanation of the civil remedies a patient would forego if she chose a participating provider. (Transcript, pages 11-13). However, neither Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997), the authority relied upon by Petitioners, nor the notice provision of the Plan, place such an obligation on NICA in the formulation of the brochure. In Galen, supra, the Court had for consideration the following question certified to be of great public importance: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS' INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? Id. at 308. In answer to the certified question, the Court held: . . . as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery. Id. at 309. The Court reasoned, as follows: Section 766.316 provides in pertinent part: Each hospital with a participating physician on its staff and each participating physician . . . under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth- related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. Without exception the district courts of appeal that have addressed the issue have read section 766.316 to require pre-delivery notice . . . . We agree with the district courts that the only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in the plan. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the "no-fault alternative for birth-related neurological injuries" a reasonable time prior to delivery, when practicable. Our construction of the statute is supported by its legislative history. Florida's Birth-Related Neurological Injury Compensation Plan was proposed by the 1987 Academic Task Force for Review of the Insurance and Tort Systems. In its November 6, 1987 report, the Task Force recommended adoption of a no-fault compensation plan for birth-related neurological injuries similar to the then newly enacted Virginia plan (1987 Va. Acts Ch. 540). Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations 31 (Nov. 6, 1987)(hereinafter Task Force Report). However, the Task Force was concerned that the Virginia legislation did not contain a notice requirement and recommended that the Florida plan contain such a requirement. The Task Force believed that notice was necessary to ensure that the plan was fair to obstetrical patients1 and to shield the plan from constitutional challenge.2 The Task Force explained in its report: The Virginia statute does not require participating physicians and hospitals to give notice to obstetrical patients that they are participating in the limited no- fault alternative for birth-related neurological injuries. The Task Force recommends that health care providers who participate under this plan should be required to provide reasonable notice to patients of their participation. This notice requirement is justified on fairness grounds and arguably may be required in order to assure that the limited no fault alternative is constitutional. Task Force Report at 34 (emphasis added). Since Florida's NICA plan was the result of the Task Force's report, it is only logical to conclude that the plan's notice requirement was included in the Florida legislation as a result of this recommendation and therefore was intended to be a condition precedent to immunity under the plan. * * * Under our reading of the statute, in order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely manner. In those cases where it is not practicable to notify the patient prior to delivery, pre- delivery notice will not be required. Whether a health care provider was in a position to give a patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis . . . . Accordingly, we answer the certified question as explained herein and approve the decision under review. Id. at 309-311. 1 The Task Force obviously believed that because not all health care providers are required to participate in the NICA plan, fairness requires that the patient be made aware that she has limited her common law remedies by choosing a participating provider. 2 The Task Force also must have recognized that failure to require notice would open the plan up to constitutional attack. For example, the Braniffs argue that if pre- delivery notice is not a condition precedent to immunity under the plan, patients will be deprived of their common law remedies without due process. However, because of our resolution of the notice issue, we need not reach the merit of this procedural due process challenge. Notably, the Court was not asked to resolve, and did not resolve, whether the obligation to provide a form that "include[d] a clear and concise explanation of a patient's rights and limitations under the plan," required an explanation of the civil remedies a patient would forego if she chose a participating provider. Moreover, the unambiguous language the Legislature chose evidences no such intention. Rather, the Plan requires that the form "include a clear ['[f]ree from doubt or confusion']3 and concise ['[e]xpressing much in few words; succinct']4 explanation ['the process of making plain or comprehensible']5 of the patients' rights and limitations under the plan," and does not include an obligation to explain a patient's potential civil remedies at common law or otherwise. Rinella v. Abifaraj, 908 So. 2d 1126, 1127 (Fla. 1st DCA 2005)("Where the plain and ordinary meaning of statutory language is unambiguous, we cannot construe the statute in a manner that would extend, modify, or limit its express terms or its reasonable and obvious implications."); Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001)(quoting Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999))("[I]t is a basic principle of statutory construction that Courts 'are not at liberty to add words to statutes that are not placed there by the Legislature.'"); Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002)("When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words."); American Bankers Life Assurance Company of Florida v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)("Words of common usage should be construed in their plain and ordinary sense."). The brochure prepared by NICA satisfies the legislative mandate. Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 31 Fla. L. Weekly D8676 (Fla. 5th DCA March 24, 2006)("The ALJ properly recognized that NICA developed a pamphlet titled 'Peace of Mind for an Unexpected Problem.' The pamphlet contains a clear and concise explanation of a patient's rights and limitations under the NICA plan, as is required by the terms of the statute.")(petition for rehearing pending). Findings related to the participating physician and notice Mrs. Dianderas received her prenatal care at Loch Haven OB/GYN Group, Orlando, Florida, a group practice comprised of a number of physicians, including Natasha M. Knight, M.D., and dedicated to the practice of obstetrics and gynecology. At the time, Loch Haven, like Florida Hospital, was owned by Adventist Health System/Sunbelt, Inc.; however, patients, including Mrs. Dianderas, were not noticed, by signage or otherwise, of the relationship the business entities shared. On February 14, 2002, Mrs. Dianderas presented to Loch Haven for her initial visit. At the time, consistent with established practice for new obstetric patients, Mrs. Dianderas was given a copy of the NICA brochure, together with a Notice to Obstetric Patient (to acknowledge receipt of the NICA brochure). The Notice to Obstetric Patient provided, as follows: Notice to Obstetric Patient I have been furnished with information by the Loch Haven OB/GYN as prepared by the Florida Birth-Related Neurological Injury Compensation Association and have been advised that the physicians of the Loch Haven OB/GYN Group are participating members in the Florida Birth-Related Neurological Injury Compensation Association. This Plan provides that certain limited compensation is available in event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth-Related Neurological Injury Compensation association (NICA), Post office Box 14567, Tallahassee, Florida 32317-04567, (904) 488-8191 or 1- 800-3982129: I further acknowledge that I have received a copy of the form brochure prepared and furnished by the Florida Birth- Related Neurological Injury Compensation Association. Patient Signature Date Print Name Social Security Number D.O.B. Witness Date Mrs. Dianderas completed the form, by providing the requested information (name, social security number, and date of birth), and then signed and dated the form. Beverly Bailey, the medical assistant who saw Mrs. Dianderas on her initial visit, witnessed her signature. Here, Mrs. Dianderas acknowledges she signed the Notice to Obstetric Patient, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. (Transcript, pages 39-41 and 54-58). Moreover, Petitioners candidly concede, they can offer no proof to rebut the presumption that the notice provisions were met by the participating physician. (Transcript, pages 9, 55, 56, and 278). Consequently, since the NICA brochure complied with the requirements of Section 766.316, Florida Statutes, the participating physician satisfied the notice provisions of the Plan. However, notwithstanding the common ownership of Loch Haven and Florida Hospital by Adventist, they were separate business entities, and the notice by Loch Haven (on behalf of its physicians) did not satisfy Florida Hospital's obligation to give notice. § 766.316, Fla. Stat. ("Each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries."); Board of Regents v. Athey, 694 So. 2d 46, 49 (Fla. 1st DCA 1997)("Under section 766.316 . . . notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery " Conversely, it reasonably follows, notice on behalf of the participating physician will not by itself satisfy the notice requirement imposed on the hospital.) Findings related to the hospital and notice To support an inference that it complied with the notice provisions of the Plan, the hospital offered proof of the practice it followed to provide a copy of the NICA brochure and Notice to Obstetric Patient form (acknowledgment form)6 to each patient who presented to labor and delivery.7 See Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). Here, Mrs. Dianderas presented to the labor and delivery on two occasions (September 29, 2002, and October 7, 2002), during which the hospital had an opportunity to provide notice, and during which the hospital claims it provided notice.8 With regard to Mrs. Dianderas' first admission, the proof demonstrates that at or about 7:25 p.m., Sunday, September 29, 2002, Mrs. Dianderas, with an estimated delivery date of October 14, 2002, and the fetus at 37+ weeks' gestation, presented to labor and delivery, at Florida Hospital, with complaints of contractions. At the time, the finance window was closed, as it had been since 11:00 p.m., Friday, and would be until 6:00 a.m., Monday, and Mrs. Dianderas was admitted to the triage unit by Cynthia Hall, R.N., the on-duty triage nurse. Notably, Nurse Hall, who was responsible for completing all paperwork associated with Mrs. Dianderas' admission, attended Mrs. Dianderas from 7:25 p.m., until her discharge (after it was resolved Mrs. Dianderas was not in labor) at 12:19 a.m., September 30, 2002, except for a brief period (between 9:17 p.m., and 10:20 p.m.) when Mrs. Dianderas was taken for an ultrasound. With regard to notice, Nurse Hall, who routinely works weekends, testified that it was her practice, during her initial evaluation in triage, to provide the patient a copy of the NICA brochure, as well as an acknowledgment form and Consent to Treatment form to complete and sign. According to Nurse Hall, the forms were routinely signed in her presence, were routinely witnessed by her, and she routinely made a photocopy of the acknowledgment form and placed it on the finance clerk's desk (that was adjacent to her desk), so finance could update their computer records on Monday to reflect that the NICA brochure had been given. The original documents, including the original acknowledgment form, were placed in the patient's chart. Here, Nurse Hall is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Nurse Hall. However, the chart does not include a signed acknowledgment form, as it should if Nurse Hall followed her routine practice, and she could offer no explanation for its absence. Also inexplicably, the finance records related to this visit (Intervenors' Exhibit 1A, pages 1 and 2), reveal that at 8:48 p.m. (20:48), September 29, 2002, a finance clerk identified as "RLCEE8" updated Mrs. Dianderas' record to reflect that a copy of the NICA brochure had been provided. Notably, according to Nurse Hall, who was in a position to know, the finance office (in which she would have placed a copy of the acknowledgment form) was not staffed at the time, and she could not explain those entries (which she did not and was not authorized to make). Moreover, at hearing, the hospital made no effort to identify "RLCEE8" or to otherwise explain how these entries occurred. Consequently, given such irregularities it cannot be inferred, with any sense of confidence, that the hospital or Nurse Hall's routine was followed during Mrs. Dianderas' September 29, 2002, admission, or that she was provided a copy of the NICA brochure. With regard to Mrs. Dianderas' second admission, which ultimately led to Isabelle's birth, the proof demonstrates that at 2:00 p.m., October 7, 2002, Mrs. Dianderas, with the fetus at 39 weeks' gestation, presented to labor and delivery, at Florida Hospital, on referral from her obstetrician for a nonstress test (NST), secondary to decreased fetal movement. At the time, the finance window was open, and Iris Miranda, a financial services representative was on duty. With regard to notice, Ms. Miranda testified (by publication of her deposition) regarding the routine she would have followed when Mrs. Dianderas presented to the finance window that afternoon. According to Ms. Miranda, that routine would have included giving Mrs. Dianderas a Consent for Treatment form to sign, as well as a copy of the NICA brochure and an acknowledgment form to sign and give to the nurse in labor and delivery. Here, Ms. Miranda is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Ms. Miranda. Moreover, the finance department's records (Intervenors' Exhibit 1B, pages 1 and 2) include a computer entry at 2:03 p.m. (14:03), October 7, 2002, by Ms. Miranda (identified as "IVM76B") noting that a NICA brochure was provided. However, again the chart does not include a signed acknowledgment form, as it should if the hospital's routine was followed, and no compelling explanation for its absences was presented.9 Consequently, given the lack of a reasonable explanation for the irregularities that have been shown regarding the finance department's computer entries, as well as the absence of the acknowledgment form, it cannot be inferred with any sense of confidence that the hospital's routine was followed during Mrs. Dianderas' admission of October 7, 2002, or that Mrs. Dianderas was given a NICA brochure Finally, with regard to the hospital and the notice issue, it is noted that on presentation to Florida Hospital at 2:00 p.m., October 7, 2002, Mrs. Dianderas was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after her membranes were ruptured, at 4:55 p.m. More particularly, there was no "evidence of the onset and persistence of uterine contractions or rupture of the membranes" from 2:00 p.m., until 4:55 p.m., October 7, 2002. Moreover, there was no proof that, upon admission or until her membranes ruptured, "there [was] inadequate time to effect safe transfer to another hospital prior to delivery" or "[t]hat a transfer may pose a threat to the health and safety of the patient or fetus." Consequently, until 4:55 p.m., when her membranes were ruptured, Mrs. Dianderas did not have an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, that would have excused the giving of notice. Moreover, there was no proof to support a conclusion that the giving of notice was not practicable. Jurisdiction
The Issue At issue is whether interest should be assessed on an award of attorney's fees and costs under the Florida Birth-Related Neurological Injury Compensation Plan.
The Issue At issue is whether Christopher Kocher, a deceased 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 Findings related to the parental award and past expenses At hearing, the parties stipulated that there were no monies owing for past expenses, as they had been paid by collateral sources (private insurance). Section 766.31(1)(a). The parties further agreed that Petitioners, as the parents of Christopher Kocher, a deceased minor, be accorded a lump sum award of $100,000.00, as well as an award of $1,500.00 for funeral expenses. Section 766.31(1)(b). Findings related to attorney's fees and costs incurred in connection with the filing of the claim To support their claim for attorney's fees, Petitioners offered what was titled "Ferraro & Associates, P.A.'s Time Sheet." (Petitioners' Composite Exhibit 1, "Ferraro & Associates, P.A.'s Time Sheet"). As explained by Plaintiffs' counsel, at hearing MR. JOHNSTON: And these were -- these are the hours that were reconstructed. Our firm doesn't normally keep time records. We're a plaintiffs firm. But Mr. Falzone did go through and estimated the time that was spent on the NICA related matters and put them in this time sheet . . . . The time sheet reflected 17 hours dedicated to the case by Mr. Falzone, for which Petitioners requested an hourly rate of $500 (a total of $8,500.00), and 109.25 hours dedicated to the case by "different associates," for which Petitioners requested an hourly rate of $250.00 (a total of $27,312.50), for a total award of $35,812.50. Notably, such time sheet is hearsay, and was received into evidence subject to the limitations of Section 120.57(1)(c). ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Consequently, since no witnesses were called or competent evidence offered detailing the services rendered or the prevailing hourly rate charged in the community by lawyers of reasonably comparable skill, experience and reputation, for similar services, there is no competent proof to support an award of attorney's fees. Mercy Hospital, Inc. v. Johnson, 431 So. 2d 687, 688 (Fla. 3d DCA 1983)("[Attorney's] failure to present detailed evidence of his services is fatal to his claim."); Yakubik v. Board of County Commissioner's of Lee County, 656 So. 2d 591 (Fla. 2d DCA 1995)("The testimony of an expert witness concerning reasonable attorney's fees is necessary to support the establishment of the fees.") Nevertheless, at hearing, Respondent agreed that it would accept 37.25 hours (the hours ostensibly expended from November 7, 2000, through April 28, 2001), as reasonably expended in pursuing the claim, and $175.00 as a reasonable hourly rate, for a total fee award of $6,518.75. Here, given that the claim was routine, and lacked any novel aspect that would warrant the time claimed by Petitioners' counsel, Respondent's concession is reasonable. Consequently, given that Petitioners' counsel obviously expended some time pursuing the claim, and there is no competent proof to otherwise support an award of attorney's fees, an award of $6,518.75 is appropriate. Finally, Petitioners seek to recover certain expenses they claim were reasonably incurred in connection with pursuing the claim for compensation. Such costs total $4,139.30. (Petitioners' Composite Exhibit 1, "Case Expense Report," page 3). Respondent does not object to the costs reflected on counsel's "Case Expense Report," page 3, commencing with the entry of November 7, 2000 ($15.00), and extending through the entry of March 20, 2001 ($15.50), totaling $1,036.02. Accordingly, those costs are awarded, without further discussion. As for the balance of expenses claimed, and opposed by Respondent, the record is devoid of proof to support their recovery. Notably, as with their claim for attorney's fees, Petitioners offered neither testimony nor competent evidence detailing the nature of the expenses claimed. Consequently, it would be pure speculation to conclude such expenditures constitute costs that are traditionally taxable, that they were reasonable in amount, or that they were necessarily incurred in pursuing the claim for compensation. Consequently, such expenses are not recoverable.
The Issue Whether Tristan Bennett, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physician provided the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Robert Bennett and Tammy Bennett are the natural parents of Tristan Bennett, a minor. Tristan was born a live infant on September 26, 2001, at St. Vincent's Medical Center, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tristan's birth by William H. Long, 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. Mrs. Bennett's antepartum course and Tristan's birth The accident Mrs. Bennett's antepartum course was without apparent complication until approximately 7:05 a.m., September 26, 2001, when Mrs. Bennett was involved in a motor vehicle accident in Macclenny, Florida, when the right front tire of the SUV she was driving at low speed slid into a drainage ditch in front of her home and struck a culvert, flattening the tire.2 At the time, the fetus was at term (38+ weeks' gestation), with an estimated delivery date of October 8, 2001. However, given a previous cesarean section and breech presentation, Mrs. Bennett was scheduled to have a cesarean section at St. Vincent's Medical Center on October 3, 2001. Baker County Emergency Medical Services (EMS) responded to the scene, and following arrival (at 7:15 a.m.) noted a chief complaint of lower back and abdominal pain. Assessment revealed the abdomen to be soft, but tender. Mrs. Bennett was immobilized supine on a backboard, provided oxygen (O2) by nasal cannula (nc), and transported to Ed Fraser Memorial Hospital (also known as Baker County Community Hospital) in Macclenny.3 The Ed Fraser Memorial Hospital admission Mrs. Bennett arrived at Ed Fraser Memorial Hospital at 7:33 a.m. Initial vital signs were obtained at 7:42 a.m., showing a blood pressure of 134/101, heart rate of 108, and oxygen saturation of 97%. Chief complaint when triaged at 7:45 a.m., was noted as "MVA Restrained G[ravida]3 P[ara]2 back/abd[ominal] pain." She was noted to be alert and cooperative, with coherent speech, and physical examination was within normal limits. Cheryl Kennedy, R.N., an ER nurse in the Ed Fraser Memorial Hospital emergency department, used a handheld Doppler to evaluate fetal heart tones "[i]mmediately upon the patient arriving in the emergency room." Mrs. Kennedy testified that her note "FHT 118 (placenta)" on the Triage Sheet meant that "[t]he sound from the Doppler was more indicative that that was the placenta that we were picking the heart rate up from, versus from the fetus." Stated otherwise, the entry most likely reflected a maternal heart rate and not a fetal heart tone (FHT). (Exhibit 14, pages 10, 11, and 42). At 8:00 a.m., Mrs. Bennett was evaluated by the emergency room physician, Wayne Oberti, M.D. Dr. Oberti's history documented a complaint of lower back pain, denial of abdominal pain, minimal chest tightness, no neck pain, no change in vision, and the development of some nausea, vomiting and diarrhea over the course of her admission. Dr. Oberti's physical examination noted the abdomen as soft, nontender; that movement of the right lower extremity precipitated low back pain; and that he was unable to identify fetal heart beat (FHB) with handheld Doppler.4 Other findings were not shown to be remarkable. A one-view lumbar spine x-ray and pregnancy sonogram for fetal heart rate (FHR) were ordered by Dr. Oberti. Mrs. Bennett was removed from the backboard after Dr. Oberti's examination, and at 8:10, following an episode of vomiting, was taken to x-ray via stretcher, where she had an x- ray of her lumbar spine (that was unremarkable). Then Mrs. Bennett was moved into the hallway, where she waited on the stretcher for the sonogram. There she had an episode of nausea, vomiting and diarrhea, was cleaned and taken into a room for the sonogram, and then returned to the emergency room at 9:00 a.m. The extent of Mrs. Bennett's sonogram is a subject of controversy. One film/sheet containing six sonogram images exists for the sonogram study. Each of the images on the film contain the time the image was taken. The first image was timed at 8:45 a.m., and the last image was timed at 9:00 a.m. Two of the six images contain a fetal heart rate, the first reading being 146 beats per minute and the second reading, obtained at 9:00 a.m., being 133 beats per minute, all within normal limits (120 to 160 beats per minute). However, Jessica Knabb, the ultrasound technician, testified it was likely more images were obtained, since there were usually four to five sheets for such a study. (Exhibit 15, page 7). Moreover, at the time it was the hospital's policy to provide the original films if a request to review the study was made by third parties, and the study was requested on a number of occasions. (Exhibit 21). Therefore, it is likely that some of the films from the sonogram study (taken after Mrs. Bennett's episode of nausea and before the film that exists for 8:45 a.m., to 9:00 a.m.) are missing. Although the film of record documents a reassuring fetal heart rate, Dr. Oberti testified that he was advised by "whoever answered the phone in the ER" that the sonogram study revealed a heart rate in the 80s, and he so documented the report on the Emergency/Outpatient Department record as "FHR 80s" and initiated Mrs. Bennett's transfer via helicopter (LifeFlight) to St. Vincent's Medical Center for presumed "fetal distress." The Physician Certificate of Transfer, signed by Dr. Oberti at 9:10 a.m., noted the availability of labor and delivery services, with fetal monitoring and back-up surgical services at St. Vincent's Medical Center, as the reasons for transfer. (Exhibit 16, pages 22, 23, and 79; Exhibit 3). Before transfer, and following her return to the emergency room at 9:00 a.m., Mrs. Bennett was given O2 via nc, normal saline (NS) by IV for hydration, Phenergan for nausea, and a Foley catheter was placed in preparation for her transfer to St. Vincent's Medical Center by LifeFlight. Notably, the records of Baker County EMS and Ed Fraser Memorial Hospital make no mention of Mrs. Bennett being in labor, Dr. Oberti and Mrs. Bennett were of the opinion she was not in labor,5 and monitoring on presentation to St. Vincent's Medical Center, discussed infra, provides support for their opinions. LifeFlight LifeFlight arrived at Ed Fraser Memorial Hospital at 9:25 a.m., and departed with Mrs. Bennett at 9:41 a.m. The LifeFlight records note that Mrs. Bennett complained of high abdominal pain and low back pain following a car accident at a low rate of speed in which she was a restrained driver. The LifeFlight record then states: . . . Pt was taken to x-ray for a sonogram at which FHT were noted to be in the 80's for about a 10 min. period. . . . It was determined that there was fetal distress and LifeFlight was called for emergent transport. Notably, the LifeFlight records do not reflect where the information regarding the "10 min. period" of fetal bradycardia came from, and LifeFlight personnel did not recall who provided the information. Moreover, Dr. Oberti denied that a fetal heart rate in the 80s was ever reported for a 10 minute period, and the hospital records contain no such documentation. (Exhibit 16, pages 32 and 33; Exhibit 3). The LifeFlight records also state that Dr. Oberti performed a vaginal/cervical examination of Mrs. Bennett at Ed Fraser Memorial Hospital: . . . Cervical exam done by Dr. Oberti at 0800 with report of 2cm dilation and no drainage or bloody show. However, Dr. Oberti denied having performed a vaginal examination of Mrs. Bennett, and the hospital records contain no such documentation. (Exhibit 16, pages 38, 53, and 74; Exhibit 3). Here, there is no reason to question the integrity and professionalism of the LifeFlight paramedics. Indeed, they had no apparent reason to fabricate the information reported and the most likely source of the information was hospital personnel. However, under the circumstances, that does not make the information reliable and it remains hearsay which, there being no apparent exception to its admissibility, cannot support a finding of fact. § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") St. Vincent's Medical Center Mrs. Bennett's transfer via LifeFlight was without incident, and at 9:59 a.m., she was admitted to labor and delivery at St. Vincent's Medical Center and placed on external fetal monitoring. At the time, an "irritable" uterus was noted, with contractions of mild intensity, lasting 30-45 seconds, consistent with placental abruption (at an unknown stage) and not labor.6 Fetal monitoring was reassuring, with a fetal heart rate baseline in the 150s, with average long-term variability and accelerations present. Mrs. Bennett was continuously monitored until 12:47 p.m., when fetal monitoring was discontinued and she was taken to the operating room for a cesarean section delivery. During that period, Mrs. Bennett's contractions were always mild, and did not increase in intensity, did not increase in duration, and demonstrated a pattern consistent with an irritable uterus due to placental abruption, unlikely to produce cervical change.7 Stated otherwise, the record reveals that, more likely than not, Mrs. Bennett was not in labor, when monitoring was discontinued at 12:47 p.m., or, there being no persuasive evidence to support a contrary conclusion, thereafter.8 During the same period, fetal monitoring continued to reveal a reassuring fetal heart rate, with a fetal heart rate baseline in the 160s, with average long-term variability.9 Of note, Dr. Long wrote an Admit Note at 12:15 p.m., which stated: C[hief]/c[omplaint]/ A[utomobile]A[ccident] this AM H[istory] 31 y[ear] o[ld] G[ravida]3 P[ara]2 L[ast]M[enstrual]P[eriod] = 12-31-00 = EDC 10-8-01 [with] E[stimated]G[estational]A[ge]38 wks S[tatus]/P[ost] previous C[esarean]/S[ection] involved in single car A[utomobile]A[ccident] this AM [with] blunt trauma from steering wheel to abd[omen]. Pt was taken by rescue to Frazier Memorial Hosp where eval showed no evidence of sig[nificant] trauma but ? FHT to 80 B[eats]P[er]M[inute]. Pt sent to St V's by helicopter. On arrival here F[etal]H[eart]T[ones] in 150's. Pt c[omplained]/o[f] uterine c[ontraction] & vague discomfort. She has sl[ight] lower back pain. Fetus is active. No vag[inal] bleeding or ROM. P[ast]M[edical]H[istory] Migraines . . . Exam [Blood pressure] 131/86 [Pulse] 87 [Temperature] 99.2 {Respirations] 18 F[etal]H[eart]T[ones] 150-160's . . . Abd[omen] F[undal]H[eight][consistent with] term [gestation] Breech Sl[ightly] tender diffusely. C[ervi]x Post[erior] 1-2 [cm dilated] 30[% effaced] -3 [station] BR[eech] Ext(remities] w[ithin]n[ormal]l[imits] E[lectronic]F[etal]M[onitor] [shows] mild [every] 1-2 min ctx F[etal]H[eart]T[ones] 160. Ass[essment]: Previous C[esarean]/S[ection] at term; Breech; A[utomobile]A[ccident] with ? abruption. Plan: Will proceed with repeat C/S . . . (Exhibit 7; Exhibit 20, pages 40-42). Of further note, Dr. Long wrote an addendum at 12:40 p.m., which stated: Pt has had no urine output since admission. Foley has been replaced [with] only small am[ount] of blood tinged fluid. U[ltra]/S[ound] ? [shows] no fluid vis[ible] in bladder. * * * Ass[essment]: No urine output. Prob[able] adeq[uate] hydration R[ule]/O[ut] Bladder injury; R[ule]/O[ut] developing anemia ? hypovolemia ? ?U[rinary]O[utput]. Pl[an]: Will repeat CBC, PT PTT. Will proceed [with] C[esarean]/S[ection] & abd[ominal] exploration & eval[uation] g[enito]u[rinary] for poss[ible] trauma. With regard to Tristan's delivery, the medical records reveal that at 1:16 p.m., the operation started (the incision was made/delivery began); at 1:21 p.m. Mrs. Bennett's membranes were ruptured, with clear fluid noted; and at 1:22 p.m., Tristan was delivered without difficulty or trauma. Evidence of a partial placental abruption was noted. At delivery, Tristan did not cry, had minimal respiratory effort, and required resuscitation, with bulb, free flow oxygen, mechanical suction, and bag and mask ambu. Apgar scores of 6 and 8 were reported at one and five minutes respectively.10 Cord blood gas revealed profound metabolic acidosis, with an arterial cord pH of 6.76, PCO2 51.2, PO2 of 17, and a base excess (BE) of -28. Venous cord pH was reported as 7.18, PCO2 as 46.6, PO2 as 20 and BE as -10.3. Following delivery, Tristan was transferred to the newborn nursery, where she was received at 1:45 p.m., and placed on a heated warming table. Initial assessment noted slight wetness throughout lung fields, bilateral chest rise, tachypnea, no nasal flaring, occasional expiratory grunting, no retractions, pale pink color with slight acrocyanosis, and improving tone. Arterial blood gas collected at 1:47 revealed a pH of 7.14, PO2 of 90, PCO2 of 31.7, and BE of -16.4. Under the circumstances, Tristan was transferred to the special care nursery for further management, due to moderate respiratory distress and metabolic acidosis. Tristan was admitted to the special care nursery at 2:10 p.m., and placed on a radiant warmer. Initial assessment noted oxygen saturation (SaO2) at 97% on room air; color pale, pink; mild grunting, with slight retractions; and moderate lethargy. Tristan was provided respiratory support (NS bolus, free flow oxygen, and O2 via nc) and bicarbonate therapy; her respiratory distress and metabolic acidosis resolved fairly quickly; and by 9:30 p.m., her respiration was noted as unlabored, skin remained pale/pink, and she was sleeping quietly. Tristan's subsequent neonatal course The medical records related to Tristan's subsequent neonatal course reveal that prior to her pulmonary arrest on October 3, 2001, Tristan suffered from renal failure and acute tubular necrosis (ATN), with resulting oliguria, fluid retention, and hyponatremia; respiratory distress; elevated liver enzymes; and was placed on empiric antibiotics for possible sepsis. However, while Tristan's metabolic acidosis and multi-organ system failure support the conclusion she suffered a hypoxic ischemic insult before, during, and likely immediately following delivery, physician progress notes during the days following her delivery repeatedly document the absence of neurologic involvement or neurological damage. Pertinent entries read: [9/28/01] PE: pink, alert, active . . . appears clinically stable. [9/28/01 3:15 p.m.] Neuro grossly intact, symmetric exam, no focal deficits . . . Suspect renal failure/ATN, and probably . . . hyponatremia . . . Suspect must have suffered some asphyxia damage in MVA. [9/29/01 7:45 a.m.] Neuro-Active Alert . . . [9/30/01 5:30 p.m.] No evidence of CNS [central nervous system] dysfunction at present. [10/1/01 10:05 p.m.] Neuro grossly intact . . . (8)Asphyxia - infant [with] S[ymptoms] C[onsistent]/w[ith] asphyxial/hypoxic organ damage. Remains in ATN, oliguric phase, [with] blood, pro[ein] in urine. Creatinine cont to increase. LFT's also elevated, though actually improving. No other organ damage evident @ this time. * * * (10) CNS - No neuro abnormalities noted . . . . [10/2/01 11:45 a.m.] No focal neuro deficits, Active & Alert . . . . (8) Asphyxia: Multiorgan failure . . . . (10) CNS No obvious neuro abnormalities. [10/3/01 a.m.] #8 Asphyxia: Multiorgan involvement . . . . No evidence of CNS involvement. On October 3, 2001, at approximately 9:30 a.m., the Special Care Nursery Flow Sheet documents that Tristan suffered from a pulmonary hemorrhage, with frank blood noted orally, and a moderate amount of blood was suctioned by bulb. At 10:30 a.m., Tristan was noted to be apneic (not breathing), with a heart rate below 80 beats per minute and slowly decreasing; oxygen saturation (SaO2) was decreasing to the 40 percent (%) range; and a large amount of frank blood was noted coming from the mouth. At 11:00 a.m., Tristan was intubated, placed on a ventilator, and received transfusions of red blood cells and fresh frozen plasma beginning at 11:18 a.m. and 11:30 a.m., respectively. At 3:00 p.m., Tristan's heart rate was noted in the 40s, with saturations at 45%, and suctioning obtained a large amount of blood-tinged mucous. At 3:23 p.m., Tristan's heart rate was 53, saturations decreased from 40% to 23%, and CPR, with Ambu and chest comparisons, was begun. At 3:26 p.m., CPR was stopped; at 3:27 p.m., heart rate was noted at 77 and saturations at 68%; and at 3:29 p.m., heart rate was noted at 90, slowly increasing to 108, and saturations at 65%. Tristan's arterial blood gas collected at 3:34 p.m., showed a pH of 7.03 and a BE of -12.2. At 3:39 p.m., a large amount of thick, blood-tinged mucous was again suctioned, and at 3:43 p.m., more blood-tinged mucous was suctioned. At 3:48 p.m., Tristan's heart rate had decreased to 28, and her saturations to 39%. By 3:55 p.m., Tristan's heart rate had increased slowly to 66, and saturations to 50%, and at 3:57 Tristan's heart rate had increased to 132, and saturations to 89%. Arterial blood gas collected at 4:10 p.m., showed a pH of 6.88 and a BE of -23.5. Tristan remained critically unstable throughout the rest of the day and evening of October 3, 2001, and between 11:20 p.m., and 11:30 p.m., staff noted the likely onset of seizure activity ("Baby having stiffening of legs & arm trembling."). Physician's Progress notes document additional neurologic abnormalities following the October 3 arrest and resuscitation: [10/4/01 11:20 a.m.] Possible seizure last night . . . #10 CNS: Had no obvious CNS dysfunction till last night. [10/5/01 11:00 a.m.] CNS tremors on PB [Phenobarbital] . . . EEG in progress. Dr. Gama consulted office aware. ? Seizures Encephalopathy? (P) Neuro consulted . . . CT when stable. A neurological consult by Dr. Gama on October 5, 2001, describes Tristan's hospital course leading up to the October 3, 2001, arrest and then states: The baby developed thrombocytopenia and then progressively started bleeding with associated pulmonary bleeding. This was controlled with appropriate ventilatory support; however, a second episode of pulmonary hemorrhage occurred, this time associated with significant decline and requiring some resuscitation. This occurred on 10/3. The patient following this was noted to have some jerking movements of her extremities which were easily controlled with pressure. However because of her clinical decline, it was felt that this represented seizure activity. The baby was bloused with phenobarbital. The level was followed but because of recurrence of these symptoms, the patient was rebolused today. The patient's phenobarbital is 23 today. An electroencephalogram has been obtained but is still pending in its results. Neurologic consultation is obtained. * * * PHYSICAL EXAMINATION: The patient's examination demonstrates a head circumference of 33.5 cm. The baby is sedated, intubated, and with an umbilical catheter in place. The head demonstrates a normotensive anterior fontanelle. The sutures are unremarkable. There is some scalp edema secondary to slight fluid overload most likely secondary to her renal disease process. Pupils were 1 mm and equal. Doll's eyes were present. The patient's sucking reflex is decreased. Rooting reflex is decreased. She is intubated through her mouth. The patient's motor examination shows that she is floppy with decreased muscle tone throughout, retraction response is absent, head control is absent, motor reflex is absent. The baby withdraws extremities to touch. The deep tendon reflexes are hypoactive. Babinski could not be elicited. Palmar and plantar grasp are decreased. Spine shows no particular abnormalities . . . . IMPRESSION New onset seizures most likely secondary to multiple factors including: Status post pulmonary hemorrhage. Hypoxic ischemic encephalopathy. Metabolic as well as possible dysmorphogenic causes. Rule out central nervous system hemorrhage. Acute tubular necrosis secondary to hypotension, metabolic acidosis and possibly hypoxemia. Liver dysfunction. Disseminated intravascular coagulation. Status post metabolic acidosis. Status post hypertension. Status post maternal motor vehicle accident and trauma . . . . CT scan performed October 29, 2001, showed multicystic encephalomalacia of the cortex. EEG's performed October 5, 2001, October 8, 2001, October 17, 2001, and November 2, 2001, were all abnormal, showing background disorganization suggestive of diffuse cerebral dysfunction. Tristan was discharged home on November 14, 2001, with follow-up appointments with her primary care physician (Carithers Pediatrics), as well as nephrology (for renal status), neurology (Dr. Gama), and physical and occupational therapy. Thereafter, on November 27, 2001, Dr. Gama reported the results of a follow-up neurologic evaluation to Tristan's pediatrician (Dr. Julie Baker), and concluded: In general, it is my opinion that Tristan is status post severe perinatal distress with hypoxic ischemic encephalopathy, metabolic acidosis, associated with coagulopathy and complicated with one cardiac arrest requiring resuscitation while at the special care nursery. The result of all these complications is culminated with what appears to be a severe hypoxic ischemic encephalopathy with multicystic encephalomalacia and seizure disorder . . . (Exhibit 10). Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."11 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, it is undisputed that Tristan suffered brain injury, caused by oxygen deprivation, which rendered her permanently and substantially mentally and physically impaired. What must be resolved is whether the record supports a conclusion that, more likely than not, such injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. As to that issue, Petitioners were of the view that while Tristan may have suffered oxygen deprivation at St. Vincent's Medical Center between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved from labor and delivery to the operating room for a cesarean section delivery) and 1:22 p.m., September 26, 2001 (when Tristan was delivered), Mrs. Bennett was never in labor, and Tristan did not suffer neurologic injury or evidence profound neurologic impairment ("permanent and substantial mental and physical impairment") until after her pulmonary arrest on October 3, 2001. In contrast, NICA was of the view that Tristan's neurologic impairments resulted from a brain injury caused by oxygen deprivation (secondary to a partial placental abruption), that occurred following the automobile accident the morning of September 26, 2001, and prior to her transfer from Ed Fraser Memorial Hospital to St. Vincent's Medical Center, and that Mrs. Bennett was not in labor at the time. Finally, Intervenors were of the view that Tristan suffered a brain injury, and profound neurologic impairment, caused by oxygen deprivation at St. Vincent's Medical Center between 12:47 p.m. and 1:22 p.m., that Mrs. Bennett was in labor when the fetal monitor was disconnected, and that injury likely continued into the immediate postdelivery period. (Prehearing Stipulation). The statutory presumption Pertinent to this case, Section 766.309(1)(a), Florida Statutes, provides: . . . If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2). "Claimant," as that term is used in the Plan, is defined by Section 766.302(3), to mean: . . . any person who files a claim pursuant to s. 766.305 for compensation for a birth related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof. Notably, in this case it is not the Petitioners (Claimants) who seek the benefit of the presumption, but the Intervenors, who urge its application over Petitioners' objection. Consequently, it must be resolved whether any party, other than Petitioners (Claimants) may claim the presumption (i.e., that the injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period"). If so, it must then be resolved whether there was credible evidence produced to support a contrary conclusion and, if so, whether absent the aid of such presumption the record demonstrates, more likely than not, that Tristan's injury occurred during labor, delivery, or resuscitation.12 The ultimate goal in construing a statutory provision is to give effect to legislative intent. Bellsouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003). "In attempting to discern legislative intent, we first look to the actual language used in the statute." Id. at 289. "If the statutory language used is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent." Id. at 289. "Ambiguity suggests that reasonable persons can find different meanings in the same language." Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992). "[I]f the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words." Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002). Here, the language chosen by the legislative is clear and unambiguous. The presumption is for Petitioners' (Claimants') benefit, and is not available to aid other parties in satisfying their burden to establish that Tristan's brain injury occurred in the course of labor, delivery, or resuscitation. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal."). Moreover, there was credible evidence produced (in Tristan's medical records) to support a contrary conclusion, and to require resolution of the issue without regard to the presumption. The likely timing of the brain injury that rendered Tristan profoundly, neurologically impaired To address the cause and timing of Tristan's neurologic impairment, the parties offered the medical records related to Mrs. Bennett's antepartal course, as well as those associated with Tristan's birth and subsequent development. Additionally, the parties offered the deposition testimony of many of the health care providers who were involved with Mrs. Bennett's care on September 26, 2001, and Tristan's birth. Finally, the parties offered the testimony of four expert witnesses to support their respective positions. Offered by Petitioners was the testimony of Richard Fields, M.D., a physician board-certified in obstetrics and gynecology, and Norman Pryor, M.D., a physician board-certified in pediatrics and pediatric nephrology; offered by Respondent was the testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine; and offered by Intervenors was the testimony of Gary Hankins, M.D., a physician board-certified in obstetrics and gynecology and maternal-fetal medicine. Oddly, no party offered the testimony of a neurologist or neonatologist to address, apart from the observations of the health care providers who were involved in Tristan's care, the likely timing of the brain injury that rendered Tristan profoundly, neurologically impaired. The medical records, as well as the testimony of the physicians and other witnesses, have been thoroughly reviewed. Having done so, it must be resolved that the record developed in this case compels the conclusion that, more likely than not, Tristan suffered multi-system failure as a consequence of the oxygen deprivation she suffered between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved to the operating room) and 1:22 p.m. (when Tristan was delivered), that likely continued during the immediate postdelivery resuscitative period. However, it is unlikely Tristan suffered a brain injury or substantial neurologic impairment until after she experienced profound episodes of oxygen deprivation on October 3, 2001, following the onset of pulmonary hemorrhaging and pulmonary arrest. In so concluding, it is noted that Tristan was delivered atraumatically, she responded rapidly to resuscitation immediately after delivery, her neurologic examinations during the first seven days of life were normal, she suffered prolonged and severe decreases in fetal heart rate and saturations on October 3, 2001, she manifested prolonged and severe acidosis following her arrest, and she evidenced seizure activity and neurologic decline thereafter. Given the proof, it is likely, more so than not, that Tristan's profound neurologic impairments resulted from a brain injury caused by oxygen deprivation that occurred October 3, 2001, and not during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Consequently, Tristan was not shown to have suffered a "birth-related neurological injury" as defined by the Plan, and the claim is not compensable. § 766.302(2), Fla. Stat. See also Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words written, the oxygen deprivation or mechanical injury must take place during labor and delivery, or immediately afterward."). The notice issue Apart from contesting compensability, Petitioners also sought the opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions were not satisfied by the health care providers. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the hospital and the participating physician complied with the notice provisions of the Plan. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 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."). Accord 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."); 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). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[13] 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 brocure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients.14 (Exhibit 4 to Exhibit 25). Findings related to notice Mrs. Bennett received her prenatal care at St. Vincent's Division I, one of a number of offices in the Jacksonville area operated by North Florida OB/GYN, a group practice comprising numerous physicians. At the time, three obstetricians who delivered babies were on staff at St. Vincent's Division I: Dr. William Long, Dr. Thomas Virtue, and Dr. Scott Wells. Dr. Long, who had delivered Mrs. Bennett's two previous children (boys, born in 1993 and 1997), was Mrs. Bennett's primary ob/gyn. However, as a group practice, all physicians rotated delivery calls at the hospital, so it was possible another physician would participate in the delivery. Consequently, a patient commonly saw all the delivering physicians during prenatal care. Notably, all physicians associated with the St. Vincent's Division I, who delivered babies, were participating physicians in the Plan. On February 5, 2001, Mrs. Bennett presented to St. Vincent's Division I for her initial prenatal visit. At the time, consistent with established routine, Kathryn Becker, R.N., the OB care coordinator, met with Mrs. Bennett to discuss her case, take a patient history, and provide her with a number of forms to complete and sign, including: a Consent for Obstetrical Delivery form; Florida's Healthy Start Prenatal Risk Screening Instrument; a Consent for Human Immunodeficiency Virus form; a Genetic Screening Supplement; and a Notice to Obstetric Patient form (to acknowledge receipt of the NICA brochure) and a NICA brochure. The Notice to Obstetric Patient provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by North Florida OB/GYN prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that they are a participating practice in the program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 2001. Attest: ____ Signature of Patient Nurse/Physician (Name of Patient) Printed Date: Social Security Number Witness to Signature Mrs. Bennett signed the form, acknowledging receipt of the NICA brochure and Nurse Becker witnessed her signature. Here, there is no dispute that Mrs. Bennett signed the Notice to Obstetric Patient or any debate that she received a copy of the NICA brochure on her initial visit. Rather, what is at issue is whether the form, which provides "I have been furnished information by North Florida OB/GYN prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that they are a participating practice in the program," coupled with what Mrs. Bennett was told during her initial visit, was adequate to place Mrs. Bennett on notice that Dr. Long was a participant in the Plan. As described by Nurse Becker, during the course of the initial visit, her custom and practice when discussing NICA was to inform the patient that "all of the doctors in our practice that deliver babies participate" and then "explain the pamphlet . . . [,] point out the information inside, that it tells them briefly about it [,and] [t]he back tells them who it's with and how to contact them." Here, Nurse Becker is confident she followed her routine, since she witnessed Mrs. Bennett's signature on a number of documents, including the Notice to Obstetric Patient, and documented her routine through an entry on the ACOG Antepartum Record. That entry read "NOB [new obstetric] Interview [with] PNV, PNL, Consents, NICA, Healthy Start, prentatal education & literature completed; PTL, SAB & safety info given." (Exhibit 25, pages 6, 15, and 39; Exhibit 1 to Exhibit 25). Giving due consideration to the proof, it must be resolved, contrary to Petitioners' view, that the Notice to Obstetric Patient, although it did not specifically name St. Vincent's Division I, was not misleading, and that when coupled with Nurse Becker's disclosure that "all of the doctors in our practice that deliver babies participate," was adequate to place Mrs. Bennett on notice that all physicians at that office who delivered babies participated in the Plan. In so concluding, it is noted that Mrs. Bennett had been a patient of Dr. Long's for an extended period, that all her prenatal care was at St. Vincent's Division I, and the only logical conclusion a reasonable person could draw from receiving this information was that Dr. Long and the other physicians in the office who did deliveries were participating physicians. Accordingly, the proof demonstrates Dr. Long satisfied the notice provisions of the Plan. See Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 932 So. 2d 1125 (Fla. 5th DCA 2006). In all, Mrs. Bennett had 14 prenatal visits at St. Vincent's Division I, with the last two being on September 18 and 24, 2001. Of note, on September 18, 2001, Mrs. Bennett, who had a previous cesarean section (with her second child) and presented with a breech, voiced her election to proceed with a repeat cesarean section. Accordingly, she met with staff at St. Vincent's Division I that day, staff coordinated with St. Vincent's Medical Center, and surgery was scheduled for October 3, 2001. Notably, there is no proof that at any time prior to her admission of September 26, 2001, Mrs. Bennett visited or otherwise contacted St. Vincent's Medical Center. At or about 9:59 a.m., September 26, 2001, Mrs. Bennett was admitted to labor and delivery at St. Vincent's Medical Center for monitoring, and at or about 11:20 a.m., she was formally admitted. At that time, her attending nurse, Christine May, R.N., provided Mrs. Bennett with a number of forms to sign, including a Consent to Anesthesia, Parental Acknowledgment of Preventative Safety Measures, and a Notice to Obstetric Patient (to acknowledge receipt of the NICA brochure) and a NICA brochure. The Notice to Obstetric Patient provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by St. Vincent's Medical Center prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Dr. Long[15] is a participating physician in the program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 2001. Signature of Patient (Name of Patient) Printed Social Security Number Witness to Signature Attest: Nurse or Physician Date: Mrs. Bennett signed the form, acknowledging receipt of the NICA brochure, and Nurse May witnessed her signature. Here, Petitioner contends that "[g]iven the fact that Mrs. Bennett had pre-registered for her scheduled cesarean section delivery, it was practicable for St. Vincent's Medical Center to have given Mrs. Bennett notice of NICA participation prior to two hours before delivery." Therefore, Petitioners conclude, "St. Vincent's Medical Center failed to comply with the notice provisions of the Plan." (Petitioners' Proposed Final Order on Compensability and Notice, paragraph 54). However, as previously noted, the scheduling of Mrs. Bennett's cesarean section with St. Vincent's Medical Center was done by staff at St. Vincent's Division I, and there is no proof that Mrs. Bennett visited or had any contact with St. Vincent's Medical Center. Accordingly, the notice provided Mrs. Bennett on September 26, 2001, was timely, as prior notice was not practicable.16
The Issue Whether Petitioners' claim qualifies under the Florida Birth-Related Neurological Injury Compensation Plan. See § 766.309(1)(a) and (b), Fla. Stat.1 Whether notice was accorded the patient (mother) by the healthcare providers, as contemplated by Section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an emergency medical condition, as defined in Section 395.002(8)(b), Florida Statutes, or the giving of notice was not practicable.2
Findings Of Fact Krystle-Lyn Arens is the natural mother of Logan Allgood. Keith Allgood is the natural father of Logan Allgood. Logan Allgood was born a live infant on September 2, 2005. Logan Allgood was born at LRMC. There is no dispute that LRMC paid the money and filed its required paperwork in accordance with the NICA Plan so that it constitutes a licensed Florida hospital that is "covered" by the NICA Plan. Logan Allgood's birth weight was 3,963 kilograms.5 Jeffrey Puretz, M.D., delivered obstetrical services in the course of labor, delivery, and resuscitation in the immediate post-delivery period in a hospital. Moreover, there is no longer a dispute among the parties that at all times material, Dr. Puretz and Patricia Richey, ARNP/CNM, were "participating physicians" in the NICA Plan, as defined by Sections 766.302(7) and 766.314(4)(c), Florida Statutes. At all times material, Jeffrey Puretz, M.D., was employed with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. Dr. Puretz provided Ms. Arens a NICA acknowledgment form bearing the Lakeland OB/GYN P.A. letterhead, more than a week after Logan Allgood was born, and Ms. Arens signed it. No party contends that this document or a contemporaneous provision of information about NICA is sufficient pre-delivery notice by which Ms. Arens could make an informed choice of physician or hospital prior to Logan's birth. The exhibits herein show that Logan Allgood suffered a hypoxic ischemic event which occurred in the course of labor and delivery. Each party has stipulated or does not contest that Logan Allgood suffered a "birth-related neurological injury," as defined in Section 766.302(2), Florida Statutes, or that the Order entered herein on April 1, 2009, determined that Logan had suffered a "birth-related neurological injury."6 Lakeland OB/GYN, P.A., does business in its own name, housing its medical physicians specializing in obstetrics, at 1733 Lakeland Hills Boulevard, and does business as Central Florida Women's Care in a separate building located four blocks further south at 1525 Lakeland Hills Boulevard, where it houses its certified nurse midwives. Physicians supervise the midwives on a rotating basis. On January 17, 2005, Ms. Arens, who was then age 15 and who had just learned she was pregnant, went with her mother and her child's father to Central Florida Women's Care. This was her first and only contact with either Central Florida Women's Care or Lakeland OB/GYN, P.A., prior to her arrival at the hospital, LRMC, for a full-term delivery on August 30, 2005. She had no appointment, and was told that in order to be seen by a midwife or physician, the provider required that she be interviewed and fill out and sign specific forms. On January 17, 2005, at Central Florida Women's Care, while her mother and Mr. Allgood waited elsewhere in the building, Ms. Arens was interviewed by a licensed practical nurse, Betty Kelly, LPN. Ms. Arens experienced no "hands on" examination by anyone on that date, but she did fill out or provide information for many patient forms, including a genetic screening and infection screening. In Central Florida Women's Care's file, there is an initial physical examination sheet, which is essentially an oral medical history and status provided by Ms. Arens and written down by her or Nurse Kelly. It is not the result of a "hands on" examination, but it may have involved Ms. Arens being weighed. There are notes about plans to bottle- feed her baby; her current medications; her asthma; and her relatives' health issues. There are signed rejections by Ms. Arens of HIV and CF testing. The HIV and CF forms name Central Florida Women"s Care as "a Division of Lakeland OB-GYN, P.A." Ms. Kelly gave her a prescription for prenatal vitamins. Ms. Arens also executed an acknowledgment of receiving a NICA brochure explaining her rights under NICA. The NICA acknowledgment form that Ms. Arens signed, dated, and placed her social security number on at Central Florida Women's Care on January 17, 2005, bore the Central Florida Women's Care letterhead and read: NOTICE TO OBSTETRIC PATIENT RE: NICA PARTICIPATION I have been furnished information by Central Florida Women's Care, prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Drs. Alvarez, Puretz, Damian, Caravello, & Nixon and the midwives associated with their practice: Jill Hendry, Patricia Richey, Joan Bardo, Pam Barany and Sheri Small participate in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), 1435 Piedmont Drive East, Suite 101, Tallahassee, Florida 32312 telephone number 1 (800) 398-2120. I further acknowledge that I have received a copy of the brochure prepared by NICA. (Emphasis added). This form also shows Betty Kelly's signature as witnessing Ms. Arens' signature. Both women acknowledged their signatures. Ms. Arens also acknowledged writing in the date and her social security number, but she could not remember if she received a NICA pamphlet that day or not. According to Ms. Arens, although she was a minor, her mother let her sign all her own papers throughout her pregnancy. On January 17, 2005, Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care did not bill until a patient was seen by a nurse midwife or medical physician. Ms. Arens left Central Florida Women's Care without seeing one of those professionals. A few days later, she decided not to return because she had decided she wanted physicians, not midwives, overseeing her prenatal care and delivery. (NICA Exhibit 13, page 9). She did not fail to make a another appointment with Central Florida Women's Care because of an informed choice to select a non-participating physician or because of an informed choice to avoid NICA's limitations. Ms. Arens obtained pre-natal care from late January 2005, until May or June 2005, from Exodus Women's Center, a practice unaffiliated with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. Whether or not members of Exodus were NICA participants does not appear in this record. Ms. Arens testified she left Exodus because she wanted a perinatologist. However, the next and last physician Ms. Arens consulted for prenatal care, Dr. Hamagiri Ravi, testified that she was not a perinatologist, and Ms. Arens' mother testified that she, the mother, had selected Dr. Ravi, because Dr. Ravi accepted Medicaid patients, such as Ms. Arens, and would see Ms. Arens quickly. There is no evidence Ms. Arens left Exodus to avoid NICA's limitations. Approximately three months before Logan's birth, Ms. Arens presented to Dr. Ravi to provide her prenatal care. Dr. Ravi is a non-participating physician. Dr. Ravi does not deliver babies. She also does not have privileges at any hospital or provide NICA brochures or counseling. On the first visit, Dr. Ravi has each of her patients sign a document acknowledging that Dr. Ravi will not be her delivering physician. Ms. Arens signed such a form, which read: To whom it may concern This is to inform you that I am very happy to be taking care of all of your prenatal needs at this office. However, I will not be your delivering physician. At the time of delivery you will go to the hospital of your choice to be delivered by the doctor on call. A copy of your records will be provided to you to preregister at the hospital of your choice. For your C-section needs, alternate measures will be arranged with a different physician. By signing below, you agree with the above conditions of prenatal care. Ms. Arens did not pre-register with any hospital for delivery of her child, who was due on August 30, 2005. On August 30, 2005, her due date, Ms. Arens and her mother went to Dr. Ravi's office. Dr. Ravi documented Ms. Arens' blood pressure as elevated to 140/80. Ms. Arens also was suffering from edema, and tests determined there was protein in her urine elevated to +3. Dr. Ravi contacted the obstetrician on-call at LRMC's emergency room and told him Ms. Arens was coming in. She told Ms. Arens to go straight to the LRMC emergency room for evaluation in a hospital setting and for possible induction of labor. Ms. Arens was stable when she left Dr. Ravi's office, but she expected that her child would be delivered when she got to the hospital. Ms. Arens presented to LRMC's emergency room at approximately 5:00 p.m., on August 30, 2005. She was seen in the emergency room by the physician who had relieved the physician to whom Dr. Ravi had spoken by telephone. When Ms. Arens presented to LRMC’s emergency room on August 30, 2005, she had proteinuria and elevated blood pressure. Vaginal examination revealed slight dilation, slight minimal effacement, and no vaginal bleeding. Her water had not yet broken and her membranes were not ruptured. Ms. Arens was not yet in labor. However, Ms. Arens' blood pressure was measured in LRMC's emergency room as 153/76. Lab work was begun. (Emergency Room records). At approximately 6:30 p.m., on August 30, 2005, Ms. Arens was moved to LRMC's labor and delivery floor for continued evaluation, including urine tests. On the labor and delivery floor, she was immediately seen by LRMC's Patient Access Representative, Kim Lepak. Ms. Lepak's normal routine was to provide each new patient with a packet of information specific to that patient's situation. Part of Ms. Lepak's responsibilities included providing each new obstetric patient with a packet that includes a Privacy Act explanation, a Patient's Rights form, and the NICA brochure. Ms. Lepak was also responsible for obtaining the patient's signature on forms that included assignment of benefits, releases, acceptance of financial responsibility, permission for treatment, and a form acknowledging that the patient had received the explanatory NICA brochure. LRMC's NICA acknowledgement form was signed by both Ms. Arens and Ms. Lepak, and dated August 30, 2005. It reads: RECEIPT ACKNOWLEDGMENT OF FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION INFORMATION (See Section 766.316, Florida Statutes) I have been furnished information by Lakeland Regional Medical Center prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that my doctor and all nurse midwives associated with my doctor's practice participate in the Florida Birth Related Neurological Injury Compensation program, wherein, certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), 1435 East Piedmont Drive, Suite 101, Tallahassee, Florida, 32312, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. (Emphasis added) Ms. Lepak testified that the form also bore an LRMC stamp that had been applied in the emergency room, showing Ms. Arens was assigned by LRMC to CNM Joan Bardo on the labor and delivery floor. LRMC required all physicians and CNMs practicing at LRMC to be NICA "participating physicians," and CNMs were assigned by the hospital on 24-hour shifts in 2005. On their shifts, physicians were on-call, usually in the hospital. Dr. Puretz testified that under these conditions he and his practice rely on the hospital to notify patients of the NICA provisions. Ms. Arens and Ms. Lepak did not specifically recall whether Ms. Arens received the NICA brochure, but both identified their signatures on the acknowledgment form. Ms. Lepak testified that, based on her routine procedure, she would have presented the pamphlet to Ms. Arens, watched Ms. Arens sign the acknowledgment, and finally Ms. Lepak would have signed as a witness to Ms. Arens' signature and added her own witness information after Ms. Arens had signed. On the labor and delivery floor, during August 31, 2005, Ms. Arens' blood pressure readings ran mostly in the 130's/80's, and her urine was monitored. Joan Bardo, CNM, was practicing with Lakeland OB/GYN, P.A., d/b/a Central Florida Women's Care. (See Finding of Fact 16). Nurse Bardo was Ms. Arens' "attending physician" upon Ms. Arens' admission to LRMC's labor and delivery floor sometime around 6:30 p.m., August 30, 2005. Ms. Arens did not begin labor on Nurse Bardo's shift, which ended at 8:00 a.m., August 31, 2005, when she was relieved by Sheri Small, CNM. Sheri Small, CNM, relieved Nurse Bardo. Nurse Small was also practicing with Lakeland OB/GYN P.A. d/b/a Central Florida Women's Care. (See Finding of Fact 16). According to Ms. Small's notes on August 31, 2005, Ms. Arens was administered cervidil to induce labor and on September 1, 2005, was administered pitocin to induce labor. Patricia Richey, CNM, also practiced with Lakeland OB/GYN, d/b/a Central Florida Women's Care in 2005. (See Finding of Fact 16). When she came on the floor at 7:00 a.m., on September 1, 2005, she relieved Nurse Small. Nurse Richey was assigned by LRMC to render care to Ms. Arens. At 10:30 a.m., September 1, 2005, Ms. Arens' contractions were noted by Nurse Richey to be frequent but difficult to monitor. During the last part of Nurse Richey's 12-hour shift, Dr. Puretz, also of Lakeland OB/GYN (see Finding of Fact 16), was her supervising physician. He came on-call in the hospital, beginning between 6:30 and 7:00 p.m., on September 1, 2005. At 2:08 a.m., on September 2, 2005, Ms. Arens was completely dilated and pushing began with contractions every two minutes. At 4:35 a.m., September 2, 2005, Nurse Richey called Dr. Puretz to assist with delivery. Fetal heart tones had increased to 170-180 beats per minute. At 4:45 a.m., September 2, 2005, Nurse Richey notified Dr. Puretz of Ms. Arens' progress and requested evaluation for possible vacuum extraction. Care of Ms. Arens was transferred to Dr. Puretz at approximately 5:00 a.m., September 2, 2005. At that time, he documented that Ms. Arens had a 101-degree temperature and her unborn baby was experiencing mild fetal tachycardia. This was the first time Ms. Arens and Dr. Puretz had been in each other's presence. Upon examination, Ms. Arens was fully dilated. There was an arrest of descent. The baby was wedged in her pelvis. At 5:10 a.m., September 2, 2005, Dr. Puretz evaluated Ms. Arens, and elected to do a Caesarian section delivery, believing that vacuum extraction was not prudent. At 5:35 a.m., September 2, 2005, Ms. Arens was moved, under Dr. Puretz' care, to an operating room, and at 6:15 a.m., Logan was delivered. (See Finding of Fact 10).
