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 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).
Findings Of Fact Based upon the evidence adduced at the July 14, 1993, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made: Kathleen Behan is the natural daughter of Mary Lou and Gerald Behan. She was born on November 30, 1989, at Plantation General Hospital in Broward County, Florida. Her birth weight was in excess of 2500 grams. Kathleen was delivered by caesarian section performed by the family's obstetrician, Mariano J. Rodriguez, Jr., M.D., after her mother had experienced a spontaneous rupture of the fetal membrane. At the time of Kathleen's birth, Dr. Rodriguez was a participant in the Florida Birth-Related Neurological Injury Compensation Plan. Kathleen had an Apgar score of 6 one minute after birth and an Apgar score of 9 five minutes after birth. Apgar scores reflect the attending physician's or nurse's assessment of the newborn infant's well-being based upon clinical observations regarding the infant's heart rate, respiratory effort, color, muscle tone, and reflexes. The higher the score, the greater the state of well being. The highest score attainable is a 10. Apgar scores are commonly used to determine if a newborn infant has suffered a neurological injury of a substantial and permanent nature during labor or delivery or in the immediate post-delivery process. Kathleen's Apgar scores are not consistent with her having suffered such a birth-related injury. After her condition was evaluated, Kathleen was taken from the delivery room to Plantation's "well-baby" nursery. She remained there without incident until December 2, 1989, when she was found asystolic in her crib after having experienced an acute life-threatening event or ALTE. Kathleen was resuscitated and survived the incident. She, however, has neurological impairment. The neurological impairment from which she now suffers was not the product of oxygen deprivation or mechanical injury that occurred during labor or delivery or in the immediate post-delivery period.
The Issue Whether Samuel J. Anderson, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physicians provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2004), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2004), or the giving of notice was not practicable.2 Whether Certified Nurse Midwife (CNM) Christine Hilderbrandt was a "participating physician," given the requirements of Sections 766.302(7) and 766.314(4)(c) and (d), Florida Statutes.
Findings Of Fact Stipulated facts related to compensability Allison Anderson and Timothy Anderson are the natural parents of Samuel J. Anderson, a minor. Sam was born a live infant on July 29, 2004, at Helen Ellis Memorial Hospital, a licensed hospital located in Tarpon Springs, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Sam's birth by Matthew Conrad, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Sam's birth and neonatal course4 At or about 3:30 a.m., July 29, 2004, Mrs. Anderson, with an estimated delivery date of July 30, 2004, and the fetus at 39 6/7 weeks' gestation, presented to Helen Ellis Memorial Hospital complaining of uterine contractions. Notably, vaginal examination at 4:30 a.m., revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high; uterine contractions were noted as irregular (inconsistent with active labor); and external fetal monitoring was reassuring for fetal well-being, with a baseline of 130 beats per minute. At 5:30 a.m., the on-duty nurse reported Mrs. Anderson's condition by telephone to Christine Hilderbrandt, R.N., the certified nurse-midwife (CNM) managing Mrs. Anderson's care. CNM Hilderbrandt gave orders to continue monitoring, and at 6:15 a.m., the fetal heart rate (FHR) was noted as reactive, and uterine contractions were again noted as irregular. At 9:00 a.m., CNM Hilderbrandt was noted at bedside, and examined Mrs. Anderson. At the time, vaginal examination revealed the cervix at 2 centimeters dilation, 50 percent effacement, and the fetus high; the cervix was noted as very soft; and fetal heart rate remained reassuring. A report was called to Matthew Conrad, M.D., the on-call physician, who authorized augmentation of labor, with pitocin. Pitocin induction was started at 9:45 a.m.; onset of labor was called at 3:45 p.m.; epidural bolus was given at 4:14 p.m.; spontaneous rupture of the membranes, with clear fluid, was noted at 4:15 p.m.; and complete cervical dilation was noted at 5:50 p.m. In the interim, at 4:40 p.m., variable decelerations to the 70-beat per minute range were noted, with contractions, and Mrs. Anderson was given oxygen by mask. Thereafter, variables were noted as minimal, with a baseline in the 140s, and a decline to the 110s to 120s, with prompt return to baseline. However, at 6:20 p.m., the fetal heart monitor showed the onset of severe bradycardia, when Sam's heart rate dropped to the 70s for 20 seconds, with a brief return to baseline; then at 6:21 p.m., dropped to the 70s for 90 seconds, and returned to baseline for 10 seconds; and at 6:22 p.m., dropped to 75 for 4 minutes and 40 seconds. The fetal monitor was disconnected at 6:27 p.m., and Mrs. Anderson was moved to the operating room (OR) for an emergency cesarean section. In the interim, at 6:26 p.m., Dr. Conrad was paged. Dr. Conrad entered the operating room at 6:47 p.m., to find the patient prepared and draped for cesarean section; rapid sequence induction (RSI) of anesthesia was accomplished at 6:48 p.m.; the operation started (the incision was made/delivery began) at 6:49 p.m.; and Sam was delivered at 6:50 p.m. Dr. Conrad's Operative Report documented his findings, as follows: Upon entering into the abdominal cavity, a gush of blood was observed. The infant was discovered floating freely in a puddle of blood behind the uterus along with the placenta and the umbilical cord. The infant was delivered at 18:50, completely flaccid, and passed on to an awaiting Neonatologist for resuscitation. The anterior surface of the uterus was intact but was remarkable for scarring of the bladder flap to the lower uterine segment along an indentation line, especially at the left corner, consistent with a previous transverse Cesarean Section. The posterior surface of the uterus was blown apart with a 15 cm circular rent extending to and including the left lateral vessels, the left round ligament, and extending down the left side of the cervix to an apex approximately 2 cm above the external os. Multiple bleeding sites, including the left uterine artery and vein, were gushing blood on entry. The left broad ligament was mangled and shredded. The defect in the posterior wall of the uterus was irregular with a shredded border and extended inferiorly to a position near the internal os of the cervix. This hole was measured to be approximately 15 cm in diameter. * * * The bleeding was quickly controlled by the application of clamps on the offending vessels and a transfusion of packed red blood cells begun. Careful examination of the defect was performed with the findings as noted above. The defect included nearly the entire back wall of the uterus to the level of the internal os which is to say that the uterine fundus was half amputated from the cervix by force of the trauma. Additionally, the edges of the defect were shredded. My conclusion was that this uterus was damaged beyond repair and the decision to proceed to supracervical hysterectomy was made . . . . Of further note, at delivery, a true knot was observed in the umbilical cord. Dr. Conrad's preoperative diagnosis was fetal distress, and his postoperative diagnosis was ruptured uterus. At delivery, Sam was flaccid, with no respiratory effort or spontaneous movement. Delivery room resuscitation included positive pressure ventilation (PPV) by bag and mask followed by intubation at 4 minutes of age for persistent apnea. Very infrequent gasping respirations stated at approximately 30 minutes of age, with sustained respiration after 60 minutes of age. Apgar scores were recorded as 3, at one, five, ten, fifteen, twenty, twenty-five, and thirty minutes.5 Cord blood gases were not obtained. Following resuscitation, Sam was moved to the newborn nursery and placed on a ventilator (full ventilatory support with a endotracheal intubation). Sam was diagnosed with perinatal depression/severe hypoxic-ischemic encephalopathy (HIE) secondary to uterine rupture, metabolic acidosis, and noted to be in critical condition. At 7:55 p.m., the Tampa General Hospital transport team, which had been requested while Sam was being resuscitated in the OR, arrived at Helen Ellis Memorial Hospital to assume responsibility for Sam's care, and transported him (via helicopter) to the neonatal intensive care unit (NICU) at Tampa General Hospital. Sam was admitted to Tampa General Hospital at 9:20 p.m., July 29, 2004. Initial examination revealed a hypotonic baby, with decreased tone, with no papillary or gag reflex, who only responded to painful stimulation, and who was intubated and "seizing" ("lip smacking, twitching of the face, later with tonic clonic seizures"). Sam was started on phenobarbital. CT of the head (CT) on July 29, 2004, was read as follows: There is incomplete definition of the gray and white matter borders with areas of low attenuation suggesting diffuse cerebral edema. The cisterns are patient. No hydrocephalus is identified. There is prominence of the falx with no definite blood identified. Follow up is recommended. IMPRESSION: Geographic low attenuation suspicious for diffuse cerebral edema. Follow up or correlation with ultrasound examination may be beneficial. Prominence of the falx with no definite acute hemorrhage identified. An Electroencephalogram (EEG) on July 30, 2004, showed a low-voltage background without seizure activity. The results of the EEG and a neurologic consult were reported in the Consultation Report, as follows: . . . The baby was examined shortly after EEG was completed. During the entire EEG, there were intermittent twitching of lower extremities or lower face including mouth and one or both of the lower extremities. When the twitching extremity is restrained, the twitching stops, but also can be brought on by stimulation. The baby is not responding in any purposeful manner to stimulation. However, the baby does open the eyes and at times appears that it is spontaneous, but most of the time there is upper eyelid twitch and it is possible that the twitching pulls the upper eyelid up and eyes open. The pupils are small, about 1 to 2 mm and reactive to light. Corneal reflex is present, but sluggish and eyes move very slowly to doll's eye maneuver. Gag is absent, but at the time of mouth twitching, the twitching is transmitted to the palate. On examination of neuromuscular system, muscle bulk is normal, tone is decreased and there is no meaningful spontaneous movements and no purposeful movements to stimulation. The only movements that are present are intermittent twitching of either one or both feet at the same time. Deep tendon reflexes are brisk mainly in the legs, 3+. There are no rashes, no organomegaly and there is no obvious injury to the body. IMPRESSION: This is a one-day-old baby with hypoxic ischemic encephalopathy likely caused by uterus rupture. The present twitching does not represent epileptic seizures. EEG showed no correlation between the movements and EEG abnormalities. Actually the EEG is quite severely depressed. The twitching which involves the lower extremity and mouth most likely represent brain stem phenomenon and for such phenobarbital is usually not helpful. RECOMMENDATIONS: Stop phenobarbital. As long as the movements do not interfere with vital signs, no treatment is indicated. The prognosis for neurological improvement is guarded at this time. Should any new developments occur, please reconsult neurology. Seizure activity did not continue beyond the day of admission, and phenobarbital was discontinued on July 31, 2004. A repeat EEG on August 2, 2004, was severely abnormal because of depressed cerebral activities with pattern reminiscent of burst suppression. A repeat CT scan of August 3, 2004, showed little change from the previous study. That scan was reported, as follows: The ventricles appear symmetrical and midline. There is no mass effect. There is mild prominence of the falx which is not as prominent when compared to the prior study and I suspect is within normal limits for this patient. There is poor gray/white matter differentiation which may be partly due to the patient's age. Edema cannot be completely excluded and correlation with MRI is suggested. There is questionable area of low attenuation in the left occipital region, again which is nonspecific. No new hemorrhage identified. IMPRESSION: Overall little change since the prior study. There is mild prominence of the falx, however, it is not as prominent when compared to the prior study and this may be within normal limits for this patient. Poor gray/white matter differentiation which may be partly due to patient's age and degree of brain myelination. Areas of low attenuation in the left occipital region. Further evaluation with MRI is suggested. No MRI evaluation was performed. On August 23, 2004, Sam was transferred to the Neonatal Intensive Care Unit at St. Joseph's Women's Hospital for fundoplication and G-tube insertion. The Transfer Note documented the following pertinent findings: Physical Exam Upon Discharge . . . General: sleeping, NAD, not arousable, large infant . . . Lungs: coarse breath sounds bilat, poor air entry . . . Neuro: -moro, -gag, sluggish papillary reflex, responds to touch, -spontaneous movement, -spontaneous eye opening Skin: -rashes, -jaundice . . . Respiratory: Pt had respiratory distress upon delivery and was intubated at Helen Ellis prior to transfer. Initial ABG showed pH 7.23. Pt was extubated to CPAP on DOL 1. Pt was weaned to RA by DOL 5 but due to aspiration pneumonia, pt was placed back on CPAP for 3 days on DOL 11. Pt has been weaned to RA and is currently stable with oxygen saturations 88-100% on RA. Pt requires frequent suctioning and repositioning to maintain his airway. CXR performed on DOL 18 showed significant improvement in pneumonia . . . GI: Pt was noted to have increased tracheal secretions after feeds were increased to 15 ml q 3 hours which was suggestive of reflux. Pt was also noted to have aspiration pneumonia on DOL 11 therefore GI was consulted for GERD and swallowing workup. A pH probe showed significant GERD, gastric emptying study showed dysmotility and severe reflux. Swallowing study showed no[] oral pharyngeal movement with feeds suggesting inability to take po feeds. It was discussed with the family and GI to plan for a Nissen Fundoplication with G/Tube placement at St. Joseph's Hospital by Dr. Martinez . . . Neurologic: . . . Pt. has continued to have significant neurological damage without improvement since initial admission . . . . The fundoplication and G-tube insertion occurred at St. Joseph's Women's Hospital on August 25, 2004. Otherwise, Sam's hospital course was summarized in his Discharge Summary (of September 2, 2004), as follows: Neurology: Admission EEG did not show evidence of seizure activity. Phenobarbital had been discontinued at Tampa General Hospital. The infant is hypertonic and has no gag or apparent swallow. He has significant encephalopathic changes consistent with a hypoxic ischemic insult. Occupational Therapy and Physical Therapy were consulted for evaluation. They recommended hand splints. Pediatric Neurologist had been following this infant's care at Tampa General Hospital. They will resume care when he gets back there. Respiratory: Sam has occasional desaturations which clear with suctioning of the oropharynx and nasopharynx. He does not appear able to handle his oral secretions. There is no current plan for tracheostomy to aid in the management after he goes home. This will be re-evaluated at Tampa General Hospital. Sam's subsequent medical care Sam was readmitted to Tampa General Hospital on September 2, 2004, and discharged to his parent's care on September 8, 2004. Physical examination on discharge noted: General: awake, no acute distress HEENT: NCAT, AFOSF, eyes deviated upward with moving eye movements * * * Lungs: coarse transmitted upper airway sounds bilaterally, good air movement Abdomen: soft NT/ND, G-tube well-healed, abdominal incision well-healed * * * Extremities: decreased range of motion throughout Neuro: increased tone in all extremities, severe head lag, no gag reflex or papillary reflex Skin: no rashes or jaundice Diagnoses included perinatal asphyxia/severe hypoxic-ischemic encephalopathy, and severe gastroesophageal reflux with dysmotility, status post (s/p) fundoplication and G-tube. On November 27, 2004, Sam, aged 4 months, was admitted to Mease Countryside Hospital because of an episode of apnea (for 50 seconds) and acute bronchiolitis, and transferred the same day to All Children's Hospital for further management. While at All Children's Hospital, tracheostomy was performed because of inability to swallow and for better airway management. CT of the brain on November 27, 2004, was reported, as follows: IMPRESSION: Bilateral symmetric mild dilatation of the lateral ventricles. Moderate dilatation of the third ventricle. Probable bilateral symmetric thalamic calcifications. Bilateral opaque mastoid air cells. Findings: There is a mild dilatation of both right and left lateral ventricles. This lateral ventricular dilatation is fairly symmetric and greatest in the frontal horns and anterior bodies of the lateral ventricles. Occipital horns and temporal horns are nor [sic] definitely abnormally dilated. There is a mild prominence of the temporal tips. There is moderate dilatation of the third ventricle. There is probable bilateral thalamic calcification which is symmetric. The differential of basal ganglial calcification is extensive. Brain radiodensity is otherwise unremarkable. On November 28, 2004, an EEG study was done, and interpreted by Joseph Casadonte, M.D., a physician board- certified in neurology, with special competence in child neurology, as follows: Impression: Markedly abnormal EEG recording, significance level III: Generalized slowing and disorganization of the background. Increase discontinuity for age. Hemispheric asymmetry. Multifocal spike and sharp waves in locations as enumerated above. Clinical Correlation: This EEG is consistent with this child's history of hypoxic ischemic encephalopathy. It shows a pattern consistent with severe bilateral cerebral dysfunction. It also shows several areas of potential epileptogenicity. During the study, the child had several clinical events characterized as posturing. These events were not associated with any epileptiform discharges, suggesting that they are not epileptic in origin. (Stipulated Medical Composite, Book 4 of 5, p. 2853). Sam was discharged from All Children's Hospital on December 13, 2004, with a noted history of hypoxic-ischemic encephalomathy, gastroesophageal reflux disease, gastrotomy tube and Nissen fundoplication, and upper airway obstruction, now status post tracheostomy, and tracheitis (inflammation of the traches), treated. Sam remains with a tracheostomy and G-tube (feeding tube) today. At the request of Sam's pediatrician, he was readmitted to All Children's Hospital on December 30, 2004, for an EEG and consultation with Dr. Casadonte. Dr. Casadonte reported the results of his consultation, as follows: REASON FOR CONSULTATION: Performed at the request of the Florida Pediatric Service. The child is 5 months old and has severe static encephalopathy secondary to hypoxic ischemic encephalopathy. Has intercurrent illness prompting admission (tracheitis). He has no independent function. He is undergoing hyperbaric treatment. He has episodes of irregular movements, rule out seizures. He was placed on continuous bedside electroencephalogram monitoring last evening.[6] * * * The child has no independent function. He does not focus or tract. He does not reach or transfer. He has dysconjugate eyes with poorly reactive pupils. His face is symmetric. He has increased tone in all his extremities. The child underwent video electroencephalogram. He has episodes of tonic stiffening. At times these episodes are associated with attenuation of the background. At times this attenuation stays for up to several minutes. At times it occurs without associated clinical change. Sometimes he has similar clinical movements, without attenuation of the background. Background electroencephalogram is abnormal with disorganization and multifocal sharp waves. IMPRESSION: Static encephalopathy with profound mental retardation. Electroencephalogram that shows periods of abrupt attenuation, sometimes associated with a tonic stiffening. At times, the child has similar episodes of stiffening without clear associated change, and sometimes he has several spasmic-like movements that are tonic in nature. I spoke with mother at length about the above findings. Expressed to her that some of his findings would be consistent with epileptic spasms. These are mostly tonic. However, I spoke to her at length because of his severe brain injury. The electrical clinical association is inconsistent. Subsequently, Sam was seen by Paul Kornberg, M.D., a pediatric rehabilitation specialist, Radhakrishna Rao, M.D., a pediatric neurologist, Steven Goss, M.D., a pediatric ophthalmologist, and Magda Barsoum-Homsy, M.D., a pediatric ophthalmologist. Dr. Kornberg reported the results of his September 6, 2005, consultation, as follows: REVIEW OF SYSTEMS: He is in good general health. The mother reports he has stiffness in his upper and lower extremities, particularly at his elbows though she reports no difficulty with daily care . . . . His hearing was tested at Tampa General Hospital and was reportedly okay. He has a tracheostomy . . . . History of hypoxic encephalopathy with spastic quadriparesis Visual function is unclear, and the mother questions whether he may inconsistently track his lobule . . . . He is NPO and receives all nutrition by his gastrostomy tube, primarily breast milk and also water. The mother reports no consistent responses to sound . . . . FUNCTIONAL/DEVELOPMENTAL HISTORY: Samuel is dependent for all functional mobility and self-care skills. He is unable to roll or sit independently when placed in prone though his mother reports he is able to turn his head a bit but he does not consistently localize to sound. Communication is only by crying and facial expression . . . . PHYSICAL EXAMINATION: * * * NEUROLOGIC: Facies are symmetric. Tongue is midline. Gaze is dysconjugate. Tone is increased in the extremities, upper greater than lower. Spasticity is noted. Modified Ashworth score of 1+ at the hip adductors and 2 at the elbow extensors, pectoralis major, ankle plantar flexors, as well as the finger flexors. Strength could not be assessed as there was no purposeful movement. Sensation was also difficult to assess. There was no consistent cortical recognition of noxious stimulus. Deep tendon reflexes are brisk throughout with overflow. There was no clonus elicited. COGNITIVE: The patient did not smile or respond to visual threat. No tracking was appreciated. Head control was poor. ASSESSMENT: Spastic quadriparetic cerebral palsy. Global profound development delay. Contractures. Dysphagia status post gastrostomy. Gastroesophageal reflux disease status post partial fundoplication. Tracheostomy dependent. * * * Spasticity. Suspect cortical visual impairment. RECOMMENDATIONS: Continue physical therapy to maximize range of motion, positioning, and attempt to maximize gross developmental skills. Continue occupational therapy for upper extremity range of motion, splinting, as well as adaptive equipment. * * * 6. A prescription was provided for vision therapy services through Early Intervention. In an examination on March 16, 2007, Dr. Kornberg noted "profound impairment" of Sam's cognitive function. (Stipulated Medical Composite, Book 4 of 5, p. 2987). Dr. Rao reported the results of his September 12, 2005, neurological consultation, as follows: Neurological Examination: Mental Status Examination: Patient is alert and awake. Patient has dyscongugait gaits. Tongue is in midline. Limited examination. Patient tried to turn the eyes towards the sound bilaterally. Motor Examination: The tone increased in all the extremities both upper and lower. Spasticity is noted. Sensory Examination: Limited examination but appreciates touch. Deep Tendon Reflex: Brisk bilaterally. There is no clonus elicited. Clinical Impression: It is found global developmental [delay], spasticquadraperetic cerebral palsy, GI reflux as per the history with the G-tube in placed and has a history of partial fundoplication. Patient also has tract in place. Possible visual impairment. Patient also has hypoxic encephalopathy. Recommendations: We will obtain CAT scan of brain without contrast to document the extent of injury and further evaluation of intracranial pathology. We are also requesting for a routine EEG to be done . . . . The results of the CT scan (completed October 18, 2005) were reported, as follows: There is moderate ventriculomegaly probably due to under development. There is mild periventricular leukomalacia in both frontal and parietal lobes. The middle cerebral peduncles (upper mid brain) are small and this may be due to Wallerian degeneration from the reduced white matter above. IMPRESSION: MODERATE VENTRICULOMEGALY WITH THINNING OF THE WHITE MATTER AND MILD PERIVENTRICULAR LEUKOMALACIA. EVIDENCE OF WALLERIAN DEGENERATION WITHIN THE MID BRAIN DUE TO THE WHITE MATTER DISEASE ABOVE. NONSPECIFIC FAINT CALCIFICATIONS IN THE THALAMIC NUCLEI BILATERALLY. The EEG did not reveal any definite seizure activities, but did show attenuated background and slow wave activities suggesting underlying encephalopathic change. (Stipulated Medical Composite, Book 1 of 5, pp. 714-716, 748, and 797). Dr. Goss reported the results of his October 12, 2005, ophthalmology consultation, as follows: I saw your patient Samuel Anderson in the office on 10/12/05 . . . . There is a question as to how much he can or cannot see. On exam he was awake. He showed occasional posturing movements. He had occasional horizontal eye movements which did not appear to be related to external visual light stimulus. With a bright light into the eye, he did not show any significant blink reflex at all. The pupils were approximately 4ml ou and were sluggish to bright light. There were very occasional horizontal spontaneous roving movements, for the most part the eyes were relatively still and there was not a continuous horizontal nystagmus. The anterior segment showed conjunctiva to be quiet bilaterally. The left greater than right cornea showed some punctate changes in the epithelium with dryness particularly on the left. The anterior chamber was otherwise unremarkable, lens clear and fundus with DFE showed bilaterally the optic discs to be somewhat pale, diffusely. The retina was unremarkable. In terms of refractive error there may be a high myopia. Samuel has impaired visual responsiveness. This appears to be probably for the most part in the basis of central nervous system damage in the occipital cortex or subcortical "local areas." I say this because there is no spontaneous continuous nystagmus. However, there are probably is in addition an anterior pathway disease as well in relation to optic atrophy because of the pupils not responding in a normal manner as well. It is certainly possible this could be related to diffuse retinal inoxic injury as well. The only way to verify that by ERG. He has in addition as indicated in the above exam a bilateral corneal changes related to impaired blinking. I had a lengthy discussion with mom concerning the issues involved. I suggested we use topical drops, Refresh or Refresh Plus several times a day to keep the corneas moist. In regards to vision therapy there is no known experimentally proven ethicacious method for improving vision in these children, certainly visual stimulation may have a role, but its exact role is currently not known . . . . (Stipulated Medical Composite, Book 4 of 5, p. 2949). Dr. Barsoum-Hornsy reported the results of her February 22, 2007, ophthalmology consultation, as follows: EXAMINATION: Today shows some reaction to light in both eyes. Presence of severe Bell's phenomenon with both eyes turned up. External segment shows conjunctival congestion with superficial vascularization of the cornea of the right eye inferiorly at around the 3 - 6 o'clock position, left eye at around the 7 o'clock position. Corneal sensation is normal in both eyes. Iris and lens were normal. Fundus examination shows partial optic atrophy with pale optic nerve right and left eye. DIAGNOSIS: Partial optic atrophy, dry eye syndrome. (Stipulated Medical Composite, Book 5 of 5, p. 4113). The dispute regarding compensability A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth." § 766.31(1), Fla. Stat. See also § 766.309(1), Fla. Stat. Pertinent to this case, the Plan defines "birth- related neurological injury" to mean an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat.7 Here, there is no dispute that obstetrical services were delivered by a participating physician at birth. There is likewise no dispute that Sam suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which rendered him permanently and substantially physically impaired. Rather, the only dispute regarding compensability is whether the brain injury Sam suffered also rendered him permanently and substantially mentally impaired. As to that issue, Petitioners were of the view that Sam was not permanently and substantially mentally impaired, while Respondent and Intervenors were of a contrary opinion. Sam's mental condition To resolve whether Sam was permanently and substantially mentally impaired, the parties offered the medical records related to Sam's birth and subsequent development. Additionally, Respondent and Intervenor Hilderbrandt each offered the testimony of a pediatric neurologist to support their view that Sam was permanently and substantially mentally impaired, and Petitioners offered the testimony of Sam's current neurologist to support their position that Sam was not so impaired. Finally, Petitioners offered the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother to demonstrate that Sam has developed an alternative means of communicating with others by use of his tongue, and that this ability, coupled with his demonstrated ability to follow instructions, interact with his family and healthcare providers, and perform repeatable tasks in his various therapies, demonstrate Sam is not permanently and substantially mentally impaired. Called on behalf of Respondent was Raymond Fernandez, M.D., a physician board-certified in pediatrics (since 1973), and neurology with special competence in child neurology (since 1980), who has practiced pediatric neurology or held teaching positions at the University of South Florida (USF), College of Medicine, since 1976. Currently, and since 1993, Dr. Fernandez has practiced pediatric neurology with Pediatric Neurology Associates, P.A., in the Tampa Bay area, and since 1994, has held the position of Clinical Professor, Department of Pediatrics, USF College of Medicine. (Exhibit 2 (Dr. Fernandez' Curriculum Vitae (CV)) to Dr. Fernandez' deposition (Exhibit 60)). At NICA's request, Dr. Fernandez performed a neurological examination of Sam on November 15, 2007. The results of that examination were documented in Dr. Fernandez' written report (Exhibit 75), and addressed in Dr. Fernandez' deposition (Exhibit 60). Dr. Fernandez' report begins by noting Sam's birth history; admissions to Tampa General Hospital, St. Joseph's Hospital, and All Children's Hospital; and examinations by Doctors Casadonte, Rao, and Kornberg, as heretofore discussed. With regard to the CT scan ordered by Dr. Rao, and reported October 18, 2005, Dr. Fernandez noted it "showed a pattern consistent with remote and diffuse hypoxic ischemic injury with ventricular enlargement, periventricular leukomalacia, thalamic injury, and [W]allerian degeneration within the midbrain." Dr. Fernandez then proceeded to note Sam's developmental history, as related to him by Mrs. Anderson, the results of his examination, and his impressions, as follows: Mrs. Anderson stated that Samuel's developmental status "gets a little better all the time." He becomes more vocal, but he does not babble nor does he speak. Visual tracking is improving, and he is blinking more, per Mrs. Anderson's description. Samuel's hearing is judged to be good, and he responds more to sounds. He responds differently to family member's voices. He cries and grimaces when he is hungry, when his diapers are wet or soiled, and when he requires suctioning of his airway. At times, when upset, he might stiffen "like having a tantrum." Samuel does not smile or laugh, but Mrs. Anderson knows when he is content by his facial expression and by his pattern of breathing characterized by a sound that resembles a sigh. He has some vision and will follow light and moving objects, although with some delay. Samuel does not reach for objects. He sleeps on his back and tends to roll over onto his side when on an incline of about 45 degrees. When flat on the floor, he cannot roll over. He moves his legs spontaneously (left more than right). Mrs. Anderson stated that Samuel is able to roll from his abdomen to his back, but not vice versa, although he does not do this very often. He does not crawl. Head control is limited. Mrs. Anderson feels that on occasion Samuel responds to what is being said to him by either becoming upset or content, as evidenced by different facial expressions and breathing patterns. PHYSICAL EXAMINATION: On November 15, 2007, weight 24 pounds (average for 15 month old), length 90 cm (average for a 2-1/2 year old), head circumference 46.2 cm (average for a 1 year old).[8] . . . There was flattening of the right posterior quadrant of the skull. There was no ridging at suture lines. Eyes were open, but there was no visual tracking. The right pupil was 2-3 mm in diameter and incompletely reactive to light. The left pupil was about 4 mm in diameter and nonreactive to light. I was unable to adequately visualize his fundi in detail, but the optic nerves appeared to be pale.[9] Samuel has a disconjugate gaze with outward deviation of the eyes. The left eye moved fully horizontally with dolls head maneuver. The right eye abducted fully, but adducted only to the midline. There was upward eye deviation intermittently. Corneal reflexes were absent, and he did not blink. There was limited facial movement. Samuel's eyes tended to close spontaneously and slowly, but he did not actively blink at regular intervals. He did not turn toward sound. Gag reflex was absent. There was pooling of secretions and profuse drooling, requiring frequent suctioning. He did not swallow. Muscle tone was increased in all limbs (arms greater than legs and left side greater than right side). There was poor head control characterized by complete head lag when pulled to the sitting position. He was unable to sit. There was very little spontaneous movement. He did not reach. He was unable to roll over. There were no purposeful movements in response to stimulation. He consistently elevated his left leg in response to tactile stimulation over the left side of the forehead and at times in response to tactile stimulation over the left side of his chest. This occurred repeatedly and in stereotypic fashion, resembling reflex movement. Reflexes were brisk throughout, and there was clonus in both ankles. With respect to mental status, Samuel fluctuated from apparent wakefulness characterized by eyes being open and periods of apparent drowsiness or sleep characterized by slow gradual closure of the eyes. He made no sounds other than noisy breathing. I was not able to elicit any purposeful or meaningful response from Samuel. He did not track visually or respond to sounds or when his name was called. He did not smile or cry nor did he become anxious during the examination. Samuel required airway suctioning frequently, but maintained good color and regular respirations. The tracheostomy site was clean. His eyes were open much of the time, and I did not see him blink. Eyes were moist without obvious corneal clouding or corneal ulceration. The left eye was red, but there was no mucoid or purulent discharge. A PE tube was present in the right ear, but one could not be seen in the left ear. There was no heart murmur. Lungs were clear with only coarse transmitted upper airway sounds bilaterally. There were no abdominal masses. The G-tube site was clean. The spine was fairly straight. Arms were tight proximally and distally with some joint restriction. There were no dysmorphic features. There were no skin abnormalities of neurological significance. IMPRESSION: Based on history, clinical findings, and brain imaging. Samuel Anderson is substantially mentally and physically impaired. Neurological and developmental findings are due to the severe anoxic encephalopathy (oxygen deprivation) sustained during labor, resulting from uterine rupture. Based on the severity of Samuel's anoxic encephalopathy and current findings, he will always be totally dependent on others for his care. There is virtually no chance that there will be significant improvement in physical and mental neurological function. In his deposition, Dr. Fernandez reaffirmed his opinion that, considering Sam's "history, findings on examination, and brain imaging, all together," Sam was permanently and substantially mentally impaired. (Exhibit 60, p. 14). In so concluding, Dr. Fernandez noted Sam's history, as evidenced by the medical records heretofore discussed;10 that on examination he was unable to elicit any meaningful response from Sam; and record evidence of severe brain injury, with burst suppression on EEG, indicative of diffuse and severe brain injury; microcephaly, strong evidence of impaired brain growth; and evidence on brain imaging (CT scan) of diffuse brain atrophy and ventricular enlargement.11 Testifying on behalf of Intervenor Hilderbrandt was Michael Duchowny, M.D., a physician board-certified in pediatrics (since 1976), neurology with special competence in child neurology (since 1979), and clinical neurophysiology (since 1982). (Intervenor Hilderbrandt Exhibit 1, Dr. Duchowny's CV). Dr. Duchowny has practiced pediatric neurology since 1977, and has been on the faculty in the Department of Neurology at Miami Children's Hospital since 1980. Currently, Dr. Duchowny is a senior staff attending in neurology at Miami Children's Hospital, and directs the neurological training programs and the clinical neurophysiology fellowship program. He holds an appointment as a professor of neurology and pediatrics at the University of Miami Miller School of Medicine. Approximately 70 percent of Dr. Duchowny's time is spent in direct patient care, both inpatient and outpatient settings, including covering intensive care units and the emergency department for consultations. (Tr., pp. 180-183). At the request of Intervenor Hilderbrandt, Dr. Duchowny reviewed the medical records associated with Sam's birth and subsequent development, including reports of neurologic and other evaluations by Dr. Fernandez and Dr. Kornberg, as well as the results of neuro-imaging studies. Based on that review, as well as the review of pictures of various neuro-imaging studies, discussed infra, Dr. Duchowny was of the opinion that Sam sustained a permanent and substantial mental, as well as physical impairment. In so concluding, Dr. Duchowny noted that four pediatric neurologists had an opportunity to examine Sam, together with a pediatric rehabilitation specialist, pediatric ophthalmologist, and nurse practitioner, and their reports were all consistent with bilateral brain damage, with severe global delay, mental and motor. Dr. Duchowny also reviewed various diagnostic studies, including pictures of the CT films of November 27, 2004, and October 18, 2005,12 which he concluded evidenced abnormality consistent with permanent and substantially mental and physical impairment. In so concluding, Dr. Duchowny noted the scans were significant for severe bilateral, superficial and deep brain damage, with ventricles abnormally enlarged due to the destruction of surrounding brain tissue; deep atrophy and superficial atrophy of the cortex and underlying white matter; and scarring of the thalami, abnormalities inconsistent with normal mental, as well as physical function. Testifying on behalf of Petitioners was Sam's current neurologist William Hammesfahr, M.D. Dr. Hammesfahr received his M.D. degree in 1982, completed his neurology training in 1988, and entered private practice in St. Petersburg, Florida, in 1988. He has been board-certified in neurology and pain management since 1990. (Exhibit 1 (Dr. Hammesfahr's CV) to Exhibit 64). Dr. Hammesfahr has seen Sam on seven occasions, starting on February 2, 2007, for his "static vascular encephalopathy."13 According to Dr. Hammesfahr's records, Sam was initially evaluated on February 2, 2007, and on February 8, 2007, he was started on "nitrobid paste for its CNS [central nervous system] vasodilating properties," that resulted in improvement in swallowing and calmer breathing.14 On March 1, 2007, Dr. Hammesfahr noted Sam's breathing rate was improving, his spasticity had improved, and he was sleeping better. (Exhibit 64, pp. 32 and 33). At the June 3, 2007, office visit, Dr. Hammesfahr noted further improvement, with "developing motor skill ability and coordinating muscle activity." (Exhibit 64, p. 36). For the September 13, 2007, visit, Dr. Hammesfahr's office notes include the following, as having been reported to him (most likely by Sam's mother): Sam is doing much better. He is recognizing and following commands with his therapist, he understands language, he needs less suctioning than before and the family feels he is much more aware. (Exhibit 64, p. 46). At Sam's November 26, 2007, visit, Dr. Hammesfahr noted more voluntary motion, and at his last visit in March 2008, Dr. Hammesfahr testified that Sam was "a little more alert, . . . a little bit better trunk control, head control, tends to focus on his surroundings a bit more each [visit]." (Exhibit 64, pp. 55 and 57). Based on his evaluation of Sam, as well as his limited review of Sam's history and the results of his CT scans, as reported by the radiologist, Dr. Hammesfahr expressed concern that "what we're really dealing with is a child who's essentially locked in at this point." (Exhibit 64, p. 59). Dr. Hammesfahr concluded, based on his review of CT scan reports, that the reported findings did not correlate with Sam's physical disabilities, and that Sam's injury is probably not an injury to his brain but, rather, an injury to his brain stem. Consequently, Dr. Hammesfahr was of the opinion that Sam could have very good cognitive ability, but little or no physical ability to express it.15 (Exhibit 64, pp. 59-61). Notably, although Dr. Hammesfahr has observed some improvement in Sam's physical function, he shares the view of others that Sam is permanently and substantially physically impaired. Moreover, Dr. Hammesfahr does not foreclose the likelihood that Sam may ultimately be shown to be permanently and substantially mentally impaired. Rather, he articulates his opinion, as follows: I don't think you can say that he is -- While I believe that there's probably going to be some degree of permanent impairment to some degree, I don't think that you can make any kind of predictions of the future right now for him. I think, if anything, the evidence should be weighted in his favor that he's got a good chance of significant cognitive abilities in the future. (Exhibit 64, pp. 7 and 8). It is also notable that in formulating his opinions, Dr. Hammesfahr relied on the CT reports, and did not review the films or pictures of the films, as Doctors Fernandez and Duchowny did. Finally, it is worthy of note that Sam was never shown to have communicated with Dr. Hammesfahr by tongue movement and that what communication did occur appeared more an emotional response, than a reflection of a higher level of cognitive function.16 To further support their contention that Sam was not permanently and substantially mentally impaired, Petitioners offered the testimony of Sam's occupational therapist (Laura Francis), vision therapy teacher (Barbara Czarnopy), chiropractor (Daniel Towle, D.C.), home health nurse (Jennifer Harris, LPN), parents, and grandmother (Nancy Judge). In the experience of Ms. Francis, Sam would indicate he wanted to do an activity by thrusting his tongue to indicate yes, and not moving this tongue to indicate no. Other ways Sam responded or communicated were described by Ms. Francis, as follows: . . . Well, if he doesn't like something he'll cry or he'll turn colors. He gets like this purplish look to his face if he's mad at you or he'll scrunch his face if he's mad at you. He'll stiffen up if he's mad at you. And then when he's not mad at you and he likes what he's doing he's relaxed and, you know, yeah, he's more relaxed and just, not say easygoing, but, you know. (Exhibit 63, p. 15). Ms. Francis also noted that during the course of her occupational therapy with Sam she introduced a number of activities to improve his physical and sensory needs, including cause/effect toys. With regard to those toys, if Sam was familiar with it, Ms. Francis observed he could activate it on a regular basis, albeit with assistance (i.e., holding it in front of him). (Exhibit 63, pp. 10 and 23). Ms. Czarnopy, Sam's vision therapy teacher, is a homebound teacher of the visually impaired, is employed by the Pasco County School System, and has provided services for Sam once a week (Mondays, 12:00-1:00 p.m.) since August 2006. Ms. Czarnopy, like Ms. Francis, noted that Sam thrusts his tongue to indicate yes, and makes no movement to indicate no. Ms. Czarnopy also uses cause/effect toys during her sessions, to improve eye-hand coordination. The cause/effect toys Ms. Czarnopy uses, and has used for a year or longer, are designed for children 6 months to 18 months of age. According to Ms. Czarnopy, every time she demonstrates a new toy and every time she reintroduces the toy, she places Sam's hand on the lever to show him how to do it, and that he regularly activates the toy. (Tr., 129, 147, and 148). However, Ms. Czarnopy also agreed that under the Pasco County Schools ESE Program guidelines Sam is considered "profoundly mentally handicapped"17; that because of his injury Sam has suffered permanent mental impairment, although she declined to answer whether it was substantial18; that Sam's social and vocational development have been significantly impaired; and that, regardless of the degree of any cognitive impairment, Sam will, given his physical impairment, require substantial accommodation to exercise any cognitive functions he has. (Tr., pp. 155-157, 164, 165, and 169). Dr. Towle, a chiropractic physician, has been seeing Sam since April 2007, on a once-a-week basis, with the aim of providing some improvement to his physical function. According to Dr. Towle, Sam is "very aware of his surroundings," and "cooperate[s]" during therapy sessions. (Tr., pp. 21 and 25). As for his ability to express his needs, Dr. Towle was asked the following questions and gave the following responses: Q. Does Sam -- in your experience with his language that you have learned, does he have a way of telling you yes? A. Yeah. Well, he'll curl forward. Then there are times where -- it sounds like one of my cats -- he'll stick his tongue out at me. * * * Q. All right. Now, you said that Sam has this tongue thrust? A. Uh-huh. Q. What is the tongue thrust for? A. The nearest example I could give you would be a yes or a no. It would be -- no. I'll just leave it as a yes or no. You know, when it pops out -- I'm sorry, when his tongue sticks out, it's a yes. When he clinches his fists and throws them back, it means no. So, you know, it's kind of just paying attention to details. Q. Meaning as a healthcare provider paying attention to details? A. Yeah . . . . (Exhibit 68, pp. 23, 27). However, with regard to Sam's mental function, Dr. Towle felt unqualified to express an opinion, and declined to do so. (Exhibit 68, p. 28). Mrs. Harris, Sam's home health nurse for about 1 1/2 years, when asked whether Sam was "responsive" to her answered "yes." (Exhibit 66, pp. 9 and 10). In explaining how Sam was "responsive," Mrs. Harris testified: Q. . . . What do you mean by that when you express -- A. Him being responsive? Q. Sure. A. He was -- of course, during my care, I was there for day shift, and in the afternoons, when he went down for his nap, there would be times when I would put him in his crib, and he seemed extremely unhappy and would scream and cry until I would pick him up, at which point he would immediately be soothed. There were times when he would -- if I was singing to him, he would watch me or watch me walk across the room to get something, and that's, you know -- (Exhibit 66, p. 10). From Sam's grandmother (Nancy Judge), we learn that Sam will make some choices (i.e., when asked if he would like something) by thrusting his tongue for yes, and not thrusting for no; that Sam will likewise show a preference for a color, when asked "[d]o you like this color," by thrusting or not thrusting his tongue, but does not know colors; and that Sam was taught the tongue thrusting technique by Laura, his occupational therapist. (Exhibit 62, pp. 2, 5, 6, 21). We also learn that when Sam is angry or people do not pay him attention, Sam will display displeasure by "a really angry face and . . . huffing and puffing and crying and screaming." (Exhibit 62, pp. 7 and 20). From Sam's parents, we hear similarly regarding Sam's use of tongue thrusts, and his expression of anger or disappointment. (Tr., pp. 43-58); 101-104). The medical records and the testimony of the parties' experts (Doctors Fernandez, Duchowny, and Hammesfahr), have been thoroughly reviewed. Having done so, it must be resolved that among the physicians who addressed the likelihood that Sam was substantially mentally impaired, Doctors Fernandez and Duchowny were the more qualified to address the issue, their testimony was the more candid and compelling, and their testimony was most consistent with the medical records and the observations of other physicians who have treated Sam. Consideration has also been given to the testimony of Sam's occupational therapist, vision therapy teacher, chiropractor, home health nurse, parents, and grandmother regarding Sam's ability to communicate, to follow instructions and perform repeatable tasks. However, such proof was lacking in substance, and insufficient to outweigh the credible testimony of Doctors Fernandez and Duchowny, as well as the other evidence of record. Moreover, and found credible, were the observations of Doctors Fernandez and Duchowny, that if Sam's activities were indeed a reflection of a higher intellect, as opposed to a rudimentary or emotional response, they should be reproducible and objectively quantifiable on neurologic examination. (Exhibit 60, pp. 20 and 21; Tr., pp. 226 and 227). Notably, such proof has not been provided. Accordingly, it is resolved that, more likely than not, Sam is permanently and substantially mentally impaired, and the claim is compensable. The notice issue Apart from contesting compensability, Petitioners also sought an opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the health care providers. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)["A]s a condition precedent to invoking the Florida Birth- Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the health care providers complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearing, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2004), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes (2004), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[19] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so that they could furnish a copy of it to their obstetrical patients. (Exhibit 13). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provisions of the Plan, because it failed to "include a clear and concise explanation of a patient's rights and limitations under the plan." However, Petitioners' contention, as well as the argument they advance to support it,20 has heretofore been rejected. Dianderas v. Florida Birth-Related Neurological Injury Compensation Association, 973 So. 2d 523, 527 (Fla. 5th DCA 2007)("[T]he NICA "Peace of Mind" brochure satisfies the legislative mandate of providing a 'clear and concise explanation of a patient's rights . . . and limitations . . . under the plan.'"). Findings related to the participating physicians and the notice issue Mrs. Anderson received her prenatal care at West Coast Medical Group, Inc., d/b/a West Coast Obstetrics & Gynecology (West Cost OB/GYN), a practice that was owned and operated by Helen Ellis Memorial Hospital.21 West Coast OB/GYN maintained offices in Tarpon Springs, which were staffed by A. Trent Williams, M.D., Michelle Golding, CNM, Amy Harrington, CNM, and Christine Hilderbrandt, CNM, and an office in New Port Richey, which was staffed by Matthew Conrad, M.D., and Teresa Conrad, M.D. Notably, Doctors Williams, Matthew Conrad, Teresa Conrad, and Certified Nurse Midwife (CNM) Hilderbrandt were employees of Helen Ellis Memorial Hospital.22 (Exhibits 71 and 59, p. 10). Mrs. Anderson was seen at the Tarpon Springs office. Pertinent to the notice issue, the parties have stipulated that at all times material hereto Matthew Conrad, M.D., Teresa Conrad, M.D., and A. Trent Williams, M.D., were participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan. Moreover, the proof otherwise demonstrates that the fee for their participation for calendar years 2003 and 2004 was paid, and they were provided a certificate of their participation by NICA. (Pre-Hearing Stipulation, Admitted Facts; Exhibits 4 and 5). Moreover, while her status was not stipulated to, the proof demonstrates that the fee for CNM Hilderbrandt for participation for calendar years 2003 and 2004 was paid, and she was provided a certificate of her participation by NICA. (Exhibits 2, 3, and 4). Whether CNM Hilderbrandt otherwise met the requirements to qualify as a participating physician, will be addressed infra. On December 12, 2003, Mrs. Anderson presented to the Tarpon Springs office of West Coast OB/GYN for her initial prenatal visit. At the time, consistent with established practice, Mrs. Anderson was provided a number of forms to complete and sign, including a New Patient Registration Information Form, Consent to Treat, Assignment of Benefits, and Notice to Obstetrics Patients Regarding NICA (to acknowledge receipt of the NICA brochure). The Notice of Obstetric Patient form provided: West Coast Obstetrics & Gynecology Notice to Obstetric Patients Regarding NICA (see section 766.316, Florida Statutes) I have been furnished information by West Coast Obstetrics and Gynecology, prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that M. Conrad MD, T. Conrad MD, A. T. Williams MD, Michelle Golding, CNM, Amy Harrington CNM, and Christine Hilderbrandt CNM, are participating providers in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received a copy of the brochure by NICA. print patient name Patient social security number patient's signature date witness date (Exhibit 12). Mrs. Anderson signed and dated the form. Here, Mrs. Anderson acknowledged she signed the Notice to Obstetric Patient but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that the notice requirements of Section 766.316 have been met by Doctors Williams, Matthew Conrad, and Teresa Conrad, and by the certified nurse midwives (including CNM Hilderbrandt, if she were a participating physician, and required to give notice). Findings related to the hospital and notice On June 24, 2004, Mr. and Mrs. Anderson presented to Helen Ellis Memorial Hospital and pre-registered for Sam's delivery. There, the Andersons were interviewed by a registration clerk, who gathered certain demographic information (such as name, age, address, social security number, marital status, next of kin), employment information, insurance information, and delivery information (physician's name and expected due date), and entered it into a computer.23 The Andersons executed no documents at that time, and were not provided a NICA notice or a NICA brochure, although it was practicable to have done so. Regarding NICA notice, it was the hospital's policy when Mrs. Anderson pre-registered, as it is today, to only provide the NICA notice and a copy of the NICA brochure when the patient presented to the Women's Center (the eighth floor) in labor or with other pregnancy-related issues. (Exhibit 58, p. 21; Tr., 312). Apart from pre-registration, Mrs. Anderson did not present to the hospital until July 28, 2004. At 5:30 a.m., July 28, 2004, Mrs. Anderson presented to Helen Ellis Memorial Hospital complaining of irregular contractions for 24 hours, with increased intensity since 4:00 a.m. External fetal monitoring was applied, and revealed a fetal heart rate in the 140 beat per minute range, and vaginal examination revealed the cervix at fingertip to 1 centimeter, effacement thick, and the fetus high. Subsequent vaginal examinations at 6:15 a.m., and 7:45 a.m., were unchanged, nonstress test (NST) was reactive, and at 8:00 a.m., Mrs. Anderson was discharged home with a prescription for Ambien (a sleep aid) and instructions to rest. Diagnosis on discharge was false labor. Notably, when admitted on July 28, 2004, Mrs. Anderson executed (at 5:30 a.m.), a two-page form, that included a Consent to Treatment, and at some time thereafter, a NICA acknowledgment form (to acknowledge receipt of the NICA brochure). (Stipulated Medical Composite, Book 1 of 5, pp. 119 and 120). The NICA acknowledgment form provided: HELEN ELLIS MEMORIAL HOSPITAL Tarpon Springs, Florida I have been furnished information by Helen Ellis Memorial Hospital prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that Helen Ellis Memorial Hospital participates in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. I understand that for specifics on the program I can contact the Florida Birth-Related Neurological Injury Compensation Association (NICA) as described in the brochure prepared by NICA titled Peace of Mind for an Unexpected Problem. I further acknowledge that I have received a copy of the brochure. DATED this day of , (year) Patient's Signature Social Security Number (Exhibit 74). Mrs. Anderson signed the form, and entered her social security number. Here, Mrs. Anderson acknowledged she signed the NICA acknowledgment form, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure, as required by Section 766.316, Florida Statutes. However, whether such notice was efficacious will be addressed, infra. Following her discharge from Helen Ellis Memorial Hospital the morning of July 28, 2004, Mr. and Mrs. Anderson ate breakfast, and then returned to their house, where Mrs. Anderson took an Ambien and slept for the remainder of the day. During the night, Mrs. Anderson monitored her contractions, which continued as they had been, and spoke with either CNM Hilderbrandt or Golding, who advised her, since she was to be induced in a few days anyway, to return to the hospital and have the baby. (Tr., pp. 36 and 37). Mrs. Anderson returned to Helen Ellis Memorial Hospital at 3:30 a.m., July 29, 2004. At the time, vaginal examination revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high, and uterine contractions were noted as irregular (inconsistent with active labor). Mrs. Anderson executed a Consent to Treatment form at 4:20 a.m., and was admitted for observation, and at some time thereafter, Mrs. Anderson signed a NICA acknowledgment form (to acknowledge receipt of the NICA brochure), identical to the form she signed on July 28, 2004. Again, Mrs. Anderson acknowledged she signed the NICA acknowledgment form but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. Consequently, Petitioners have failed to rebut the presumption that Mrs. Anderson was provided a copy of the NICA brochure. However, whether such notice was efficacious will be addressed, infra. Here, given the circumstances, including the inherent distractions associated with Mrs. Anderson's presentation on July 28, 2004, and July 29, 2004, as well as the lack of proof as to when NICA notice was provided and the circumstances under which it was provided, it cannot be resolved, with the requisite degree of certainly, that the giving of notice was efficacious. Nevertheless, were these the only contacts Mrs. Anderson had with the hospital, it would likely be concluded that it was not practicable to have given notice earlier. However, since Mrs. Anderson pre-registered for the delivery of Sam on June 24, 2004, and she was not provided a NICA notice or brochure, although it was practicable to have done so, it must be resolved on the facts of this case that the hospital failed to comply with the notice provisions of the Plan.24 The participating physician issue Under Subsection 766.314(4)(c), Florida Statutes, a certified nurse midwife may be deemed a "participating physician," under the following circumstances: . . . Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised by a participating physician who has paid the assessment required by this paragraph and paragraph (5)(a). Supervision for nurse midwives shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features . . . . To support the conclusion that CNM Hilderbrandt would be supervised by a participating physician, who would be easily available, Intervenor Hilderbrandt offered a Statement of Supervising Physician, signed by A. Trent Williams, M.D., and herself, on April 10, 2002, and April 9, 2002, respectively, which provided: A. Trent Williams, M.D., license #ME0065859, of 1501 S. Pinellas Avenue, Suite T, Tarpon Springs, FL 34689 maintains a primary supervisory relationship with Christine Hilderbrandt, ARNP-CNM, license #ARNP2729292, of the same address. All functions contained within the Practice Guidelines may be performed under general supervision. The statement further provided that: The following physicians also agree to perform in a supervisory capacity under the Practice Guidelines for the above-named ARNP-CNM when she administers to the needs of her patients within the Helen Ellis Memorial Hospital setting during their respective on-call rotations: That provision was signed by Dr. Matthew Conrad, Dr. Teresa Conrad, and Dr. S. Tatiana Goodwin (who was associated with the practice at that time). (Exhibit 7). To support the conclusion that there existed a "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," CNM Hilderbrandt presented a document titled "West Coast Obstetrics & Gynecology, Certified Nurse Midwife Protocol." The document was labeled "edit copy . . . a. t. williams," contained numerous handwritten revisions, questions, and edits, and was not signed or dated. CNM Hilderbrandt described the document as a draft she and Dr. Williams worked on; conceded it was not the final document, which she averred was in Dr. Williams' office; and explained she did not produce the final draft because she did not have it. (Tr., pp. 257-261). Notably, CNM Hilderbrandt made no showing of what efforts, if any, were made to secure the final document from Dr. Williams or West Coast OB/GYN, who were parties to these proceedings, or account for its unavailability. In addition, CNM Hilderbrandt offered testimony that she signed protocols each year, and relied on the office manager to file them with the State of Florida, Board of Nursing, as required by Chapter 464, Florida Statutes, and Florida Administrative Code Rule 64B9-4.010.25 (Exhibit 59, pp. 24-26; Tr., pp. 244 and 245). However, the proof established that no protocol regarding CNM Hilderbrandt was filed in 2002 or 2003, and an established protocol (as between Dr. Williams and CNM Hilderbrandt), that was filed with the Board of Nursing on April 13, 2004 (and dated April 1, 2004), was apparently destroyed, albeit prematurely given the Board of Nursing's four year retention policy. (Exhibit 9). Nevertheless, Florida Administrative Code Rule 64B9-4.010(3) requires that "[a]fter the termination of the relationship between the ARNP and the supervising professional, each party is responsible for ensuring that a copy of the protocol is maintained for future reference for a period of four years." Here, CNM Hilderbrandt did not produce any protocol because "I don't have them." (Tr., p. 257). Again, she did not explain their lack of availability, or what efforts, if any, were made to secure copies from Dr. Williams or West Coast OB/GYN. Given the proof, CNM Hilderbrandt demonstrated that she would be supervised by a participating physician, who would be easily available. However, given CNM Hilderbrandt's failure to offer the protocols she claimed were in place, the proof failed to establish that there existed "a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features," as required by Section 766.314(4)(c), Florida Statutes, and therefore failed to establish that CNM Hilderbrandt was a "participating physician" at the time of Sam's birth.26 Miscellaneous matters Apart from resolving whether the hospital and the "participating physicians" complied with the notice provisions of the Plan, Petitioners also requested that the administrative law judge resolve whether West Coast Medical Group, Inc., and Holly Maria Bauer, R.N. (a nurse who assisted during Mrs. Anderson's labor and delivery at Helen Ellis Memorial Hospital on July 29, 2004), complied with the notice provisions of the Plan. However, West Coast Medical Group, Inc., was not a hospital, and not required to contribute to the NICA program, and Nurse Bauer was not shown to have been eligible to participate, or to have elected to participate. Consequently, they had no obligation to give notice. § 766.316, Fla. Stat. ("Each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited . . . no-fault alternatives for birth-related neurological injuries.") Petitioners have also requested that the administrative law judge resolve whether the hospital, participating physicians, CNM Hilderbrandt, West Coast Medical Group, Inc., and Nurse Bauer are entitled to immunity under Section 766.303(2), Florida Statutes. (Petition for Determination of Availability of NICA Coverage, paragraphs 41 b and e; Prehearing Stipulation, page 2, Petitioners' Statement of the Nature of the Controversy). However, the jurisdiction of an administrative law judge is limited to whether the infant has sustained a birth-related neurological injury, whether obstetrical services were delivered by a participating physician at the birth, how much compensation is awardable, and, if raised, whether the notice provisions of the Plan were satisfied. § 766.309(1), Fla. Stat. Whether any person or entity is entitled to invoke the immunity from tort liability provided for in Subsection 766.303(2), Florida Statutes, is not within the jurisdiction of the administrative law judge to resolve. Depart v. Macri, 902 So. 2d 271 (Fla. 1st DCA 2005); Gugelmin v. Division of Administrative Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002). Consequently, these issues will not be addressed.
The Issue At issue is whether Christopher 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.
