The Issue Whether obstetrical services were delivered by a participating physician in the course of labor and delivery. If so, whether notice was accorded the patient as contemplated by Section 766.316, Florida Statutes.1
Findings Of Fact Fundamental findings Petitioner, Lisa Gilcreast, is the mother and natural guardian of Kara Gilcreast, a minor. Kara was born a live infant on May 28, 2000, at Bayfront Medical Center, Inc. (Bayfront Medical Center), a hospital located in St. Petersburg, Pinellas County, Florida, and her birth weight exceeded 2,500 grams. Coverage under the Plan A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes. See also Section 766.309(1), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Kara sustained a "birth- related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. What remains in dispute is whether obstetrical services were rendered by a "participating physician" at birth. The "participating physician" issue Section 766.302(7), Florida Statutes, defines the term "participating physician," as used in the Plan, to mean: . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred . . . . And, Section 766.314(4)(c), Florida Statutes, describes the circumstances under which a resident physician, assistant resident physician, or intern may be deemed a participating physician without payment of the assessment otherwise required for participation in the Plan, as follows: . . . if the physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule, and is supervised by a physician who is participating in the plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment Supervision shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features . . . . (Emphasis added) Pertinent to this case, the proof demonstrates that the physicians providing obstetrical services during the course of Kara's birth were resident physicians3 in Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology.4 The proof further demonstrates that during that time, Dr. Karen Raimer, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (Plan), was the supervising physician, and that she was in the hospital and easily available (by beeper or overhead page through the hospital operator) to consult with or assist the residents if they requested. However, Dr. Raimer was never called by the residents, and she did not provide any obstetrical services during the course of Ms. Gilcreast's labor or Kara's birth.5 As heretofore noted, "supervision," as defined by Section 766.314(4)(c), Florida Statutes, "require[s] that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features." Here, while the supervising physician was easily available, there was no compelling proof that "the supervising physician . . . [had] a prearranged plan for treatment of specified patient problems which the supervised . . . physician . . . [could] carry out in the absence of any complicating features" (the prearranged plan for treatment). Consequently, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. In reaching such conclusion, Dr. Raimer's testimony regarding the residency program at Bayfront Medical Center, as well as her perceptions on the existence of a prearranged plan of treatment, has been considered. In this regard, it is noted that Dr. Raimer's role as supervising physician, or attending physician as it was known in the residency program, was to be available if the residents had any questions or concerns regarding patient care, and if her assistance was not requested, as it was not in this case, she did not involve herself in the labor and delivery. Under such circumstances, as is the practice in the residency program, the residents are left to manage the patient's care, with the more senior resident supervising the more junior. As for resident supervision in this case, Dr. Raimer offered the following observations: Q: And so [w]as . . . [Dr. Marler] the person for the shift on Sunday, May 28, 2000, who was responsible for the supervision of the other residents? . . . [A]s far as I remember, Dr. Marler was the chief resident on that day, the fourth-year. Q. Is there any resident that's higher than the chief resident? A. No. Q. So if he's there - A. Then he was responsible. * * * Q. So he was responsible to supervise the senior residents, the third-year residents, the second-year residents, and the first-year residents; is that correct? A. That's correct. Q. And you relied upon him to do that? A. Yes. [Joint Exhibit 2, pages 50 and 51] As for a preexisting plan of treatment, Dr. Raimer offered the following observations: Q. Now, in May 2000, did you have any prearranged plan of treatment for specified patient problems which the resident may carry out in the absence of any complicating features? All of the residents in their training as they go through the four years, it’s a cumulative knowledge base and experience base that develops. And by the time that they get through their fourth year and about to graduate and get to that point, if they are a fourth-year, we feel that they are competent in knowing how to manage cases that have complicating features, and if not, they can call their attending physician. * * * . . . [Again], residents during their training are expected to learn how to manage patients throughout their four years of experience. And, again, by the time they get to their fourth year, they are expected to know how to manage patients on an obstetrical unit and manage complicating features. If there is any concern or any question, they are to call their attending physician. [Joint Exhibit 2, pages 47 and 48] From Dr. Raimer's testimony, it is apparent that, unless requested to do so, the supervising physician does not participate in the preparation of a plan of treatment. Rather, it is customary, as was done in the instant case, for the chief resident to develop the plan. Therefore, as heretofore noted, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. The notice issue Pertinent to the notice issue, the proof demonstrates that Ms. Gilcreast received her prenatal care at Bayfront Women's & Children's Health Center (the Clinic), an outpatient facility established by Bayfront Medical Center to provide obstetrical services to lower income families in mid-Pinellas County, and located at 7995 66th Street, North, Pinellas Park, Florida. Staffing at the facility included faculty of, and residents participating in, Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology, as well as two perinatologists and three nurse midwives, all of whom were employed by Bayfront Medical Center.6 Notably, at her first visit to the Clinic, Ms. Gilcreast (age 18, with her first pregnancy) met with Cynthia McNulty, a patient representative, for a new patient orientation. During that orientation, which lasted from 45 minutes to 1 hour, Ms. McNulty addressed a number of matters with Ms. Gilcreast, including financial matters (Florida Medicaid), Healthy Start (for which Ms. Gilcreast filled out an application), W.I.C. (a nutritional counseling program and monthly food check program), the prenatal care plan she could expect at the clinic, and who to contact in case of emergency. Ms. McNulty also provided Ms. Gilcreast with an American Baby Basket packet (which contained parenting and educational materials, as well as samples of baby products), magazines for parenting and breast feeding, and scheduled her next appointment. Finally, at some point during the orientation, Ms. McNulty showed Ms. Gilcreast a brochure titled "Peace of Mind for an Unexpected Problem."7 That brochure, prepared by NICA,8 contains a concise explanation of the patient's rights and limitations under the Plan; however, Ms. McNulty described the brochure as a . . . $100,000 . . . insurance policy, that . . . [if] the baby was neurologically injured . . . the parents would collect $100,000, and any further questions they could call the association, . . . [at] the number . . . on the back, or talk to the physicians. [Transcript, pages 68 and 69.] Copies of all the papers they discussed, including the NICA brochure, were placed in the American Baby Basket packet, a clear plastic bag, by Ms. McNulty and given to Ms. Gilcreast. Subsequently, Ms. Gilcreast discarded many of the materials she received during the orientation, and there is no proof of record that would lead one to conclude that she read the NICA brochure or was otherwise informed of its actual contents.
Findings Of Fact Lukas was born on December 23, 2017, at Sacred Heart Hospital, located in Escambia County, Florida. Donald Willis, M.D. (Dr. Willis) was requested by NICA to review the medical records for Lukas. In a medical report dated January 14, 2020, Dr. Willis summarized his findings and opined in pertinent part as follows: In summary, labor was induced at 37 weeks due to a prior fetal demise. The newborn was depressed at birth with Apgar scores of 1/6/7. Bag and mask ventilation was required for 2-minutes. The initial blood gas after birth had a base excess of -16. The baby was anemic at birth. Evaluation identified adrenal hemorrhage as the etiology for the anemia. MRI on DOL 9 showed a small subarachnoid hemorrhage. The mother was being treated with Lovenox, an injectable anticoagulant. Lovenox does not cross the placenta and would not be factor in the fetal adrenal or subarachnoid hemorrhage. The adrenal and subarachnoid hemorrhage were more likely related to birth related hypoxia. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain. Based on the cord blood gas pH >7.1, it is unlikely any significant oxygen deprivation occurred prior to birth. However, some degree of oxygen deprivation likely occurred in the immediate post-delivery period, based on the base excess of -16 on the initial blood gas in the nursery and both adrenal and subarachnoid hemorrhages identified by ultrasound. I am unable to comment on the severity of the brain injury. NICA retained Raj D. Sheth, M.D. (Dr. Sheth), a medical expert specializing in maternal-fetal medicine and pediatric neurology, to examine Lukas and to review his medical records. Dr. Sheth examined Lukas on February 18, 2020. In a medical report dated March 8, 2020, Dr. Sheth summarized his examination of Lukas and opined in pertinent part as follows: In SUMMARY, Lucas’s [sic.] neurological examination reveals evidence of behavioral problems, and stereotypic behaviors with expressive language delay concerning for autism spectrum disorder, and generalized axial hypotonia and mild appendicular hypertonia evidenced only in gait, with apparent preserved visual acuity, and a history of epilepsy that started at age 6 months and generalized tonic clonic seizures with a history of 4 fever related seizures. Much of Lucas’s [sic.] neonatal course was detailed in the history of present illness. He was born at 37 weeks gestation. Delivery was vaginal with an epidural. The NICU team was called emergently to labor and delivery patient appeared depressed and unresponsive pale. Positive pressure ventilation for about 2 minutes was undertaken. Spontaneous breaths were established at this time. Heart rate improved within 30 seconds of positive pressure ventilation. By 40 minutes of age the patient was active normal tone had a good gag good suck responsive pupils and normal Moro. Serial neuro exams for the next 24 hours of life were normal. He was not felt to meet criteria for brain cooling. MRI revealed a slight extra-parenchymal hemorrhage in the subarachnoid space without significant intra- parenchymal involvement. While he has seizures they did not develop till he was approximately six months old and he was not noted to have neonatal seizures. His head appears to be growing appropriately with regards to head size. He has not had a genetic evaluation or developmental pediatrics evaluation. As such Lucas [sic.]would not appear to meet NICA specified criteria for compensation under the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Lukas. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Sheth’s opinion that Lukas should not be considered for inclusion in the NICA program. Dr. Sheth’s opinion is credited. The Unopposed Motion for Summary Final Order states that “Respondent has conferred with Petitioners’ attorney and is authorized to represent that Petitioner is in agreement and not opposed to this motion.”
The Issue At issue is whether Samer Abifaraj, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the notice requirements of the Plan were satisfied. If so, whether the Division of Administrative Hearings has the exclusive jurisdiction to resolve or, alternatively, must preliminarily resolve, whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan benefits and pursue a civil suit.
Findings Of Fact Fundamental findings Petitioners, Bassam Abifaraj and Rayya Abifaraj, are the parents and natural guardians of Samer Abifaraj (Samer), a deceased minor, and co-personal representatives of their deceased son's estate. Samer was born October 30, 1997, at Plantation General Hospital, a hospital located in Broward County, Florida, and died December 4, 1997. At birth, Samer's weight exceeded 2,500 grams. The physician providing obstetrical services at Samer's birth was John L. Rinella, M.D., who was at all times material hereto a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded, and the parties agree, that Samer suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA proposes to accept the claim as compensable under the Plan. NICA's conclusion is consistent with the proof, and its proposal to accept the claim as compensable is approved. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the hospital and participating physician failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the health care providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000). Regarding the notice issue, it is resolved that on June 3, 1997, Mrs. Abifaraj was provided timely notice that Dr. Rinella was a participating physician in the Plan, together with notice as to the limited no-fault alternative for birth- related neurological injuries provided by the Plan. Such conclusion is based on the more credible proof which demonstrates that on such date, when Mrs. Abifaraj presented to Dr. Rinella's office, Belinda Jill Pettitt, a medical assistant at the time, gave Mrs. Abifaraj a brief explanation of the Plan, as well as a form titled INFORMED CONSENT OF MY PHYSICIAN'S PARTICIPATION IN THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN (NICA). The form further provided: I hereby acknowledge that: I have been advised that Dr. John Rinella (OB), MD is a participant in the NICA Plan; I have been furnished with a copy of the NICA brochure which describes the NICA Plan and my rights and limitations under the NICA Plan; I understand that the no-fault aspects of the NICA Plan will serve as an exclusive remedy for injury which qualifies under the NICA Plan and that as a result I am forfeiting any and all rights to bring legal action in a Court of Law for damages in connection with such injuries; Any questions I may have had regarding my physician's participation in the NICA Plan and my rights and limitations under the NICA Plan have been answered to my satisfaction; I hereby consent to obstetrical services having been given notice pursuant to Florida Statutes 766.316 by my physician of the applicability of NICA upon such obstetrical services. Contemporaneously, Ms. Pettitt gave Mrs. Abifaraj a copy of the brochure (prepared by NICA) titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Ms. Abifaraj acknowledged her understanding of the form, as well as receipt of the NICA brochure, by dating and signing the form.3 While Mrs. Abifaraj received notice on behalf of the participating physician, the proof failed to demonstrate that Plantation General Hospital provided any pre-delivery notice, as envisioned by Section 766.316, Florida Statutes. Moreover, there was no proof offered to support a conclusion that the hospital's failure to accord Mrs. Abifaraj pre-delivery notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. Rather, the health care providers contend that the hospital's failure to give notice is inconsequential when, as here, the patient's obstetrician has accorded notice of his participation in the Plan. Whether, as contended by the health care providers, the hospital's failure to accord Mrs. Abifaraj notice should be overlooked, as harmless, is addressed in the Conclusions of Law.
The Issue The petition (claim) filed on behalf of Petitioners presented the following issues for resolution:1 Whether the claim is compensable under the Florida Birth-Related Neurological Injury Compensable Plan (Plan). Whether the notice provisions of the Plan were satisfied. Whether the exclusiveness of remedy provision of the Plan is an available defense to a nurse midwife or hospital when no civil claim has been made against the participating physician. Whether the amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes (Supp. 1998), which accorded the administrative forum exclusive jurisdiction to resolve whether claims are covered by the Plan, may be applied retroactively.
Findings Of Fact Fundamental findings Petitioners, Maria Ferguson (formerly known as Maria Mish) and Garry Ferguson, are the parents and natural guardians of Casey Ferguson, a minor. Casey was born a live infant on January 28, 1997, at Morton Plant Mease Health Care, Inc., d/b/a Mease Hospital Dunedin (Mease Hospital), a hospital located in Dunedin, Florida, and her birth weight exceeded 2,500 grams. The physician who provided obstetrical services during Casey's birth was Harvey A. Levin, M.D., and he was, at the time, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Services were also provided during the course of birth by Lenore V. McCall, a certified nurse midwife (C.N.M.). At the time, Ms. McCall had not paid the assessment requirement by Section 766.314(4)(c) and (5)(a), Florida Statutes, and was not a "participating physician" in the Plan. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded, and the parties have stipulated, that Casey suffered a "birth-related neurological injury," as defined by the Plan. NICA's conclusion, as well as the parties' stipulation, is grossly consistent with the record. Consequently, since obstetrical services were provided by a participating physician at birth, the claim is compensable, and NICA's proposal to accept the claim is approved.3 Sections 766.309(1) and 766.31(1), Florida Statutes. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the participating physician who delivered obstetrical services at birth (Dr. Levin), as well as the hospital (Mease Hospital), failed to comply with the notice provisions of the Plan.4 Consequently, it is necessary to resolve whether, as alleged by the health care providers, the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth- Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000), and University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001). Pertinent to this issue, it is worthy of note that, at the time of Casey's birth, Section 766.316, Florida Statutes, prescribed the notice requirements, as follows: Notice to obstetrical patients of participation in the plan.--Each hospital with a participating physician on its staff and each participating physician . . . under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth- related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. It is further worthy of note that NICA developed a brochure titled "Peace of Mind for An Unexpected Problem" to comply with the statutory mandate, and distributed the brochure to participating physicians and hospitals so they could furnish the brochure (form) to their patients. Turning now to the case at hand, it is observed that Mrs. Ferguson received her prenatal care at A Woman's Place, an office maintained for the practice of obstetrics and gynecology by Harvey A. Levin, M.D., and A. Trent Williams, M.D., at 5347 Main Street, Suite 302, New Port Richey, Florida. Also active in the practice were a number of midwives, including Lenore McCall. Of note, Doctors Levin and Williams delivered exclusively at Mease Hospital Dunedin. Regarding her care, the proof demonstrates that Mrs. Ferguson's initial visit to A Woman's Place occurred on May 30, 1996. As would be expected, Mrs. Ferguson initially presented to the front window (front desk), registered her presence (by writing her name on the pad at the front window), and then took a seat in the waiting room. Shortly thereafter, Mrs. Ferguson was recalled to the front window and given a number of forms (referred to as a packet in this proceeding) to fill out, date, sign, and return before she could be seen by a healthcare provider. Among the documents she completed and returned to the front desk was a form titled Notice to Obstetric Patient,5 which provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by A WOMAN'S PLACE AND/OR MEASE HOSPITAL prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Drs. Levin and Williams are participating physicians in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 199 . Signature (NAME OF PATIENT) Social Security Number Attest: (Nurse or Physician) Date: Here, Mrs. Ferguson acknowledges receipt of the Notice to Obstetric Patient, and therefore notice that Doctors Levin and Williams were participants in the Plan, but denies receipt of the brochure prepared by NICA. Notably, it is that brochure, titled Peace of Mind for An Unexpected Problem, which contains the "clear and concise explanation of a patient's rights and limitations under the [P]lan" required by the notice provisions of Section 766.316, Florida Statutes.6 In response to Mrs. Ferguson's denial, and to buttress its argument that Mrs. Ferguson received the brochure, Mease Hospital offered proof regarding the customary practice employed by A Woman's Place for all new patients. According to Joanie Perkins, the OB coordinator, all new patients were routinely handed a number of forms (the packet) to fill out on their first visit, including the Notice to Obstetric Patient, with a copy of the NICA brochure attached. The packets were prepared by Ms. Perkins once or twice a month in quantities of 20 or 30, and stored at her desk until needed. Then, the day preceding a new patient's first visit, she would place a packet inside the new patient's file (also referred to as a chart) and give the file to the front desk clerk. On arrival, the front desk clerk would hand the packet (on a clipboard) to the new patient. When returned to the clerk, the forms were then given back to Ms. Perkins, who would put them in the patient's chart. Following completion of the forms, a new patient was routinely seen by Ms. Perkins, who entered certain basic information on the patient's antepartum record (such as, the date of the first visit; the patient's name, address, date of birth, and insurance carrier; the hospital where delivery was to occur; and height and weight). It was also during this period that Ms. Perkins routinely distributed to the new patient what was referred to as the OB packet. That packet included a folder from Mease Hospital (also referred to by the hospital as their baby book), which contained information about the hospital and other materials, including pre-registration papers. The OB packet also included a prenatal care booklet, as well as education materials pertaining to Lamaze and exercise classes, and information pertaining to anesthesia. Samples of pre-natal vitamins, coupons for diaper bags, and other miscellaneous materials were also included in the OB packet. Following her meeting with Ms. Perkins, the new patient was then referred to a physician or nurse midwife to complete her initial visit. Contrasted with the conclusion one would draw from her acknowledgment execution of the Notice to Obstetric Patient and the customary practice of A Woman's Place, Mrs. Ferguson testified that not only was the NICA brochure not attached to the notice she signed, but the only items she received that day were a book titled Child Birth Planner and some prenatal vitamins. The reasons for Mrs. Ferguson's statements are two-fold. First, according to Mrs. Ferguson, she recalls that one of the forms referred to an attachment or additional document that was not included, and that when she brought this oversight to the attention of the front desk clerk she was unable to locate one. Of note, the only form Mrs. Ferguson signed that day that referred to another document she should have received was the Notice to Obstetric Patient. Second, Mrs. Ferguson observed that she is compulsive regarding the retention of documents, and that with regard to her pregnancy with Casey she retained every document she received from, inter alia, A Woman's Place and Mease Hospital. Those documents, which Mrs. Ferguson identified as Petitioners' Exhibit 5A-5Y at hearing, did not include a NICA brochure or a Mease Hospital baby book, but did include two pages of education materials pertaining to Lamaze and exercise classes, and information pertaining to anesthesia, all of which were customarily included in the new patient OB packet. Also included was a booklet Mrs. Ferguson received when she participated in a tour of the Mease Hospital Maternity Center. Of note, the availability of Maternity Center tours was a topic addressed in the hospital's baby book. Here, giving due consideration to the proof, it must be resolved that, more likely than not, Mrs. Ferguson received the NICA brochure on her initial visit, as evidenced by her signature on the Notice to Obstetric Patient and as one would anticipate from the customary practice of A Woman's Place. It is further resolved that, more likely than not, Mrs. Ferguson received the OB packet on her initial visit, which included a Mease Hospital baby book. In concluding that Mrs. Ferguson did receive a copy of the NICA brochure on her initial visit, the testimony of Mrs. Ferguson to the contrary, has clearly not been overlooked. However, Mrs. Ferguson's testimony, both in deposition and at hearing, demonstrates that she had very little recall of the events which took place during her initial visit. Moreover, while Mrs. Ferguson suggests that the front desk clerk could not locate a NICA brochure, the compelling proof reflects that the brochures were readily available and that staff was aware they could be obtained at Ms. Perkins' desk. In concluding that Mrs. Ferguson also received the OB packet on her initial visit, the testimony of Mrs. Ferguson to the contrary has also not been overlooked. However, for reasons similar to those noted with regard to the NICA brochure, Mrs. Ferguson's testimony has been found unpersuasive. While Mrs. Ferguson received notice on behalf of the participating physician, the proof failed to demonstrate that Mease Hospital provided any pre-delivery notice, as envisioned by Section 766.316, Florida Statutes. Moreover, there was no proof offered to support a conclusion that the hospital's failure to accord Mrs. Ferguson pre-delivery notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. In reaching such conclusion, the inclusion of the hospital's name in the Notice to Obstetric Patient provided by A Woman's Place to Mrs. Ferguson has not been overlooked. However, the reason the hospital's name was included on the form stands unexplained, and there is no proof that A Woman's Place was requested or authorized to provide notice on behalf of the hospital. Indeed, for all that appears of record, the inclusion of the hospital's name was gratuitous, and can hardly be deemed to satisfy the hospital's independent obligation under Section 766.316, to provide notice to Mrs. Ferguson.7 Finally, in concluding that the hospital did not provide pre-delivery notice as envisioned by the Plan, the testimony offered by the hospital (through the deposition of Rosemary Atkinson, Intervenor's Exhibit 1), wherein she testified that the hospital routinely included a copy of the NICA brochure in its baby book, has likewise not been overlooked. However, given the absence of proof regarding the manner in which the hospital's baby books were assembled, the method employed to distribute them to physicians, and the manner in which the books were safeguarded at the physician's office prior to distribution, such proof is inadequate to allow a conclusion to be drawn with any sense of confidence that a baby book given to a patient, such as Mrs. Ferguson, contained a NICA brochure. Moreover, even if it could be demonstrated that the baby book contained a copy of the NICA brochure (commingled with other papers) when it was given to Mrs. Ferguson, the absence of any statement or explanation to draw her attention to the brochure, or its significance, could hardly be considered notice as that word is commonly understood and as that word is used in the Plan.
The Issue Whether Darius Jerome Durant has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in their claim for compensation. 1/
Findings Of Fact Darius Jerome Durant is the natural son of Jerome Durant and Marie Deneen Durant. He was born on August 21, 1991, at Winter Haven Hospital, in Winter Haven, Florida, and his birth weight was in excess of 2500 grams. Darius was delivered by Peter Verrill, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan. The neurological examinations of Darius reveal that he suffers from a "mild" right Erb's palsy related directly to an injury to the right brachial plexus he suffered during the course of delivery. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, the impairment from which he suffers is not substantial in nature and, while suffering some motor developmental delay, he was not shown to have suffered any intellectual deficit due to any birth-related complications.
The Issue Whether Hunter Lewis, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Petitioners, Angel Lewis and Jerry Lewis, are the parents and natural guardians of Hunter Lewis, a minor. Hunter was born a live infant on June 2, 2000, at Tallahassee Memorial Hospital, a hospital located in Tallahassee, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Hunter's birth was Arthur S. Clements, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.1 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. The cause and timing, as well as the significance of Hunter's neurologic impairment To address the cause and timing of Hunter's neurologic impairment, as well as its significance, Petitioners offered selected medical records relating to Hunter's birth and subsequent development (Petitioners' Exhibit 1); the Verified Medical Opinion of Richard J. Inwood, M.D., a neonatologist (Petitioners' Exhibit 2); and the deposition of Donald C. Willis, M.D., an obstetrician (Petitioners' Exhibit 3). In turn, Respondent offered the deposition of Paul R. Carney, M.D., a pediatric neurologist (Respondent's Exhibit 1). As for the significance of Hunter's impairments, it was Dr. Carney's opinion, based on the results of his neurologic evaluation of November 21, 2002, that Hunter's assessment "indicates substantial cognitive and language impairment," but "very mild long tract neurological findings." Dr. Carney described Hunter's developmental delay as static, as opposed to progressive, and he ventured no opinion as to the cause or timing of Hunter's impairments. As for Dr. Inwood, he was of the opinion that: . . . Hunter Lewis [ ] was delivered by induced labor prior to 38 weeks and had immature lungs. Because of the immaturity of the lungs he suffered hypoxic insult and, to a reasonable degree of medical probability, sustained significant neurological injury. This injury would not have occurred had his delivery been delayed until he had demonstrated lung maturity. His problems are not congenital and did not occur during labor or delivery, but rather after delivery . . . . Notably, Dr. Inwood did not further address Hunter's neurologic injury or, stated otherwise, did not speak to whether in his opinion, Hunter suffered both cognitive and motor impairment and, if so, the significance of each. As for Dr. Willis, he was of the opinion that the medical records revealed no evidence of oxygen deprivation or other trauma associated with labor, delivery, or resuscitation immediately following Hunter's birth. Significantly, the medical records are consistent with the opinions of Doctors Inwood and Willis that the cause and timing of Hunter's impairment was not associated with labor, delivery, or resuscitation, and with the opinion of Dr. Carney that, while Hunter may demonstrate substantial cognitive delay, his motor impairment is mild. Given the record, it must be concluded that the proof demonstrated, more likely than not, that Hunter's impairments were not occasioned by an injury to the brain caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital, and that he is not permanently and substantially physically impaired.
The Issue Whether Davante Smith, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physician complied with the notice provisions of Section 766.316, Florida Statutes.
Findings Of Fact Stipulated facts Tissany Standley is the natural mother and guardian of Davante Smith, a minor. Davante was born a live infant on June 27, 1996, at Florida Hospital Altamonte, a hospital located in Altamonte Springs, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Davante's birth was John V. Parker, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, Petitioner and Respondent were of the view that Davante did not suffer a "birth-related neurological injury," as that term is defined by the Plan. In contrast, Intervenors harbored a contrary opinion, but failed to produce compelling proof to support their position. Davante's birth and immediate postnatal course The medical records related to Davante's birth reveal that at or about 3:25 p.m., June 26, 1996, with an estimated delivery date of July 8, 1996, and the fetus at 38 2/7 weeks gestation, Ms. Standley presented to Florida Hospital Altamonte for induction of labor. Notably, Ms. Standley was not in labor3 when admitted, and fetal monitoring revealed a reassuring fetal heart rate. With regard to Ms. Standley's labor and Davante's delivery, the records reveal that Pitocin induction started at or about 6:00 p.m.; Ms. Standley's membranes were artificially ruptured at 7:00 p.m., with clear fluid noted; and evidence of regular uterine contractions was documented at 8:30 p.m. Thereafter, Ms. Standley's labor slowly progressed, and at 4:35 a.m., June 27, 1996, Davante was delivered with Apgars of 7 and 9, at one and five minutes, respectively.4 According to Dr. Parker's Clinical Resume, Davante's vacuum-assisted delivery was without complication. Following delivery, Davante was bulb suctioned, given tactile stimulation and blow-by oxygen by mask for five minutes, and transferred to the newborn nursery. There, initial newborn examination was normal except for evidence of tachypnea and decreased movement of the right arm. Davante's history from admission until discharge on June 30, 1996, was documented in his Clinical Resume, as follows: PROBLEMS Transient tachypnea of the newborn. The infant did not require oxygen therapy. Tachypnea resolved by 24 hours. The chest x-ray was unremarkable. Findings were consistent with transient tachypnea of the newborn. An arterial blood gas was normal in room air and transient tachypnea resolved. Patent ductus arteriosus. The infant was noted to have a heart murmur on day #1. An echocardiogram was done on June 28, 1996, and showed a small patent ductus arteriosus. The remaining cardiac structures were normal. Sepsis ruled out. The infant received three days of ampicillin and gentamicin. A blood culture was drawn on July 27, 1996, and was negative. A urine wellcogen was done and was negative. The infant remained clinically stable with normal complete blood count (CBC). Antibiotics were discontinued after three days. Blood culture remained negative and sepsis was ruled out. Right brachioplexus injury, Erb-Duchenne palsy. The infant does not move the right arm. Right hand exhibits good grasp and movement. Occupational therapy and physical therapy evaluated the infant and instructed the mother in passive range of motions. The mother is to do passive range of motion exercises five to six times a day and the baby is to be followed up on an outpatient basis with Osteen Kimberly for physical therapy and the infant is also to see Dr. Borrero in one month for evaluation. FINAL DIAGNOSES: A 38-WEEK, LARGE FOR GESTATIONAL AGE, MALE INFANT. TRANSIENT TACHYPNEA OF A NEWBORN, RESOLVED. SEPSIS RULED OUT. RIGHT BRACHIOPLEXUS INJURY, ERB-DUCHENE PALSY. SMALL PATIENT DUCTUS ARTERIOSUS. The baby's physical exam was within normal limits on the day of discharge except for palsy of the right arm . . . . The baby was discharged home with the mother on June 30, 1996, on ad lib formula feedings and is to see Dr. Iyer for routine well baby care. Appointment to be made this week. The baby is also to see Dr. Osteen Kimberly for pediatric HCC-FU for physical therapy and occupational therapy followup. The mother is to do passive range of motion exercises five to six times a day and she is instructed to call Dr. Borrero's office in one month for an appointment to evaluate brachioplexus palsy. Davante's current presentation Currently, Davante presents with a right brachial plexus palsy (an Erb-Duchenne palsy), with substantial impairment of the right upper extremity, that is likely to be permanent.5 However, apart from that physical impairment, Davante is otherwise neurologically sound, without evidence of impairment in his left upper extremity or lower extremities. Regarding Davante's mental status, there was some disagreement. Dr. Robert Cullen, a pediatric neurologist associated with Miami Children's Hospital, who examined Davante on June 3, 2004, was of the opinion that Davente evidenced a cognitive disorder (an auditory memory, sequencing and retention disorder), which was likely permanent in nature. However, he did not, at the time, consider it substantial, and Davante's subsequent development does not suggest otherwise. (Intervenors' Exhibit 1, page 22). In contrast, Dr. Michael Duchowny, also a pediatric neurologist associated with Miami Children's Hospital, who examined Davante on July 11, 2005, was of the opinion that Davante's mental status was age appropriate or, stated otherwise, normal. Here, given the absence of any proof that Davante suffers a substantial mental impairment, it is unnecessary to resolve any conflict that may exist between the opinions of Doctors Cullen and Duchowny, since absent evidence of a substantial mental impairment Davante does not qualify for coverage under the Plan. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial mental and physical impairment.). Similarly, it is unnecessary to resolve whether, if mentally impaired, such impairment is related to birth trauma, as opposed to another etiology. The cause and timing of Davante's physical impairment As for the etiology of Davante's physical impairment (a brachial plexus palsy of the upper right extremity), the proof is compelling that such impairment was the product of a right brachial plexus injury (a stretch injury to the brachial plexus) Davante suffered during the course of delivery, and was not the product of a brain or spinal cord injury. In so concluding, it is noted that a brachial plexus injury, such as that suffered by Davante, refers to damage to a network of nerves (a "plexus") that lies outside the spinal cord, and does not involve the brain or spinal cord (or, as they are commonly referred to, the "central nervous system").6 (Joint Exhibit 2, page 7 and 10; Joint Exhibit 3, page 17 and 18. See also "plexus," and "brachial p." under "plexus," Dorland's Illustrated Medical Dictionary, 28th Edition, 1994.) Consequently, Davante's injury is not compensable under the Plan. The notice issue In addition to Petitioner's claim that Davante does not qualify for coverage under the Plan, Petitioner also sought to avoid Plan immunity by averring, and requesting a finding that, the hospital and the participating physician who delivered obstetrical services at Davante's birth (Dr. Parker) failed to comply with the notice provisions of the Plan.7 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."); Board of Regents v. Athey, 694 So. 2d 46 (Fla. 1st DCA), aff'd 699 So. 2d 1350 (Fla. 1997); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188 (Fla. 1st DCA 2002). However, since the claim is not compensable, it is unnecessary for Petitioner to have a favorable resolution of the notice issue to proceed with her civil suit. Nevertheless, to avoid any further delay should the conclusion regarding compensability be disturbed, and to allow contemporaneous review of the conclusion regarding notice, the issue will be addressed. The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (1995),8 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 thereof as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. Pertinent to this case, the Florida Supreme Court described the legislative intent and purpose of the notice requirement, as follows: . . . the only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in the plan. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the "no-fault alternative for birth-related neurological injuries" a reasonable time prior to delivery, when practicable. Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997). The Court further observed: Under our reading of the statute, in order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely manner. In those cases where it is not practicable to notify the patient prior to delivery, pre- delivery notice will not be required. Whether a health care provider was in a position to give a patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis. Id. at 311. Consequently, the Court held: . . . as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery. Id. at 309. Findings related to Ms. Standley's prenatal care and notice Ms. Standley received her prenatal care at Advanced Women's Health Specialists (AWHS), Altamonte Springs, Florida, where she was first seen with regard to the pregnancy at issue on December 14, 1995. At that time, the AWHS group practice included at least three physicians: Edward S. Guindi, M.D., Jon F. Sweet, M.D., and Eileen F. Farwick, D.O. (Joint Exhibit 1-7). Whether Dr. Parker was also associated with the practice at that time is not apparent from the record; however, according to AWHS' records, he was associated with the practice by January 4, 1996. (Joint Exhibit 1-7). Pertinent to the notice issue, Ms. Standley's patient chart at AWHS included a Notice to Our Obstetric Patients form, ostensibly signed by Ms. Standley on December 14, 1995. The notice form provided, as follows: NOTICE TO OUR OBSTETRIC PATIENTS I have been furnished information by Advanced Women's Health Specialists prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Jon F. Sweet, M.D. is a participating physician in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure by NICA. Dated this day of , 19__. Signature Name of Patient SS# Attest: (Nurse or Physician) Date: Notably, the notice form does not advise Ms. Standley that any AWHS physician, other than Dr. Sweet, was a participating physician in the Plan, although it had a reasonable opportunity to do so, if any were, and the record is devoid of any proof to suggest or support a conclusion that notice was provided by Dr. Parker or that it was not practicable for Dr. Parker to provide Ms. Standley notice during her prenatal care at AWHS. § 766.316, Fla. Stat. ("[E]ach participating physician . . . shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injures."); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188, 192 (Fla. 1st DCA 2002)("The plain language of this section shows an intention that the NICA plan immunizes a physician only when he or she provides notice.") Findings related to Davante's birth and notice As for Ms. Standley's admission to Florida Hospital Altamonte on June 26, 1996, for Davante's birth, there is no proof that either Dr. Parker or Florida Hospital Altamonte provided Ms. Standley notice, although they had a reasonable opportunity to do so. There is likewise no proof to support a conclusion that there was a medical emergency or other reason that rendered it not practicable for them to have done so.
