The Issue Whether Loren Romine, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement of a civil action for medical malpractice against the treating obstetrician and hospital, bars them from recovering benefits under the Plan.
Findings Of Fact Findings related to compensability John Romine and Rebecca Romine are husband and wife, as well as the natural parents and court-appointed guardians of the property of Loren Romine (Loren), a minor. Loren was born January 26, 1998, at Columbia Regional Medical Center - Oak Hill, a hospital located in Brooksville, Hernando County, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Loren's birth was Samir Shakfeh, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who have suffered 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." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Loren sustained a "birth-related neurological injury," as that term is defined by the Plan. Findings related to the settlement of the civil action On December 29, 1998, the Romine family served a Notice of Intent to Initiate Litigation, pursuant to Section 766.106, Florida Statutes, on Dr. Shakfeh and Columbia Regional Medical Center - Oak Hill. At the conclusion of the 90-day pre-suit screening period, both the doctor and the hospital denied the claim and on April 12, 1999, the Romine family filed suit against the doctor and the hospital in the Circuit Court of Hernando County. That case was styled John Romine and Rebecca Romine, as parents and next friends of Loren Romine, a minor, and John Romine and Rebecca Romine, individually, Plaintiffs, v. HCA Health Services of Florida, Inc., d/b/a Columbia Regional Medical Center - Oak Hill, and Samir Shakfeh, M.D., Defendants, Case No. 99-857-CA01-Law. Both the doctor and the hospital denied liability and raised, as an affirmative defense, Plan immunity. Petitioners replied to that defense, and alleged that the doctor and the hospital failed to provide notice as required by the Plan. Section 766.316, Florida Statutes. On November 29, 2000, the hospital filed a Motion to Abate the civil action until the Romines filed a petition for Plan benefits with the Division of Administrative Hearings and an administrative law judge had resolved whether Loren had suffered a compensable injury and whether the doctor and the hospital had complied with the notice provisions of the Plan. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") The Motion to Abate was never set for hearing, and the case proceeded to mediation on December 7, 2000. Following mediation, the Romine family, the doctor, and the hospital, as well as the doctor's and the hospital's malpractice insurance carriers, reached an agreement to settle the civil suit. The settlement provided for an immediate cash payment to John Romine, Rebecca Romine, and Loren Romine, and the purchase of annuities for each of them. The total present value of the settlement was $5,250,000. The written agreement between the Romines and the hospital included the following stipulation: The parties agree that no part of the Settlement is intended to impair in any manner plaintiff's rights to pursue NICA benefits nor is it intended to be a release of any NICA benefits that may be due plaintiffs. It has always been and remains the position of the Defendant that this claim is covered by NICA. The Defendant agrees that it will take no action and refrain from doing anything to defeat or disparage plaintiff's NICA claim in any way . . . . The written settlement agreement between the Romines and the doctor contained a similar stipulation. On or about January 18, 2001, the Romines filed a Petition for Approval and Apportionment of Settlement Involving Minor in the civil suit. And, on or about January 23, 2001, the Guardian Ad Litem filed a written report with the court, and recommended approval of the settlement and apportionment of the settlement as proposed by the Romines. A hearing was held before the trial court on January 26, 2001, and on the same date the trial court entered an order granting the Petition for Approval and Apportionment of Settlement. The order further provided, as follows: 3. Nothing about this settlement is intended by the parties or this Court to limit or reduce the amount of compensation which may be recoverable by the Petitioners or LOREN ROMINE in a subsequent NICA proceeding, or from any other governmental program or private health insuror. NICA was not a party to the settlement agreements entered into between the Romine family and the healthcare providers, nor was it advised of and nor did it participate in the hearing on the Petition for Approval and Apportionment of Settlement. After the settlement was approved by the trial court, the settlement funds were disbursed to the Romines and releases were exchanged. Petitioners filed their claim for benefits under the Plan on June 14, 2001, seeking actual expenses for, inter alia, Loren's medical and hospital care, and a lump sum award to Mr. and Mrs. Romine of $100,000.
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).
The Issue The issue to determine in this matter is whether the minor child should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Association Plan.
Findings Of Fact On October 16, 2018, Petitioner Brandi L. Jennings was admitted to St. Joseph's to deliver her child (Killian). As part of her admission that day, Ms. Jennings signed a Receipt of NICA Information ("Receipt") presented to her by St. Joseph's pursuant to section 766.316. The Receipt notified Ms. Jennings that St. Joseph's was furnishing her information prepared by NICA, and stated that "certain limited compensation is available in the event certain types of qualifying neurological injuries may occur during labor, delivery or resuscitation." By providing Ms. Jennings this Receipt, St. Joseph's complied with the terms of the NICA notice requirement set forth in section 766.316. On October 18, 2018, Ms. Jennings gave birth to Killian at St. Joseph's. Killian was born a live infant weighing at least 2,500 grams. However, during the course of labor, delivery, or resuscitation in the immediate postdelivery period, Killian sustained an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury, which rendered him permanently and substantially mentally and physically impaired. (Killian was ultimately diagnosed with hypoxic-ischemic encephalopathy.) As such, Killian's injury qualifies as a "birth-related neurological injury" as defined in section 766.302(2). Killian was delivered by obstetrician, Kathryn Leenhouts, M.D. Dr. Leenhouts was the only physician who directly provided obstetrical services to Ms. Jennings in the course of her labor and delivery or in the immediate postdelivery period at St. Joseph's. At the time of Killian's birth, Dr. Leenhouts was not employed by St. Joseph's. Instead, Dr. Leenhouts worked for Exodus Women's Center, where she, along with other members of that group, had previously applied for and were granted staff privileges at St. Joseph's. During the year of Killian's birth (2018), Dr. Leenhouts did not pay the assessment set forth in section 766.314, which is required for participation in the NICA Plan. Neither was any evidence offered to establish that Dr. Leenhouts was exempt from payment of the assessment for 2018. Consequently, Dr. Leenhouts was not a "participating physician" in the Plan as that term is defined by section 766.302(7). St. Joseph's, on the other hand, was current with its assessment payments under section 766.314 for 2018. Based on "all available evidence" in the record, Petitioners' claim does not meet the statutory requirements for compensability under the Plan. The evidence produced at the final hearing establishes that the obstetrical services provided at Killian's birth were not delivered by a "participating physician" as defined in section 766.302(7). Therefore, Petitioners' claim does not meet the requirements for compensation under section 766.309(1), and Killian is not eligible for an award of NICA benefits under section 766.31.
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.
