The Issue Whether Brianna Renee Joyner, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and participating physician provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2005), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2005),1 or the giving of notice was not practicable.
Findings Of Fact Stipulated facts Chontee Joyner and David Joyner are the natural parents of Brianna Renee Joyner, a minor. Brianna was born a live infant on February 16, 2006, at Lawnwood Regional Medical Center, a licensed hospital located in Fort Pierce, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Brianna's birth by William B. King, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."2 Here, Petitioners and Intervenor took no position on whether Brianna suffered a "birth-related neurological injury." In contrast, NICA was of the view that the record failed to support the conclusion that Brianna's impairments, admittedly substantial, were birth-related. Whether Brianna suffered a "birth-related neurological injury" To address whether Brianna suffered a "birth-related neurological injury," the parties offered a Stipulated Record (Exhibits 1-22), that included the medical records associated with Mrs. Joyner's antepartal course, as well as those associated with Brianna's birth and subsequent development. The parties also offered the deposition testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine, and Raymond Fernandez, M.D., a physician board-certified in pediatrics and neurology with special competence in child neurology, who offered opinions as to the likely etiology of Brianna's impairments. Dr. Fernandez examined Brianna on July 31, 2008, and obtained the following history from Mrs. Joyner: Labor was induced at 39 weeks gestation. Her cervix was 1 cm dilated. She was given Cytotec and Pitocin, and overall duration of labor was 31 hours. Epidural anesthesia was given at 24 hours of labor. Towards the end of the labor, contractions occurred one after the other and she pushed for 2 hours. Vacuum extraction was used, but she was stuck, and she was then extracted manually. Brianna was pale and she did not cry after birth. She was given to Mrs. Joyner for "1 second" and then taken to the nursery because of breathing problems. She was transferred to the NICU because of an apneic spell. Subsequent to discharge she was referred to several specialist[s]. She was found to have a small patent ductus arteriosus that was not felt to be significant. The neurosurgeons found no clinically significant spinal abnormalities. She required PE tubes and tonsillectomy and adenoidectomy because of recurrent ear infections and apneic spells. Hearing is normal. Genetics and neurology have not arrived at a specific diagnosis. She has been enrolled in a developmental therapy program through the Early Steps Program, and has improved slowly, but she remains delayed. Brianna sat straight without support at about 13 months of age. She ambulates by scooting in the sitting position, by pulling with her legs and balancing with her arms. She tries to pull up, but only if offered assistance and encouragement by holding her hands. She reaches for objects, manipulates toys but does not play with them meaningfully, although she likes noisy toys. She rarely puts food in her mouth (Cheerios sometimes). She babbles, but no words are spoken. She does not seem to understand spoken language, but does respond to visual cues. She lifts her arms when a shirt is about to be put on. She plays pat-a-cake, but not consistently. Eye contact is improving. She smiles and is loving with family members, and tends to be anxious in the presence of strangers. She bangs blocks together, but does not stack them. She does not engage in imaginative play. She likes to be read to, and helps turn pages. She watches her younger brother and follows him around the house, and laughs when he does funny things. Physical examination revealed the following: Recent weight was 27 pounds. Head circumference 47.25 cm (approximately 20th percentile). . . . Brianna was alert. She was anxious when approached, and comforted by her mother. She did not babble. No words were spoken. Eye contact was limited. She did not point. Mainly, she sat on her mother's lap and stared about the room and sometimes looked at me. There was no indication that she understood basic verbal requests. She did not point to body parts. She was not interested in toys, and pushed them away when offered. There were no specific dysmorphic features. She has 2 hyperpigmented macular-papular skin markings on her back. One is over the thoracic spine, and the other is to the right of midline. Pupils were equal and briskly reactive to light. Eye movement was full. She tracked visually, but eye contact was limited. Face was symmetric. She swallowed well. Low axial and proximal tone, but normal tone distally in extremities. No obvious weakness noted. She sat independently. She stood and took steps, but only with both hands held by her mother. There was no involuntary movement. Deep tendon reflexes 1+ throughout. Liver and spleen were not enlarged. Funduscopic examination was limited, only able to note normal red reflexes and unable to visualize optic nerves. She inconsistently turned toward sounds and when her name was called. Based on his evaluation of July 31, 2008, as well as his review of the medical records, Dr. Fernandez was of the opinion that Brianna was permanently and substantially mentally and physically impaired. However, with regard to etiology, Dr. Fernandez was of the opinion that Brianna's impairments were, more likely than not, caused by a genetic abnormality, as opposed to a brain injury caused by oxygen deprivation or mechanical injury. In so concluding, Dr. Fernandez observed that the record did not provide evidence of an acute brain injury due to hypoxia or mechanical trauma during labor and delivery. Rather, he noted: There was mild shoulder dystocia but no evidence of upper extremity weakness. There was some medical instability after delivery but no evidence for an acute encephalopathy. Following a single fluid bolus she was then medically stable and began feeding well by the end of day 1. Hypotonia was noted initially and it has persisted without evolution or evidence of spasticity or involuntary movement. The initial brain CT scan [of February 20, 2006] showed no hemorrhage and later brain MRI [of May 18, 2006] was normal. Finally, Dr. Fernandez pointed to the report of Charles Williams, M.D., a geneticist associated with Shands Children's Hospital at the University of Florida, Division of Pediatric Genetics, where Brianna had been seen because of her developmental delay and austic-like features. That report, following chromosome analyses, identified a chromosome deletion, a genetic abnormality, that in Dr. Fernandez's opinion likely explains Brianna's global delay and physical findings. Dr. Willis reviewed the medical records associated with Mrs. Joyner's antepartal course; those associated with Mrs. Joyner's labor and delivery, including the fetal heart rate monitor strips; and those associated with Brianna's newborn course. Based on that evaluation, Dr. Willis was of the opinion that Brianna did not suffer a brain injury caused by oxygen deprivation or mechanical injury during labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis observed there was no significant fetal distress on the fetal heart monitor during labor; the baby's Apgar scores were normal (8 at one and five minutes); the baby did not require any significant resuscitation at birth (only suctioning and blow-by oxygen); and CT scan of the head on February 20, 2006, was negative, without evidence of hypoxic changes. When, as here, the medical condition is not readily observable, issues of causation are essentially medical questions, requiring expert medical evidence. See, e.g., Vero Beach Care Center v. Ricks, 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay testimony is legally insufficient to support a finding of causation where the medical condition involved is not readily observable."); Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obligated to present expert medical evidence establishing that causal connection."). Here, the opinions of Doctors Fernandez and Willis were not controverted or shown to lack credibility. Consequently, it must be resolved that the cause of Brianna's impairments was most likely a developmentally based genetic abnormality, as opposed to a "birth-related neurological injury." See Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence, a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation."). The notice issue Apart from issues related to compensability, Petitioners have sought an opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions of the Plan were not satisfied by the participating physician and the hospital. § 766.309(1)(d), Fla. Stat. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)["A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the health care providers complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat.; Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearing, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2005), prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes (2005), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). Resolution of the notice issue When, as here, the Petitioners dispute that the healthcare providers complied with the notice provisions of the Plan, "the burden rest[s] on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied." Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004). Here, the parties' Pre-Hearing Stipulation and Stipulated Record (Exhibits 1-22) provide no such evidence. Consequently, it must be resolved that Lawnwood Regional Medical Center and William B. King, M.D., failed to establish they complied with the notice provisions of the Plan, or that any such failure was excused because the patient presented in an "emergency medical condition" or the giving of notice was otherwise "not practicable."3
The Issue For the purpose of determining compensability, whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital; and whether notice was accorded the patient, 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), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Petitioners are the parents and natural guardians of Jacob. Jacob was born a live infant on January 18, 2008, at Adventist Health, a hospital located in Orlando, Florida. At the time of delivery, Mrs. Frybarger was 33 weeks and four days pregnant. Franklyn Christensen, M.D., provided obstetrical services in the course of Jacob’s delivery, and during resuscitation in the immediate post-delivery 1 Intervenors objected to the testimony of Ronald Davis, M.D., and subsequently filed a post- hearing Motion to Strike Petitioners’ Testimony of Witness Ronald Davis, M.D. The motion is granted in part and denied in part. The undersigned will not consider the testimony of Dr. Davis regarding his treatment of Jacob from February 16, 2017, through November 25, 2019, as Intervenors would suffer prejudice as they were unaware of said treatment until after Intervenor’s case-in-chief had concluded. The undersigned will consider, however, Dr. Davis’s observations and opinions as to Jacob’s mental impairment, and the undersigned concludes that Intervenors suffer no prejudice as a result. Finally, the undersigned will consider Dr. Davis’s treatment record from November 25, 2019, and Respondent’s Exhibit 6 is admitted into evidence. The undersigned concludes Intervenors will not suffer prejudice as a result. period. Dr. Christensen was a participating physician in the Plan on the date of delivery. Athena Theodosatos, M.D., assisted in the delivery. Dr. Theodosatos was a resident physician at the time of delivery, and is deemed a participating physician in the Plan at the time she rendered obstetrical services. Jacob was delivered via Caesarean-section delivery. The delivery took approximately 51 minutes to complete. At some point during the procedure, the placenta was cut, which resulted in bleeding. Accordingly, there was blood loss to the placenta and to Mrs. Frybarger. As a result, there was also blood loss to Jacob during the process of delivery and in the immediate post- delivery period. The blood loss, in turn, resulted in oxygen deprivation to Jacob during the delivery and resuscitation in the immediate post-delivery period. Jacob was a single gestation weighing over 2,500 grams at birth. Jacob suffered an injury to his brain caused by mechanical injury leading to oxygen deprivation that occurred in the course of delivery and resuscitation in the immediate post-delivery period in the hospital. There is no known genetic or congenital abnormality that resulted in Jacob’s brain injury. The injury to Jacob rendered him permanently and substantially physically impaired. There is no dispute that the injury to Jacob rendered him permanently mentally impaired. At issue is whether the injury to Jacob’s brain rendered him substantially mentally impaired. Petitioners and Respondent contend that the brain injury impairment does not rise to the level of substantial. Intervenors contend the brain injury did render him substantially mentally impaired. 2 Intervenors’ Experts Intervenors offered the testimony of Anthony Mancuso, M.D. Dr. Mancuso is board-certified in diagnostic radiology, with a subspecialty in neuroradiology. Dr. Mancuso practices at University of Florida Health, and is the Chairman of the Radiology Department at the University of Florida College of Medicine. Dr. Mancuso reviewed MRI imaging of Jacob’s brain from February 2009 and June 2012, as well as Jacob’s medical records. He opined that Jacob did suffer a hypoxic ischemic injury to his brain based on the imaging findings and the circumstances surrounding the delivery and the resuscitation of Jacob following a difficult delivery. Dr. Mancuso testified that the MRI imaging demonstrated a pattern that was entirely consistent with a hypoxic ischemic injury and that the imaging showed a substantial amount of permanent injury to the brain that would reasonably result in substantial mental and physical neurologic deficits. In terms of the frontal lobes, the parietal, the occipital lobes, the corpus callosum, and to a lesser degree the temporal lobes of Jacob’s brain, based upon the images of Jacob from approximately one year after birth and when he was approximately four years old, Dr. Mancuso opined that the imaging evidence is predictive of and supports substantial mental and 2 Pursuant to Florida Administrative Code Rule 28-106.205(1), persons other than the original parties to a pending proceeding whose substantial interests will be affected by the proceeding and who desire to become parties may move the presiding officer for leave to intervene. The undersigned acknowledges that an intervenor’s rights are subordinate to the rights of the parties and an intervenor’s status exists “only so long as the litigation continues between the parties” and is “lost altogether if the parties decided to settle the case or voluntarily dismiss it.” Louis Del Favero Orchids, Inc. v. Fla. Dep’t of Health, 2020 Fla. App. LEXIS 1531 at *5 (Fla. 1st DCA 2020) quoting Environmental Confederation of S.W. Fla, Inc. v. IMC Phosphates, Inc., 857 So. 2d 207 (Fla. 1st DCA 2003). Here, Petitioners filed their Petition “under protest,” asserting they were not “claimants” and not seeking NICA compensation. Notwithstanding, as Respondent disputes the compensability of the injury, the undersigned must, in its present posture, determine the claim. §§ 766.304, 766.309, 766.301(1) and 766.31, Fla. Stat. physical neurological deficits. Dr. Mancuso further opined that, based on the imaging, the corpus callosum, the white matter that connects the lobes, was diminished, leading to a highly disconnected brain. Dr. Mancuso opined that the brain injury, as demonstrated on imaging, would be predictive of impaired cognitive functioning as measured by intelligence tests, impaired expressive and receptive language skills, the necessity of substantial accommodations in school, below average cognitive or academic skills, impaired perceptual and processing abilities, and the necessity of special assistance to learn and develop intellectually to reach his full potential. He further opined that the diminished corpus callosum would be predictive of Jacob’s inability to transfer his cognitive skills into adequate learning in a normal manner and that his ultimate vocational options would be limited by these neurologic deficits. Dr. Mancuso, who had never seen Jacob nor treated him, credibly acknowledged that his opinions would require confirmation by physical examination and neuropsychiatric testing. The undersigned finds Dr. Mancuso’s opinions, as set forth above, credible and persuasive. Intervenors also offered the testimony of Russell Addeo, Ph.D. Dr. Addeo received his Ph.D. in neuropsychology from the University of Florida and is a board certified clinical neuropsychologist. He is the Director of Behavioral Medicine at Brooks Rehabilitation. As a neuropsychologist, Dr. Addeo makes determinations, on a daily basis, with respect to a patient’s degree of mental impairment. On March 21, 2019, when Jacob was 11 years, two months old, a Compulsory Neuropsychological Examination of Jacob was conducted at Brooks Rehabilitation. A Forensic Neuropsychological Evaluation Report was generated after the neuropsychological evaluation, assessment, and record review. Dr. Addeo’s opinions and report are based on the results of the standardized testing conducted, his analysis of depositions in this matter, review of Jacob’s educational records, medical records, and past neuropsychological exams. The criteria he considered in rendering his opinion included an analysis of cognitive function; an analysis of intelligence tests; analysis of language skills; whether special accommodations were necessary; Jacob’s perceptual and processing abilities; whether Jacob can learn and develop intellectually without substantial accommodations; whether he can translate his cognitive abilities into adequate learning; an analysis of Jacob’s social and vocational developments; and the degree to which he is impaired. Dr. Addeo testified and explained the neuropsychological exam and results in detail. His neuropsychological exam was conducted over a period of approximately seven hours. The results of the examination are fairly summarized in the 30 page report, which was admitted into evidence and addressed at length during the hearing. Dr. Addeo’s ultimate opinion is that Jacob is substantially mentally impaired. In reaching this opinion, inter alia, Dr. Addeo relied upon Steadman’s Medical Dictionary for informing himself as to what the terms “substantial” and “mental impairment” refer to. He testified that the general definition of the term “substantial” means “significantly–considerable in quantity and significantly great.” Dr. Addeo testified that “mental impairment” to him is “really a disorder characterized by the display of an intellectual defect as determined by things like diminished cognitive, interpersonal, social and vocational effectiveness and by psychological exam and assessment.” With respect to the testing, Dr. Addeo assessed Jacob’s full scale IQ to be a 52. This score, which falls in the severely impaired category, places Jacob at the .01 percentile, meaning 99.9 percent of the population’s scores are above his. In the subcomponent of verbal IQ, Jacob scored an 81. Jacob’s verbal IQ is a relative strength for him, and, if standing alone, would place him in the mildly impaired category. Jacob’s performance IQ resulted in a score of 45, placing him in the severely impaired category. Dr. Addeo acknowledged that Jacob has significant visual and fine motor skill deficits and the difficulties that the same present: It’s true, but some of it is difficult to establish, you know, to separate (visual and motor deficits from cognitive) but I tried to give tests and tried to look at how he’s doing cognitively. I don’t want to say that Jacob has got substantial mental impairment when in fact it just may be that he has some visual difficulty or that he has motor difficulty. Dr. Addeo was aware that Jacob is legally blind and, at times, utilizes a magnifier in the classroom. Jacob has nystagmus, an involuntary eye movement that makes it difficult to focus vision, which was observed during the testing. Indeed, Jacob’s eyes were observed darting up and to the right several times per minute. Dr. Addeo credibly opined that this condition “most likely” would affect his ability to focus and visualize materials. During the testing, Jacob did not utilize a magnifier, and, while not precluded from doing so, did not have the assistance of a paraprofessional (as he has at school). During the testing, Dr. Addeo attempted to remove from consideration difficulties that might be introduced due to Jacob’s visual and motor deficits. As an example, Dr. Addeo described two tests where vision is not a factor and yet Jacob still performed poorly. On one test, Jacob was asked if there were three ducks on a lake and one flies away, to state how many remained. Jacob’s answer was four. Even when told that was incorrect, Jacob would repeat that answer. He also had difficulty with determining the value of money. The results of the examination revealed the following scores: for the working memory index, fluid reasoning index, and visuospatial index he scored in the .1 percentile or lower. In the verbal comprehension index, a relative area of strength for Jacob, he scored in the 10th percentile. In math and reading, he scored at the .05 percentile (95 percent of the population better than him in academic skills). With respect to attention and concentration, Jacob scored poorly. His score on the ability to repeat digits forward and backward and sequence them was in the 1st percentile, and in the auditory attention response test, he scored in the 2nd percentile. Dr. Addeo testified that neither of these tests is affected by visual/motor deficiencies. In the Auditory Response Set Correction, Jacob scored in the .1 percentile (99.9 percent of the population scored higher). Jacob performed relatively well on verbal executive skills: similarities (25 percent), letter fluency (9 percent), category switching (16 percent), total set loss errors (37 percent), and total repetition errors (5 percent). In matrix reasoning, however, where Jacob was presented with a square composed of four red triangles, and one was missing, he could not correctly solve the problem. Notwithstanding his visual deficiencies, Dr. Addeo testified that Jacob would could see and make out the shapes and colors. With respect to language and verbal reasoning, Jacob scored in the .5 percentile in expressive vocabulary and at the 1st percentile in categorical fluency (the ability to tell category names of things: girl’s names, animals, and etc.). Jacob did relatively better in similarities, scoring in the 25th percentile. Jacob had a difficult time with comprehension of instructions, which included no visual or motor skills for the most part, obtaining a score of .1 percentile. Not surprising, based on his visual and fine motor deficits, Jacob performed poorly on spatial and visual reasoning, scoring in the .1 percentile or below. Dr. Addeo noted that Jacob’s verbal memory for stories and for lists of items was in the low average to average range. He further noted that Jacob performed better on verbal memory on this occasion than on the prior testing performed with Dr. Kanter (discussed below). Jacob’s educational history is discussed, in detail, in a separate section of this Order below. Dr. Addeo in formulating his ultimate opinion, in part, considered Jacob’s education records. Accordingly, his opinions on the matter are set forth here. As Jacob has been determined as a student with a disability pursuant to the Individuals with Disabilities Education Act (IDEA), he has an individualized educational program (IEP). Dr. Addeo reviewed Jacob’s IEPs over the years. In doing so, Dr. Addeo observed that Jacob is enrolled in an “access points” curriculum for English/language arts, mathematics, social studies, and science. Accordingly, the grading is different from courses following the general curriculum and Jacob does not have to take the same standardized tests as other children. Jacob’s IEPs document multiple accommodations and services that he receives on a daily basis while in school. Dr. Addeo credibly opined that Jacob will always require these services and accommodations to learn and develop intellectually. While some of Jacob’s language skills are better than others, he has significant difficulty with expressive and receptive language skills and impaired perceptual and processing abilities. Dr. Addeo opined that despite substantial accommodations in school, he has not achieved average cognitive or precognitive skills. While Jacob’s memory in some areas is a relative strength, he has difficulty with translating his cognitive abilities into normal learning. With respect to his future, Dr. Addeo opined that while Jacob can speak, communicate, and conduct a conversation, his social and vocational development has been drastically impaired and that his probability of employment, outside of a “benevolent employer,” is not very high. Dr. Addeo agreed that Jacob might be able to be employed in the future answering phones. The undersigned finds that Dr. Addeo’s opinions, as set forth above, and the findings set forth in the report, to be credible and persuasive. Intervenors also presented the testimony of Stewart Ater, M.D. Dr. Ater is a board certified pediatrician and neurologist with special qualifications in child neurology. In 2016, Intervenors retained Dr. Ater to conduct a neurological examination of Jacob. The examination was conducted on June 17, 2016, in Orlando, Florida, when Jacob was eight years, four months old. While Dr. Ater spent approximately 10 hours reviewing Jacob’s medical and educational records prior to the examination, the examination spanned approximately one hour. Dr. Ater’s ultimate opinion in this matter is that Jacob “does have substantial neurological problems, cognitive as well as cerebral palsy motor problems” and that Jacob satisfies the criteria for a birth-related neurological injury. Dr. Ater credibly testified, based on his training and experience, review of the available records and physical examination, that Jacob sustained a hypoxicischemic brain injury during the course of delivery and the post-delivery period. Dr. Ater testified that, upon examination, he found Jacob’s intellectual and executive functions were obviously and severely impaired. In support of this position, Dr. Ater explained that Jacob, at the age of eight, misspelled his own last name, could not accurately identify his birth month or date, and could not read the word “father.” Dr. Ater conceded that, during the examination, Jacob was able to answer questions regarding his grade, his teacher, his favorite subjects and the reasons therefore. Jacob also demonstrated some ability to follow some directions correctly and spontaneously commented upon when his counsel left and returned to the room during examination. Jacob also informed Dr. Ater that he (in the past) would advise his parents when he felt a seizure coming on and recalled the name of his seizure medication. Due to his visual deficits, it appears that Jacob had some degree of difficulty in reading the print provided during the examination. According to Dr. Ater, Jacob has impaired cognitive functioning as measured by intelligence tests and, following his evaluation, recommended that Jacob undergo a neuropsychological evaluation. Dr. Ater opined that more recent psychoeducational or neuro-psychoeducational testing is more reliable than similar testing performed at a young age as “[a]reas of the brain . . . need to develop more complex functions as children grow and get older, that children typically grow into their deficits” and “[t]hat is as the other people in their classes learn more and more complex things, these kids fall farther and farther behind.” Accordingly, Dr. Ater opines that IQ scores generally tend to be more accurate at an older age than a younger age. Based upon document review and examination, Dr. Ater opined that Jacob clearly has problems with both expressive and receptive language, but the same are not as damaged as other cognitive areas. Based upon his review of Jacob’s educational records, he opined that, despite substantial accommodations in school, he has not achieved average cognitive or pre- academic skills. Jacob, in his opinion, has impaired perceptual and processing abilities and requires substantial educational help in an exceptional student education (ESE) program and is not able to translate his cognitive capabilities into adequate learning in a normal manner. With respect to his future, Dr. Ater opines that Jacob’s social and vocational development has been drastically impaired. Dr. Ater testified that Jacob is not likely to be employed in meaningful competitive work and will not be able to live independently. The undersigned finds that Dr. Ater’s opinions with respect to whether Jacob sustained a hypoxic-ischemic brain injury during the course of delivery and the post-delivery period to be credible and persuasive. The undersigned further credits and finds persuasive Dr. Ater’s opinions regarding the reliability of more recent psychoeducational or neuro-psychoeducational testing and that that IQ scores generally tend to be more accurate at an older age than a younger age. The undersigned finds, however, that Dr. Ater’s testimony regarding the interpretation of MRI studies and the exercise of matching damaged lobes of the brain to distinct cognitive functions less persuasive than that of Dr. Mancuso, due, in part, to the limited duration of the examination. The undersigned finds Dr. Ater’s opinions concerning Jacob’s potential educational and vocational opportunities less persuasive. Respondent’s Experts Respondent retained Laufey Sigurdardottir, M.D., to review the available medical records, conduct a neurological examination, and opine as to whether Jacob met the criteria for a birth-related neurological injury and should be eligible for compensation under the Plan. Dr. Sigurdardottir is a board certified child neurologist and epileptologist. Dr. Sigurdardottir conducted an examination of Jacob on October 7, 2015, when Jacob was seven years, eight months old. A report was drafted on the date of the examination after a review of the medical records, full physical, and thorough neurological examination. She drafted an addendum to her report, dated September 8, 2017, following the review of additional MRI imaging studies and medical records. The results of her examination are fairly summarized in her report, and were admitted into evidence and addressed at the hearing. Dr. Siguardardottir’s ultimate opinion in this matter is that Jacob does not have a substantial mental impairment, but rather, a mild mental impairment. As noted in her evaluative report, Jacob’s “[o]verall developmental assessment does suggest some delays in language and comprehension as well as expressive language, but overall skills that are higher than his motor abilities.” She concluded that, “[t]he patient is found to have a permanent substantial physical impairment, but to have mild mental impairment with areas of strength in verbal realms.” Dr. Sigurdardottir testified regarding the motor impairments that Jacob has that would make standardized testing difficult: quadriplegic cerebral palsy; difficulties with fine motor skills; multiple vision abnormalities; abnormal eye movement where he has a difficult time keeping his gaze focused on what he is looking at; difficulty sweeping his eyes when attempts to read; and he is considered legally blind, even with corrective lenses. Indeed, Dr. Sigurdardottir testified that, “visual disturbance, hearing impairment and motor disability is one [sic] of the hardest things to overcome in testing true intelligence.” Dr. Sigurdardottir reviewed several prior assessments in formulating her opinions and testified regarding the same. Her review of the Battelle Inventory administered to Jacob at age eight months showed his lowest areas were in motor development (79), but all other scores (adaptive skills, personal and social development, communication and cognitive function) were within normal limits (84+). She also reviewed prior neuropsychological testing from the Volusia County School District. With respect to a neuropsychological assessment performed in 2011, she noted Jacob obtained the following scores: developmental quotient (78); personal/social (83); communication (94); and motor skills (68). Dr. Sigurdardottir explained that 78 is “borderline,” 83 is on “the cusp of completely normal,” and 94 is “completely normal.” With respect to a psychoeducation assessment completed in 2017, she noted Jacob was only given the verbal part of the Wechsler Intelligence Scale Children, Firth Edition (WISC-V), wherein he obtained a score of 76. She explained that an 85+ is within normal limits; 71-85 is borderline; and 70 and below would be considered impaired. Dr. Sigurdardottir also discussed the 2013 evaluation conducted by Dr. Kanter. She noted that, pursuant to his evaluation, Jacob’s full scale IQ was a 63; however, the verbal component of the assessment was an 83. Dr. Sigurdardottir opines that, when there is a large discrepancy in areas of strength and other areas that are very difficult to test (due to motor and visual deficiencies), the lower scores do not reflect Jacob’s true abilities. Similarly, she opined that the testing performed by Dr. Addeo is unreliable because the performance IQ portion, particularly those components that rated Jacob’s visual and motor dexterity, would underestimate his true abilities. Dr. Sigurdardottir opined that intellectual disability is not merely comprised of IQ, but rather, one must look at the individual’s adaptive skills. Accordingly, if one merely looked to Jacob’s verbal and adaptive skills upon testing, he would fall into the “borderline category,” and not that of an intellectual disability. In essence, Dr. Sigurdardottir opined that to the extent any cognitive testing requires vision or fine motor skill components, the same would be unreliable as it would underestimate Jacob’s true abilities. As a corollary, she opined that purely verbal testing and assessment is the most accurate method to determine his true mental abilities. The undersigned finds that Dr. Sigurdardottir possesses significant education, training, and expertise and is well-qualified and credentialed to render the above-noted opinions. The undersigned, however, finds her opinions with respect to limiting cognitive testing to purely verbal as less persuasive and overly restrictive. Respondent also retained Ronald Willis, M.D., a board certified obstetrician and gynecologist specializing in maternal-fetal medicine, to review Jacob’s medical records and opine as to whether Jacob sustained an injury to his brain in the course of labor, delivery, or in the immediate post- delivery period due to oxygen deprivation or mechanical injury. Dr. Willis conducted his review and authored a report on September 15, 2015, and a subsequent report on January 14, 2016, both of which contain his findings and opinions. Dr. Willis was also deposed on July 25, 2017, and his deposition was admitted into evidence without objection. Dr. Willis testified that, in his opinion, Jacob sustained an injury to his brain due to oxygen deprivation during the immediate post-delivery period. He offered no opinions on the degree or permanency of the brain injury. Dr. Willis’s opinions are credited. Respondent also retained Tushar Chandra, M.D., a board-certified radiologist, to review and opine on the previously obtained MRI images (2009 and 2012) of Jacob’s brain. Of relevance to the primary issue in this proceeding, Dr. Chandra could not provide an opinion or predict whether or not Jacob has a permanent and substantial mental or physical impairment based on the imaging alone. As Dr. Chandra explained in his deposition of February 8, 2018: Because – because what I’m looking at is anatomy, and there’s no clear correlation of anatomy with function. So to comment on that, you need a good clinical neurological examination to look at his cranial nerves, motor tests, sensory tests. For all that, you need a clinical examination. *** What my specialty is, is to say whether or not this is a normal scan. If not normal, then based on my experience, what has been the kind of injury and when, and then I usually try to say to make my recommendations. . . . But in no capacity does my expertise allow me to comment on how this kid will do clinically, because there’s no way I can know that. The undersigned finds that the above-noted opinions of Dr. Chandra are credible and persuasive. Petitioners’ Experts On March 14, 2011, prior to the filing of the instant Petition, Petitioners’ counsel referred Jacob to Robert F. Cullen, Jr., M.D., a neurologist at Miami Children’s Hospital, for a neurological evaluation. Jacob was three years, two months old at the time of the evaluation. A report was generated following the evaluation, which was admitted without objection. In the summary section of his report, Dr. Cullen noted, inter alia, that: 1) Jacob had some speech articulation difficulties and would need ongoing speech therapy; 2) was at risk for seizures over and above the general population; 3) had cognitive delays and was behind in terms of naming pictures and colors; 4) would require special educational help in school; and 5) that his employability will certainly be limited. On June 12, 2013, prior to the filing of the instant Petition, Petitioner’s counsel referred Jacob for a neuropsychological evaluation by Geoffrey Kanter, Ph.D. Jacob was five years, four months old at the time of evaluation. A report was generated following the evaluation, which was admitted without objection. Dr. Kanter did not offer testimony in this matter. Dr. Kanter documented that, at the time of the evaluation, Jacob was unable to dress himself, walk without assistance, tie his shoelaces, correctly say the alphabet, read, button his clothing, and name coins. Dr. Kanter also documented that, upon examination, Jacob’s visual acuity problems “were quite evident.” Specifically, he documented as follows: Jacob’s eyes would frequently roll upwards involuntarily. On all visual tasks, he required assistance and prompting to focus on the visual stimuli in front of him. He would focus on a particular area directed by the examiner, his eyes would roll upwards, and then he would need redirection again to focus back on the particular location on the stimulus he was previously looking at. With this type of assistance, he was able to focus on and view particular areas of visual stimuli in order to comprehend the task and make a response. However, his performance was likely clearly impacted. Dr. Kanter further observed that Jacob’s fine motor skills “were also obviously impacted,” and that his fine motor dysfunction “clearly impacted the test results on tasks with high fine motor demand.” Finally, he noted that “[o]ther fine-motor tasks were beyond his capabilities and not administered.” Jacob’s general intellectual functioning was documented by Dr. Kanter as follows: On the WPPSI-III [Wechsler Pre-School and Primary Scale of Intelligence-III], Jacob obtained a Full Scale I.Q. score of 63 which falls within the Extremely Low range (1st percentile) at a Moderate level of impairment. Sub-indices were variable with a significant strength in terms of verbal reasoning ability (Verbal I.Q. =83, 13th percentile, Low Average, Mildly impaired) versus a significant weakness in visual-spatial and visual-motor ability (performance IQ=53, .1 Percentile, Extremely Low, Severely impaired). The “Impressions and Conclusions” section of Dr. Kanter’s report is set forth, in full, below: The pattern and severity of cognitive test scores across this evaluation are consistent with the electroencephalographic and neuroradiological test findings of grossly impaired neurological functioning on a diffuse and localized basis. The EEG pointed more toward a right hemisphere locus of the seizure disorder which is consistent with relatively more spared (but still impaired) left hemispheric, verbal/language areas. The neurological dysfunction would certainly be expected to impact his cognitive capacities in the areas of processing speed, memory, and speech/language functioning to some degree. Visual skills are affected not only due to visual acuity issues (i.e., having to hold small images close to his face) but also likely visual processing problems. To some degree, it is difficult to parcel out which factor may be primary although from a functional standpoint, it does not matter. Impaired visual acuity would certainly be expected to cause visual- spatial and visualmotor processing speed problems. The parent questionnaire results from the Vineland-II and BASC-2 are consistent with the cognitive test findings in terms of how his cognitive, visual, and motor problems significantly impact his ability to engage in functional communication and functional activities. Overall, consistent with MRI and EEG results, it is evident that multiple areas of Jacob's brain were damaged, with both hemispheres affected, as well as cortical and subcortical components with global and specific cognitive and behavioral consequences. It is also important to note that at Jacob's age, certain neuro-cognitive functions have not yet developed (such as higher level executive functioning related to frontal lobe development) and as such, more specific impairments are likely to emerge as he reaches adolescence and beyond when cognitive, educational, and life tasks will present increased complexity and demand for more independent problem-solving. The severity of the cognitive and functional impairments clearly impacts his ability to function normally within an educational setting, family setting, and social setting. The impact of the pattern and severity of cognitive deficits will result in the need for special education services throughout Jacob's educational career and will greatly impact his capacity for vocational employment. Dr. Kanter’s prognosis and recommendations for Jacob, as documented in his report, are set out in pertinent part, as follows: Jacob will continue to need significant assistance throughout his educational career, into adulthood, and throughout his life. While he may develop some adaptive compensatory strategies, the severity of his areas of deficit in language, memory, and visual-motor areas in particular will not likely change in a significant functional manner. He will require special education assistance throughout school. The likelihood of Jacob successfully completing a 4-year regular college or even a 2-year college is extremely minimal. The probability for Jacob to obtain and maintain competitive employment on a full-time basis is minimal. Given the pattern and severity of deficits in the visual, cognitive, and academic realms, his employment choices will be extremely limited. It is likely that he will qualify for and require Social Security Disability. He would likely require a limited type of job placement which does not require a high degree of concentration and attention, memory, verbal expressive abilities, fine- motor skills, physical mobility, visual acumen, or writing capacity, and only under circumstances with very significant assistance and accommodations. It is unknown what type of employment setting would be able to meet such requirements. He may be able to obtain a volunteer position on a part time basis as a productive activity but we still need a great deal of direct supervision. After reaching his majority, Jacob will continue to need significant assistance with regard to most aspects of his life which includes: financial management and decision-making paying rent and utility bills decisions concerning costs, benefits, advantages, and disadvantages of residential location decisions concerning social and intimate relationships emotional coping with his disability Non-medical professionals who will need to become involved in his life include an accountant, a lawyer, and financial manager, and case manager. As he gets older, there may be a potential increase in emotional and behavioral problems which may require more assistance in understanding and dealing with his emotions and behavior. Psychotherapy on a weekly basis should be initiated immediately to provide assistance to Jacob and Mr. and. Mrs. Frybarger, and his school to help him develop adaptive coping strategies to deal with understanding his impairments and disability. Psychotherapy on an as needed basis will be required from now through adulthood. Issues with physical disability (quadriplegia, visual dysfunction) as well as cognitive dysfunction will certainly eliminate Jacob's ability to drive. He will need an aide to help transport him as he gets older. He will need assistance for other functional activities such as shopping. Given the combination of cognitive as well physical disability, he will likely require assistance for cooking and cleaning once he reaches his majority. Overall, taking into account all the areas of impairment, it is likely that he will require approximately 24 hour seven day per week professional aide assistance if his parents are unable to care for him and provide for all of his needs. So long as he is with his parents, he will still need assistance for the time be is outside of the house whether within a very structured school setting, sheltered vocational setting, or within any other environment. Finally, as noted, Jacob will continue to require professional speech therapy, physical therapy, occupational therapy services, and counseling beyond that which the school provides. Petitioner offered the testimony of one of Jacob’s treating physicians, Ronald Davis, M.D. Dr. Davis is board certified in general pediatrics, adult and pediatric neurology, and has a special qualification in epilepsy. Jacob was presented to Dr. Davis in 2012 for a second opinion. Following the initial evaluation, Dr. Davis confirmed the diagnosis of spastic quadriplegic cerebral palsy and partial epilepsy. Dr. Davis most recently treated Jacob on November 25, 2019. Dr. Davis testified that this treatment of Jacob focused on “seizure- related issues, developmental aspects, and in particular for that is the spastic cerebral palsy, so treatment approaches to try to improve range of motion, functionality of motor skills ” Based upon his care and treatment, Dr. Davis opined that Jacob does not have a substantial mental impairment. He reported that Jacob was doing well cognitively, noting that he was making passing grades in his ESE classes and was conversational in speech. Dr. Davis explained that Jacob is not a “total care” patient--that is a patient who requires total care and who is not interactive. Dr. Davis explained that a total care patient would have a substantial mental impairment. Dr. Davis testified that he anticipates Jacob to progress in the future, both mentally and physically, if he continues treatment. The undersigned finds that Dr. Davis possesses significant education, training, and expertise and is well-qualified and credentialed to render the above-noted testimony as one of Jacob’s treating physicians. The undersigned finds his ultimate opinion with respect to whether Jacob has a substantial mental impairment to be less persuasive; however, as his methodology for arriving at the opinion is overly restrictive. Family testimony: Jacob testified on his behalf and was able to provide limited, but primarily appropriate, responses to questions concerning his family (members, pets, parents’ employment), his favorite educational topics and teachers, his current grades, his ability to use technology, and hobbies. Jacob, who was almost 12 years old at the time of the hearing, attended the entire hearing at counsel’s table. Jacob was observed to have a very pleasant and friendly demeanor. Throughout the hearing, Jacob was observed to be calm, compliant, cordial and respectful of the proceeding. The undersigned was able to hear and comprehend Jacob’s speech. He was observed providing limited, but appropriate, greetings and responses; communicating on occasion with his legal counsel; and expressing his basic needs and wants. Petitioner’s mother, Shannon Frybarger, testified that Jacob is not impulsive, but rather, mature, independent, and responsible. In comparing Jacob to her elder son, she opined that Jacob is the more mature of the two. Mrs. Frybarger testified that he is able to stay home alone, for a period of time, and independently recalls when he is required to take medication. She opined that Jacob has consistently and successfully progressed in school and is confident the he will ultimately matriculate to college, and then to a career. Educational history As noted above, Jacob has been identified, evaluated, and determined to be a student with a disability under the IDEA. The evidentiary record indicates that he was evaluated by Child Find services through the Volusia County School District on January 10, 2011, when he was just under three years old. There, he was served through the Early Steps program for occupational therapy (OT), physical therapy (PT), and communication therapies. At that time, his primary exceptionality was noted, in his IEP, to be orthopedically impaired, with secondary exceptionalities including OT, PT, and other health impaired (OHI). When Jacob entered kindergarten, he participated in the general education curriculum with accommodations and intensive support in language arts, math, communication, social skills, and independent function. He was placed in a “separate class” educational setting, wherein he was with non-exceptional students less than 40 percent of the school day. He received specialized instruction, daily, in language arts, math, social studies, social skills, communication, and independent functioning. He also received supplemental aids and services such as text, picture and/or object support for communication and learning; digital text; and adapted computer access. The following year, he began receiving, in addition to prior services, special instruction for 30 minutes per week in a visually impaired setting. At that time, it was determined that he would be able to participate in state and district-wide assessment programs with a number of test accommodations. On November 30, 2016, through January 11, 2017, Jacob was referred to Cynthia M. Fraser, Ph.D., a school psychologist with the School District of Volusia County. The documented referral was to obtain measures of his intellectual ability, academic achievement, and adaptive behavior. At the time, Jacob was in third grade. Dr. Fraser documented that Jacob was “receiving ESE services under the exceptionalities of Orthopedically Impaired, Occupational Therapy, Physical Therapy, Visually Impaired, and Other Health Impaired. Jacob is diagnosed with Cerebral Palsy, Seizure Disorder, Optic Atrophy in both eyes, Myopia, Nystagmus, disorder of eye movement, and Astigmatism.” She also documented that he “uses either a wheelchair or walker and requires adult assistance to navigate around campus. He also receives ESE services from the vision teacher.” Dr. Fraser’s summary and recommendation are set out in full, as follows: Jacob is an 8 year, 11-month old boy in the third grade that was referred for reevaluation by the ESE Reevaluation Committee to provide an updated measure of updated measures of his intellectual ability, academic achievement, and adaptive behavior. Due to Jacob's significant physical limitations and vision deficits only the Verbal Comprehension subtests of the WISC-V were administered. His score of 76 fell within the low range. Jacob received the following scores on the WJ-IV: Reading (<40), Math (51), and Written Language (<40). The achievement test was administered with accommodations and modifications for his physical and visual deficits including enlarging items and assistance from the vision teacher. Results from the ABAS-III (Teacher GAC = 72, Parent GAC = 70) fell below average. A strength was noted on the Social Domain while the Conceptual and Practical Domains were areas of weakness. An IEP meeting was conducted for Jacob on March 9, 2017, when Jacob was in the third grade. The IEP team was comprised of Petitioner’s mother and the following school based members: an ESE teacher; a vision teacher; a primary teacher; a school psychologist; a speech therapist; a social worker; a behavior specialist; the local educational authority representative; and an evaluation interpreter. At that time, the IEP team, in discharging its duty, was required to determine Jacob’s participation in the statewide standardized assessment program. In making that determination, the IEP team, including Petitioner’s mother, proceeded through the following analysis, as documented on the IEP: In determining the appropriate assessment for a student, the IEP team should consider the student’s present level of educational performance in reference to the Florida Standards and the Next Generation Sunshine State Standards. The IEP team should also be knowledgeable of guidelines and the use of appropriate testing accommodations. To facilitate informed and equitable decision making, the IEP team should answer each of the following questions when determining the appropriate course of instruction and assessment. Does the student have a significant cognitive disability? Even with appropriate and allowable instructional accommodations, assistive technology, or accessible instructional materials, does the student require modifications, as defined in Rule 6A-6.03411(1)(z), F.A.C., to the grade-level general state content standards pursuant to Rule 6A- 1.09041, F.A.C.? Does the student require direct instruction in academic areas of English Language Arts (ELA), mathematics, social studies, and science based on Access Points in order to acquire, generalize, and transfer skills across settings? If the IEP team answers “no” to any of these three questions, the student should be instructed in general education courses and participate in the general statewide standardized assessment with accommodations, as appropriate. If the IEP teams answers “yes” to all three questions, the student should be enrolled in access courses and participate in the Florida Standards Alternate Assessment-Performance Task. The IEP team conducted the above-cited analysis, concluded that Jacob has a significant cognitive disability, and answered the remaining questions in the affirmative. Ultimately, the IEP team concluded that Jacob will participate in the Florida Standards Alternate Assessment-Performance Task. Jacob’s most recent IEP in evidence, dated April 23, 2019, documents that Jacob continues to participate in access courses and participates in the Florida Standards Alternate Assessment-Performance Task. The undersigned, based upon review of the record evidence, is unaware of any evidence that Petitioners declined to provide parental consent for Jacob’s participation in either the access points curriculum or the Florida Standards Alternate Assessment-Performance Task. Notice On August 7, 2007, Mrs. Frybarger, signed a document entitled “Notice to Obstetric Patient (See Section 766.316, Florida Statutes).” This document provides as follows: I have been furnished information by Fetal Diagnostic Center of Orlando, Inc. prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), and have been advised that Ahmed Al-Malt, M.D. and Franklyn Christensen, M.D. 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, P.O. Box 14567, Tallahassee, Florida, 32317-4567, (800)398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. On December 16, 2007, Petitioner, Shannon Frybarger, signed a document entitled “Notice to Obstetric Patient Pursuant to Florida Statute 766.315.” Said document provided as follows: I have been furnished with information by Florida Hospital that was prepared by the Florida Birth Related Neurological Injury Compensation Association (NICA). Under the Association’s NICA program, certain limited compensation is available in the event that certain neurological injury may occur to my infant during labor, delivery or resuscitation. I have also been informed that Florida Hospital, its related or affiliated organizations, and their employed physicians are participants in the NICA program. I acknowledge and understand that my personal physician, or an on-call physician who I have been assigned to, may or may not participate in the NICA program. I understand that I may seek clarification from my physician as to his/her participation in the NICA program. I understand it is my responsibility to discuss this with my physician. For specifics on the program, I understand that I can contact the Florida Birth Related Neurological Compensation Association (NICA), 1435 East Piedmont Drive, Suite 101, Tallahassee, Florida 32312, (904) 488-8191, which is also listed in the NICA brochure. I further acknowledge that I have received a copy of the NICA brochure called “Peace of Mind for an Unexpected Problem” from Florida Hospital prepared by NICA. The undersigned finds that Intervenor, Adventist Health, provided notice to Mrs. Frybarger, of its participation in the Plan. The undersigned finds that Dr. Christensen provided notice to Mrs. Frybarger of his participation in the Plan. Petitioner presented no contrary evidence at the final hearing, and does not address the notice issue in Petitioner’s Proposed Final Order.
Findings Of Fact Based on the stipulation of the parties, the following facts are found: Matthew Williams and Joy Williams (Petitioners) are the parents and natural guardians of Jesse Williams (Jesse), and are the “claimants” as defined by section 766.302(3). Jesse incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about December 26, 2018, which was the sole and proximate cause of Jesse’s injury. At birth, Jesse weighed 3,640 grams. Adrienne George, M.D., rendered obstetrical services in Jesse’s delivery, and, at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7). TMH is a hospital located in Tallahassee, Florida, and is the hospital where Jesse was born. TMH is the “hospital” as that term is defined in section 766.302(6). Jesse died on March 28, 2019. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth- Related Neurological Injury Compensation Plan (Plan).
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 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.
