The Issue At issue is whether Christopher Kocher, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Findings related to the parental award and past expenses At hearing, the parties stipulated that there were no monies owing for past expenses, as they had been paid by collateral sources (private insurance). Section 766.31(1)(a). The parties further agreed that Petitioners, as the parents of Christopher Kocher, a deceased minor, be accorded a lump sum award of $100,000.00, as well as an award of $1,500.00 for funeral expenses. Section 766.31(1)(b). Findings related to attorney's fees and costs incurred in connection with the filing of the claim To support their claim for attorney's fees, Petitioners offered what was titled "Ferraro & Associates, P.A.'s Time Sheet." (Petitioners' Composite Exhibit 1, "Ferraro & Associates, P.A.'s Time Sheet"). As explained by Plaintiffs' counsel, at hearing MR. JOHNSTON: And these were -- these are the hours that were reconstructed. Our firm doesn't normally keep time records. We're a plaintiffs firm. But Mr. Falzone did go through and estimated the time that was spent on the NICA related matters and put them in this time sheet . . . . The time sheet reflected 17 hours dedicated to the case by Mr. Falzone, for which Petitioners requested an hourly rate of $500 (a total of $8,500.00), and 109.25 hours dedicated to the case by "different associates," for which Petitioners requested an hourly rate of $250.00 (a total of $27,312.50), for a total award of $35,812.50. Notably, such time sheet is hearsay, and was received into evidence subject to the limitations of Section 120.57(1)(c). ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Consequently, since no witnesses were called or competent evidence offered detailing the services rendered or the prevailing hourly rate charged in the community by lawyers of reasonably comparable skill, experience and reputation, for similar services, there is no competent proof to support an award of attorney's fees. Mercy Hospital, Inc. v. Johnson, 431 So. 2d 687, 688 (Fla. 3d DCA 1983)("[Attorney's] failure to present detailed evidence of his services is fatal to his claim."); Yakubik v. Board of County Commissioner's of Lee County, 656 So. 2d 591 (Fla. 2d DCA 1995)("The testimony of an expert witness concerning reasonable attorney's fees is necessary to support the establishment of the fees.") Nevertheless, at hearing, Respondent agreed that it would accept 37.25 hours (the hours ostensibly expended from November 7, 2000, through April 28, 2001), as reasonably expended in pursuing the claim, and $175.00 as a reasonable hourly rate, for a total fee award of $6,518.75. Here, given that the claim was routine, and lacked any novel aspect that would warrant the time claimed by Petitioners' counsel, Respondent's concession is reasonable. Consequently, given that Petitioners' counsel obviously expended some time pursuing the claim, and there is no competent proof to otherwise support an award of attorney's fees, an award of $6,518.75 is appropriate. Finally, Petitioners seek to recover certain expenses they claim were reasonably incurred in connection with pursuing the claim for compensation. Such costs total $4,139.30. (Petitioners' Composite Exhibit 1, "Case Expense Report," page 3). Respondent does not object to the costs reflected on counsel's "Case Expense Report," page 3, commencing with the entry of November 7, 2000 ($15.00), and extending through the entry of March 20, 2001 ($15.50), totaling $1,036.02. Accordingly, those costs are awarded, without further discussion. As for the balance of expenses claimed, and opposed by Respondent, the record is devoid of proof to support their recovery. Notably, as with their claim for attorney's fees, Petitioners offered neither testimony nor competent evidence detailing the nature of the expenses claimed. Consequently, it would be pure speculation to conclude such expenditures constitute costs that are traditionally taxable, that they were reasonable in amount, or that they were necessarily incurred in pursuing the claim for compensation. Consequently, such expenses are not recoverable.
The Issue Whether Jacqueline Simone Jackson (Jacqueline), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' settlement of a civil suit against the hospital where Jacqueline was born for negligence associated with her birth bars them from recovery of an award under the Plan. Whether the participating physicians complied with the notice provisions of the Plan.
Findings Of Fact Findings related to compensability Tracie Turner Jackson and Ulysses Bernard Jackson are the natural parents and guardians of Jacqueline Simone Jackson, a minor. Jacqueline was born a live infant on December 8, 1999, at Orlando Regional Healthcare System, d/b/a Arnold Palmer Hospital for Women and Children (Arnold Palmer Hospital), a licensed hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Jacqueline's birth were Alejandro J. Pena, M.D., and Marc W. Bischof, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Jacqueline suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. The settlement with Arnold Palmer Hospital In 2002, Tracie Turner Jackson and Ulysses Bernard Jackson, individually and as parents and natural guardians of their minor daughter, Jacqueline Simone Jackson, Plaintiffs, filed a medical malpractice claim arising out of the birth of Jacqueline against Orlando Regional Health Care System, Inc., d/b/a Arnold Palmer Hospital for Women and Children; Alejandro J. Pena, M.D.; Marc W. Bischof, M.D.; Physician Associates of Florida, Inc.; T. Zinkil, R.N.; S. Furgus, R.N.; Nancy Ruiz, R.N.; L. Baker, R.N.; T. Flyn, R.N.; and Nancy Ostrum, R.N., Defendants, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, Case No. 2002-CA-6770 Div. 34. A settlement was reached with Arnold Palmer Hospital, but the case against Dr. Pena, Dr. Bischof, and Physician Associates of Florida, Inc., remained pending.3 Given Petitioners' settlement with Arnold Palmer Hospital, and the provisions of Section 766.304, Florida Statutes (1999)4("An action may not be brought under ss. 766.301- 766.316 if the claimant recovers or final judgment is entered."), Petitioners and Respondent stipulated that "Petitioners are not entitled to any actual payment or award from NICA, even if a finding is made that the claim is compensable and adequate notice was given." (Petitioners' letter of November 18, 2004, filed November 19, 2004, and Respondent's letter of November 16, 2004, filed November 16, 2004.) The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the physicians' claim of Plan immunity by averring that the participating physicians who delivered obstetrical services at Jacqueline's birth (Doctors Pena and Bischof) failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether either participating physician gave the required notice. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions 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. Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (See, e.g., Petitioners' Exhibit 2, the NICA brochure, "This brochure is prepared in accordance with the mandate of [Section] 766.316, Florida Statutes.") Findings related to the participating physicians and notice Mrs. Jackson received her prenatal care at the Longwood Center, one of 7 offices in the Orlando area operated by Physician Associates of Florida (PAF), a group practice comprised of 35 physicians, including 16 obstetrician- gynecologists. (See, e.g., Intervenors' Exhibits 1, 2, 4, and 6.) At the time, four obstetricians staffed the OB-GYN department at the Longwood Office, Dr. Marc Bischof, who provided obstetrical services during Jacqueline's birth; Dr. Robert Bowels; Dr. Peter Perry; and Dr. Jose Lopez-Cintron. However, as a group practice, all obstetricians rotated delivery calls at the hospital, so it was possible, as occurred in this case with Dr. Pena, that a doctor from a different office would participate in the delivery. Notably, all obstetricians associated with PAF were participating physicians in the Plan. On April 12, 1999, Mrs. Jackson presented to the Longwood Center for her initial visit. At the time, consistent with established routine, the receptionist provided Mrs. Jackson with a packet of information that included a number of forms for her to complete and sign, including: a Patient Information form; a Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form; a Triple Test Form (a screening test for Down's Syndrome); a Prenatal Diagnosis Screening Questionnaire; and a Notice to Obstetrical Patient (to acknowledge receipt of the NICA brochure that was, indisputably, included in the packet). The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by Physician Associates of Florida prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that [5] 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), 1435 Piedmont Drive East, Suite 101, Tallahassee, Florida 32312 1-800-398-2129. 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 No.: Attest: (Nurse or Physician) Date: Mrs. Jackson completed each of the forms, including the Notice to Obstetric Patient, by providing the requested information, and then signing and dating the forms. (Petitioners' Exhibit 1). Here, there is no dispute that Mrs. Jackson signed the Notice to Obstetric Patient or that she received a copy of the NICA brochure on her initial visit. There is likewise no dispute that, given the blank space, the notice form was inadequate to provide notice that Dr. Bischof, Dr. Pena, or any obstetrician associated with PAF was a participating physician in the Plan. Rather, what is disputed is whether, as contended by Intervenors, Mrs. Jackson was told during her initial visit that all obstetricians in PAF were participants in the Plan.6 Regarding Mrs. Jackson's initial visit, the proof demonstrates that, following completion of the paperwork, Mrs. Jackson was seen by Nurse Posey for her initial interview. Typically, such visits lasted approximately 45 minutes, with 30 minutes spent reviewing the patient's history, as well as the paperwork she received in the packet, and 15 minutes spent on a physical examination. According to Nurse Posey, she conducted a minimum of two initial prenatal interviews daily, five days a week, and followed the same procedure during each interview. As described by Nurse Posey, during the initial interview she always discussed each form (the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form, and the Notice to Obstetric Patient) individually, and when the form had been discussed she would co-sign the form. (Transcript, pp. 65- 68) Moreover, as for the NICA program, Nurse Posey always confirmed that the patient had received the NICA brochure, and told the patient that PAF's obstetrical service was "a group practice; that anyone in the group could do the delivery; and that each member of the group was a participant in the NICA program." (Transcript, pp. 68-70) Finally, Nurse Posey documented her routine through an entry on the prenatal flow sheet (Intervenors' Exhibit 6), which noted she had provided the patient information on the various tests, as well as the NICA brochure and notification. Here, that entry read: "Pt given info on diet, exercise, HIV screening, triple test, NICA pamphlet & notification & cord blood storage." (Petitioners' Exhibit 1, Intervenors' Exhibit 6, and Transcript, pp. 70-78.) In this case, Nurse Posey was confident she had followed her routine, since she would not have co-signed the various documents, such as the Notice to Obstetric Patient, or made the entry on the prenatal flow sheet unless she had done so. In response to the evidence offered by Intervenors on the notice issue, Mrs. Jackson testified there was never a discussion of the NICA program, and she was never told the physicians associated with PAF's obstetrical program were participating physicians in the Plan. However, Mrs. Jackson acknowledged that Nurse Posey questioned her regarding her medical history, and that she explained the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, and the HIV form. (Transcript, pp. 141-145) As for the Notice to Obstetric Patient, Mrs. Jackson initially denied having read it; then testified she may have read it "briefly," but "didn't go into details" or "seek out specifics"; and finally stated she could not remember reading the form, but could not deny that she may have read it. (Transcript, pp. 150, 151, 156-159) Here, giving due consideration to the proof, it must be resolved that the more persuasive proof supports the conclusion that, more likely than not, Nurse Posey, consistent with her routine, discussed the NICA program with Mrs. Jackson on her initial visit, and informed Mrs. Jackson that the physicians associated with PAF's obstetrical program were participating physicians in the Plan. In so concluding, it is noted that, but for the NICA program, Mrs. Jackson acknowledged Nurse Posey otherwise followed her routine; that it is unlikely, given such consistency, Nurse Posey would not have also discussed the NICA program; that Nurse Posey, as was her routine, co-signed each of the forms she discussed with Mrs. Jackson, including the Notice to Obstetric Patient; that Nurse Posey, as was her routine, documented her activity on the prenatal flow sheet; and that Mrs. Jackson evidenced little recall of the documents she signed or the discussions she had with Nurse Posey. Finally, Nurse Posey's testimony was logical, consistent, and credible, whereas Mrs. Jackson's testimony was often equivocal. Jurisdiction
The Issue At issue in this proceeding is whether Giuliano Gugelmin, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Mauricio Gugelmin and Stella Gugelmin are the parents and natural guardians of Giuliano Gugelmin (Giuliano), a minor. Giuliano was born a live infant on July 14, 1994, at South Broward Hospital District, d/b/a Memorial Hospital West (the Hospital), a hospital located in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Giuliano was Eric N. Freling, M.D., who was at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who have suffered a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, the parties have stipulated that Giuliano suffered a "birth- related neurological injury," as that term is defined by the Plan, and NICA proposes to accept the claim as compensable. The parties' stipulation is grossly consistent with the proof and, consequently, it is resolved that NICA's proposal to accept the claim as compensable is approved. While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in the collateral civil action by claiming that the health care providers failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged, proper notice was given. Regarding the notice issue, it must be resolved that the proof failed to demonstrate, more likely than not, that Dr. Freling provided Mrs. Gugelmin any notice of his participation in the Plan or any explanation of a patient's rights and limitations under the Plan. Indeed, the more compelling proof was to the contrary. Moreover, there was no proof to support a conclusion that Dr. Freling's failure to accord notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. While Dr. Freling failed to give notice, the Hospital did, as required by law, provide timely notice to Mrs. Gugelmin as to the limited no-fault alternative for birth-related neurological injuries. That notice included, as required, an explanation of a patient's rights and limitations under the Plan, and was given at 11:45 a.m., July 13, 1994, shortly after Mrs. Gugelmin's admission to the hospital (which occurred at approximately 11:22 a.m., July 13, 1994). Giuliano was delivered at 12:25 a.m., July 14, 1994.
The Issue Whether Yandel Torres-Santiago, a minor, sustained a compensable injury under the Florida Birth-Related Neurological Injury Compensation Plan (Plan); and Whether appropriate pre-delivery notice was provided to the mother and obstetrical patient, Yolanda Santiago.
Findings Of Fact Stipulated and Threshold Matters Petitioners, Yolanda Santiago, and Wilfredo Torres, are the parents and natural guardians of Yandel Torres-Santiago, a minor.5/ Winnie Palmer Hospital for Women & Babies is a Florida- licensed hospital, participating in the NICA Plan, and all individual Intervenors (Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny A. Danna, M.D.; and Amanpreet S. Bhuller, M.D.) were at all times material participating physicians under the NICA plan. (TR-46-47). Yandel was born at Winnie Palmer Hospital for Women & Babies on July 19, 2008. (Stipulated among the parties in their respective pre-hearing statements). Yandel was delivered vaginally. (Stipulated among the parties in their respective pre-hearing statements). Obstetrical services were delivered by Jeannie McWhorter, M.D.; Martha Kuffski, M.D.; Norman Lamberty, M.D.; Penny Danna, M.D.; Amanpreet S. Bhuller, M.D.; and George Amyradakis, M.D., in the course of Ms. Santiago's labor and delivery.6/ All of the foregoing physicians were participants in the NICA Plan at all times material. The physician providing obstetrical services at birth was George Amyradakis, M.D., a hospital "resident," with Norman Lamberty, M.D., as the attending physician.7/ Yandel was the result of a single gestation, and his birth weight was 2,735 grams. (Stipulated among the parties, and see TR-15). Yandel's Apgars8/ at birth were 3/7. (Stipulated among the parties). Yandel suffered from neonatal alloimmune thrombocytopenia at birth. (Stipulated among the parties). Yandel is permanently and substantially mentally and physically impaired. (Stipulated among the parties). Yandel's medical condition and treatment is documented in the birth records of Winnie Palmer Hospital for Women & Babies. (Stipulated among the parties). Wilfredo Torres and Yolanda Santiago have been together and/or married for 25 years. They had three healthy sons prior to Yandel's conception. Yolanda Santiago suffered two miscarriages prior to Yandel's conception. Findings of fact as to compensability In July 2008, while pregnant with Yandel, Yolanda Santiago was 41 years old with diabetes mellitus and ulcerative colitis. Hypertension developed at 37 weeks' gestation. She was admitted to Winnie Palmer Hospital for Women & Babies on July 17, 2008, with pre-eclampsia.9/ Her blood pressure on admission was elevated to 152/100, and she was complaining of a headache. Magnesium sulfate was started for management of preeclampsia and labor was induced. On Ms. Santiago's admission to the hospital on July 17, 2008, Drs. Jeannie McWhorter and Stephanie Ladowski were attending obstetricians. On July 18, 2008, Dr. Martha Kuffski was the attending obstetrician. Yandel's baseline fetal heart rate (FHR) during labor was 130 to 140 beats per minute (BPM). Overall, there was reduced FHR variability during labor. Severe variable FHR decelerations with FHR below 60 BPM occurred prior to Yandel's delivery. On July 19, 2008, Ms. Santiago's membranes were artificially ruptured, and at 3:41 p.m., Yandel was delivered vaginally without forceps. The attending physician at Yandel's birth, Dr. Lamberty, and Ms. Santiago recognized each other in the delivery room at Winnie Palmer Hospital for Women & Babies. Dr. Lamberty described Yandel's delivery by a hospital resident as "completely uneventful." At birth, Yandel had visible petichiae. There also were pale bluish, non-blanching spots on his right axilla and over the left chest; slightly decreased tone; and bruising of the face and head, but his scalp was not torn and no physical abnormalities were noted. Petichaie are pinpoint red spots marking tiny hemorrhages under the skin. Some testifying physicians thought they were, more likely than not, evidence that a brain hemorrhage also could have occurred during labor and delivery. Others did not consider that an obvious connection, and felt that thrombocytopenia alone can cause a petechial rash. Yandel required only manual stimulation and minimal oxygen in the first minutes of life. He was quickly stabilized and breathing room air. Yandel's Apgar scores of "3" at one minute and "7" at five minutes do not indicate distress. Respiratory effort was "weak" at birth, but respiratory effort improved and was noted to be good at five minutes of age. Yandel's "7" Apgar score at five minutes indicated that Yandel was pink, had a good heart rate, good respiratory effort, and was breathing on his own. Yandel never required intubation or placement on a ventilator in the delivery room. Nonetheless, he was transferred to the transitional nursery, instead of being transferred to the new-born nursery, which provided a lesser level of care than the transitional nursery, or to the new-born intensive care unit (NICU), which provided a higher level of care than the transitional nursery. Yandel was transported to the transitional nursery in an open crib and breathing room air. There is no evidence of continued or continuous resuscitative efforts or of any need for resuscitative efforts after Yandel was stabilized in the delivery room and no evidence of any need for resuscitative efforts during his transfer to the transitional nursery. Yandel arrived at the transitional nursery breathing on his own and in presumably good condition, except for some bluing of the extremities, but his condition declined several hours later. According to NICA's witness, Dr. Donald C. Willis, a board-certified obstetrician with special competence in maternal-fetal medicine, the "immediate postdelivery resuscitative period" would have ended for Yandel with the five- minute Apgar recordation. All of the other physicians who testified on the subject considered the end of resuscitation in the immediate postdelivery period to have occurred when Yandel was stabilized. As might be expected, there was some disagreement as to what constituted stabilization. The four physicians deposed in this case for their expertise in determining condition and causation were the obstetrician, Dr. Willis; Dr. Michael Duchowny, a pediatric neurologist; Dr. Claudio Sandoval, a pediatrician and pediatric hematologist-oncologist; and Dr. Robert DiGeronimo, a neonatologist. Their respective testimonies as to what each believed happened after Yandel left the delivery room and regarding the etiology of Yandel's impairments differ in many respects, but all four physicians clearly and unequivocally agree that Yandel was born with a condition termed "alloimmune thrombocytopenia"; that alloimmune thrombocytopenia is an abnormal condition; and that Yandel's alloimmune thrombocytopenia existed in utero and at his birth. Yandel's fetal alloimmune thrombocytopenia existed in the uterus and constituted neonatal alloimmune thrombocytopenia in the newborn. All the testifying physicians agreed that alloimmune thrombocytopenia is not "genetic," in that it does not pass as a defect of the genes from parent(s) to child. All were willing to call the condition "congenital" or "hereditary," but several preferred the term, "acquired condition" as well. Nonetheless, it is clear that the condition is "acquired" by the infant before birth, and the only difference between fetal alloimmune thrombocytopenia and neonatal alloimmune thrombocytopenia is that the child has been born. It is, however, a condition that is treatable after birth. The Legislature has not defined the word, "congenital" within sections 766.301-766.316, nor indeed, anywhere within the current statutes. Dorland's Illustrated Medical Dictionary, page 1988 (28th ed. 1994), defines "congenital" as, "existing at, and usually before, birth; referring to conditions that are present at birth, regardless of their causation. Cf. hereditary." Apparently, there are other forms of thrombocytopenia which may develop in different ways. However, alloimmune thrombocytopenia is a condition acquired in the mother's uterus, due to incompatibility between the mother's blood platelet type and that of the baby. It occurs when the baby inherits the same platelet type as the father, whose platelet type is incompatible with that of the mother. The mother's blood crosses the placenta and attacks the baby's platelets as if the baby's platelets were foreign bodies. The mother's antibodies then proceed to destroy the platelets of the baby, resulting in thrombocytopenia (low platelet count). Alloimmune thrombocytopenia occurs in less than one in 1,000 births. For the first hour and 20 minutes after birth on July 19, 2008, Yandel was in the transitional nursery. He was somewhat bluish during this time, but breathing on his own. At approximately 5:00 p.m., an assessment (history and physical) was performed by a pediatrician who concluded that Yandel was stable. At that time, Yandel's eyes, lungs, heart, and abdomen were recorded as normal. His trunk, spine, and extremities were recorded as normal. His head and neck were normal. His anterior fontenels10/ were recorded as "soft and flat," and thus, normal. The fontenels permit a baby's head to pass through the birth canal with minimal "molding" of his head and permit the baby's brain to grow as his head and body grow and mature after birth. From the 5:00 p.m., assessment, it appears that no bulge was visible at that time as might have been expected with bleeding or swelling in Yandel's head. Yandel had normal grasp, normal sucking instinct and normal suck, and he could move all his extremities. His vital signs were recorded as "normal." He was fed 20 ml of formula and transferred to the newborn nursery. Between 4:05 and 7:30 p.m., of July 19, 2008, Yandel's heart rate decreased from 150 to 118. At four hours of life, (approximately 7:00 p.m., on July 19, 2008) Yandel had a brief episode of apnea (interruption in the ability to breathe). He desaturated (in this context, "lost oxygen" in his blood) to 69%. Thirty minutes thereafter, he had a 20-second desaturation episode to 44%, and was placed on supplemental oxygen. He experienced two more desaturation episodes lasting 40 and 45 seconds. At 10:00 p.m., on July 19, 2008, Yandel's blood platelet level was 41,000. The normal range is 150,000 to 350,000. His hemoglobin and hematocrit levels were also low at 13.3 and 39.8, respectively. At approximately 1:42 a.m., on July 20, 2008, Yandel was transferred to NICU, on a ventilator, but his fontenels were still open, soft and flat. He was awake and alert and with his reflexes intact, and stable, but he was recorded as having intermittent tremors. No bleeding was reported. At 3:10 a.m., on July 20, 2008, at approximately 12 hours of life, Yandel's platelet level was 19,000, with hemoglobin of 11.7 and hematocrit of 35.9. The foregoing measurements constitute a 50% drop in platelet count over a period of five hours and are consistent with loss of oxygen through a brain bleed. At 8:11 a.m., on July 20, 2008, a head ultrasound confirmed that Yandel had experienced a large intraventricular and intraparietal brain bleed with a midline shift. At 10:14 a.m., on July 20, 2008, an ultrasound encephalogram report stated that the examination was abnormal with large amounts of blood in the lateral third ventricle of Yandel's brain. At 5:27 p.m., on July 20, 2008, Dr. Olavarra noted Yandel's fontenels were full and tight, which meant something (in this case, blood) was filling up the brain and its ventricles. At 3:50 a.m., on July 21, 2008, Yandel received a transfusion of blood products which increased his platelet count to 235,000, but he had lost blood volume. At 8:54 a.m., on July 21, 2008, the extent of the brain bleed was confirmed by a CT scan of Yandel's head, which revealed blood in the lateral and third ventricles and the parietal lobes. On July 21, 2008, a pediatric hematologist diagnosed the brain bleed as resulting from alloimmune thrombocytopenia. The parties and their respective experts have different views both of when Yandel's brain bleed began and of at what point the bleed caused injury to his brain. Respondent NICA's and Intervenors' experts assert that the brain bleed began while Yandel was passing through the birth canal and occurred due to the "mechanical forces" or "shearing effect" of the contractions of a normal vaginal delivery, whereby the infant's soft head, followed by his body, passed through the mother's pelvis and vagina, resulting in a long- term, continuous bleed. Petitioners advocate for a finding that there was a spontaneous bleed at some point beyond the period of "labor, delivery, or resuscitation in the immediate postdelivery period in a hospital." (The statutory period). They contend that the bleed began no sooner than four hours after birth; after Yandel had been stabilized; and after the immediate postdelivery resuscitative period had ended. They further suggest that the injury to Yandel's brain may have occurred even beyond the lapse of four hours. Obstetrician Dr. Donald C. Willis reviewed Yandel's and Ms. Santiago's medical records for Respondent NICA. He testified that, despite Yandel's improving Apgar scores within five minutes of birth at 3:41 p.m., on July 19, 2008; favorable newborn pediatric assessment at approximately 4:00 p.m.; and stabilized condition for nearly four hours on July 19, 2008, nonetheless, within reasonable medical certainty, significant brain hemorrhage had occurred to Yandel during labor and delivery because, with thrombocytopenia, the most common time for hemorrhage is at the time of delivery, when the baby's head has to mold into the birth canal. Dr. Willis also suggested that even the brief loss of oxygen during any normal uterine contraction could constitute sufficient loss of oxygen to produce the brain bleed discovered much later. Dr. Willis' testimony suggests that any baby suffering from fetal alloimmune thrombocytopenia will suffer a mechanical brain hemorrhage and subsequent oxygen deprivation through the normal birthing process, in which case, Yandel's situation would seem to represent a congenital condition not subject to compensation under the statute, but he also stated that labor and birth are simply the most common time for such babies to hemorrhage in the brain. There is no dispute that alloimmune thrombocytopenia, acquired by an infant in utero, makes that infant more susceptible to a brain bleed during birth than an infant without such acquired condition. However, all four physicians, including Dr. Willis, concede that not every baby with alloimmune thrombocytopenia suffers a brain bleed due to an uneventful vaginal delivery, or even suffers apneic episodes, as did Yandel. Dr. Claudio Sandoval is an eminent pediatric hematologist-oncologist. Although he deferred to either a neonatologist (such as Dr. DiGeronimo) or a pediatric neurologist (such as Dr. Duchowny) to determine whether or not Yandel had a bleed in his brain at the time of birth significant enough to have caused brain damage more than 12 hours later, Dr. Sandovol provided insight that there is a difference between some loss of oxygen versus mechanical injury to the brain via a brain bleed. Dr. Sandoval's opinion, in sum, was that the statutory period for compensability ended once the baby was stabilized in the delivery room. He placed the beginning of Yandel's brain bleed at some point between the complete blood count (CBC) reading of 41,000 platelets at approximately 10:00 p.m., on July 19, 2008, and the CBC reading of 19,000 platelets the next morning at about 3:00 a.m., on July 20, 2008. Dr. Sandoval's reasoning was that the injury had to have occurred at that point in time, because only at that point in time had the bleed reached "critical mass" sufficient to cause oxygen deprivation to the brain. He opined that although thrombocytopenic babies may be susceptible of bleeding, very few thrombocytopenic babies have a bleed into their brains as a result of the birthing process. He relied on the NICU admission assessment at 1:42 a.m., on July 20, 2008, that the child was stable with no evidence of active bleeding, and best-timed Yandel's injury caused by oxygen deprivation to when Yandel's fontenels began to bulge from the released blood. Dr. Michael Duchowny is a pediatric neurologist, selected by Respondent NICA. Like Dr. Sandoval, selected by Petitioners, Dr. Duchowny also concluded that the claim was not compensable because the injury occurred outside the statutory period. He assessed the birth record and observed an older Yandel via video. Dr. Duchowny could not make up his mind as to whether or not alloimmune thrombocytopenia was, or was not, congenital (see his deposition, pages 53, 54, and 71), but he stated that some type of insult of record, other than the birth itself, was necessary for him to reach a conclusion that the damage to Yandel's brain occurred during the birth. Dr. Duchowny found no such insult in the birth records, and concluded that Yandel suffered a spontaneous bleed occurring when Yandel's platelet count fell below 20,000. Although at one point, in a very long deposition, he was mistaken as to the point in time at which the platelet count fell below 20,000 (he believed the platelet count was continually dropping through the 3:10 a.m., platelet count at 12 hours of life until the baby was transfused at 7:45 p.m., on July 20, 2008) Dr. Duchowny ultimately timed Yandel's brain damage as beginning when the desaturations began to occur and the first apneic episodes were recorded. On the other hand, neonatologist Dr. DiGeronimo acknowledged that the mechanical forces of labor and birth can cause immediate brain damage in a baby with alloimmmune thrombocytopenia and opined that a brain capillary may have been torn by the shearing forces of labor and delivery (mechanical injury) and bled out. He also opined that apnea is not restricted to thrombocytopenic babies or to babies with brain bleeds. Apnea can occur for a wide range of reasons and with a wide range of manifestations and etiologies. Dr. DiGeronimo also considered it common for newborns who have sustained a brain injury at birth to not evidence any symptomatology of that bleed until hours later: Q: Why did it take four hours after birth for him to start having an apnea event as a result of his brain injury? A: [Dr. DiGeronimo] So apnea is just one sign of a brain injury, and there are babies that often have significant brain injury that don't have any apnea or don't present with apnea. Apnea can also occur for different reasons outside of brain injury. Babies -- some babies just have apnea. But it's -- it's very well known if you look at brain injury, babies go through kind of an acute injury and then they have a kind of a latent period where they recover and often aren't symptomatic, or improve transiently, and then subsequently as brain injury continues and the cells of the brain suffer ongoing injury and don't recover, their brain essentially goes into a secondary phase of injury, and this is typically when you see seizures and you may see apnea. And that can be a variable period, but it's very common in clinical practice where you'll have a baby that will have an insult and then will look better for a period of time, and then subsequently will get symptomatic with systems. [sic] Q: Is that the course that Yandel Torres-Santiago took after his birth? A: Yeah. I believe there was a component of that. I -- you know, I still think he was symptomatic at birth, he required resuscitation, but he did have a period where he appeared stable enough where they sent him to the transition nursery, but -- but then obviously later on and not too long a period developed apnea, and then later on clinical seizures as well, which is consistent with kind of the timing of a brain injury occurring during the labor and delivery process. The division of opinion of the several experts is troubling, particularly since the pediatric oncologist- hemotologist, Dr. Sandoval, deferred to either a neonatologist or a pediatric neurologist and those two specialists disagree on causation and timing of the insult to the brain. It is tempting to find that Dr. Duchowny's mistake as to when Yandel's platelet count first fell below 20,000 is cause to discount the remainder of his testimony, but it is more reasonable to say that his testimony, as a whole, could support a spontaneous brain hemorrhage at 12 hours of life as much as it could support a slow bleed beginning earlier, at around four hours of life, and does not support a finding that a mechanical injury occurred in the statutory period. The undersigned has thoroughly reviewed voluminous medical records and carefully assessed, compared, and weighed all the threshold assumptions of the various medical experts, with particular attention to those of Dr. Willis and Dr. DiGeronimo, whose medical disciplines (obstetrics and neonatology, respectively) cover the time period of labor, delivery and newborn care when the intracranial bleed and resulting damage are alleged to have occurred. According to Drs. Willis and DiGeronimo, alloimmune thrombocytopenia, without any activity by the obstetricians, accounted for an initial insult to Yandel's brain during labor or delivery. However, it is noteworthy that neither of these specialists was able to point to a specific objective incident during labor, delivery, or resuscitation in the delivery room when they alleged the "mechanical shearing" injury to Yandel's brain occurred. Also, neither expert had correlated any statistical probability that there had been a tear to the brain as described by Dr. DiGeronimo. In sum, their assessment was that not all alloimmune thrombocytopenic babies suffer an insult to their brains during labor and delivery, but most who do suffer such an insult suffer it in that time frame. While their testimony suggests that there may be an unquantified statistically higher occurrence of injury in such babies across the spectrum of such births, it is not objective evidence of an actual insult/injury to Yandel's brain within the statutory period. If anything, it tends to demonstrate the existence of a congenital abnormality without which the ultimate injury and impairment would not have occurred.11/ In contrast, the objective records show Yandel was an infant compromised by thrombocytopenia, a noncompensable congenital abnormality. He had an uneventful labor and delivery without external mechanical intervention by the obstetricians, such as forceps or vacuum extraction. There was no identifiable obstetrical incident, event, or apparent complication during labor, delivery, or the immediate postdelivery manual stimulation, which constituted his immediate postdelivery "resuscitation", which can be pointed-to as an insult to his brain or spinal cord. There was no observable injury to his head or scalp upon delivery. His petechial rash did not necessarily evidence injury to his brain. There was no bleeding from the mouth or nose which various opinions suggest might signal a brain bleed. Yandel achieved the wholly acceptable five minute Apgar score of "7," and he evidenced no symptoms of oxygen deprivation or other injury until after leaving the delivery room and the parameters of obstetrical care. Here, the statutory presumption in favor of compensability does not exist because Petitioners have not elected to claim it, and each of the parties has cited Bennett v. St. Vincent's Medical Center, supra, as instructive on how to resolve this case. However, the opinion in Bennett, while establishing that only Petitioners may claim the statutory presumption in favor of compensability and providing important dicta about the purpose and limitations of the NICA statute,12/ only addressed a situation in which the infant suffered a material and substantial mental and physical impairment as the result of oxygen deprivation in the statutory period, which is not the case here.13/ Bennett dealt with the more typical case in which NICA and the health care providers took the position that the infant suffered an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital," and petitioners/claimants therein took the position that it was not a case of "injury to the brain . . . caused by oxygen deprivation occurring in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital." However, in the instant case, NICA and Intervenors assert that Yandel sustained an "injury to the brain . . . caused by . . . mechanical injury, occurring in the course of labor [or] delivery, . . ." Herein, it has been shown that Yandel's brain injury, whenever it occurred, may have at least partially been the result of his congenital alloimmune thrombocytopenia, but it is unlikely that he suffered any substantial neurologic impairment until after he experienced a series of profound oxygen deprivations beginning no sooner than four hours after the statutory period had ended. Upon the evidence as a whole, Respondent and Intervenors have not demonstrated that, more likely than not, Yandel sustained a mechanical injury to his brain . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period. Findings of fact as to notice Apart from contesting compensability, Petitioners also sought the opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the statutory NICA notice provisions were not satisfied by the health care providers. See Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings, et al., 29 So. 3d 992 (Fla. 2010). ". . . [I]f either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA." Galen of Fla., Inc. v. Braniff, 696 So. 2d 308, 309, (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the hospital and the participating physicians complied with the notice provisions of the Plan. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 948 So. 2d 705 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). Accord O'Leary v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum."); University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 880 So. 2d 1253 (Fla. 1st DCA 2004). The statutory notice requirement is expressed at section 766.316, 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(8)(b) or when notice is not practicable. (emphasis added). Intervenors have not raised the defenses of "emergency" or "not practicable," and as the proponents of the notice issue they bear the burden of proving that notice was given. It is Petitioners' position, based upon Florida Birth- Related Neurological Injury Compensation Association v. Department of Administrative Hearings, that neither the hospital nor any of the physicians involved in labor, delivery, or resuscitation in the immediate postdelivery period in the hospital gave appropriate pre-delivery notice of participation in the NICA Plan. Intervenors contend otherwise. Winnie Palmer Outpatient Center OB/GYN Faculty Practice (hereafter Faculty Practice) is located at 89 West Copeland Drive, Orlando, Florida. It is one of a number of offices and hospitals in the Orlando, Florida, area operated by Orlando Health Inc. Winnie Palmer Hospital for Women & Babies is a teaching hospital located in the same downtown area and is part of the same medical network operated by Orlando Health, Inc. In 2007, Ms. Santiago began receiving prenatal care at the Faculty Practice for her sixth pregnancy (Yandel), because the Faculty Practice provided "high risk pregnancy" services and she had a problem with her cervix which had resulted in two prior miscarriages. Ms. Santiago continued to have regular periodic appointments at the Faculty Practice for the remainder of her pregnancy with Yandel. At all times material to Ms. Santiago's pregnancy with Yandel and Yandel's birth on July 19, 2008, the Faculty Practice employed 22-27 physicians. Ms. Santiago had no regularly- assigned physician at the Faculty Practice. At each visit there, she was seen by whichever Winnie Palmer Hospital for Women & Babies' resident and/or attending physician was available. As a group practice, all Faculty Practice physicians (attending obstetricians and residents) rotated delivery calls at the hospital, so it was possible any of the Faculty Group obstetricians or residents would participate in Yandel's delivery, and the parent company paid NICA participation fees for all of them. At all times material, Jeannie McWhorter, M.D., Martha Kuffski, M.D., and Armanpreet Bhuller, M.D., were employees of Orlando Health, Inc. who provided care and treatment to obstetrical patients at the Faculty Practice.14/ At all times material, Dr. Norman Lamberty and Dr. Penny A. Danna were employed by Physicians Associates, P.A., a private medical practice corporation not associated with the Faculty Practice. At all times material, Physicians Associates, P.A., had offices in location(s) different than the Faculty Practice, but the competent, credible evidence herein does not support a finding that either Dr. Lamberty or Dr. Danna ever saw Ms. Santiago in connection with their private P.A. for Ms. Santiago's pregnancy with Yandel. Regardless of Dr. Lamberty's speculation that he could have been present in the hospital and at Yandel's delivery as the "on call" physician on behalf of his private P.A., the totality of the competent credible evidence herein does not support a finding that Dr. Lamberty ever saw Ms. Santiago in connection with her pregnancy with Yandel prior to entering the delivery room on July 19, 2008, although he may have seen Ms. Santiago in connection with the private P.A. for one of her previous pregnancies. At all times material, Dr. Norman Lamberty and Dr. Penny A. Danna also were paid a stipend as part of the teaching staff of Winnie Palmer Hospital for Women & Babies, and in that capacity they assisted physicians in that teaching hospital's residency program with delivering babies. At all times material, they relied on the hospital to provide notice to patients and on the hospital or parent corporation to pay their NICA fees. Apparently, Dr. Danna did not see Ms. Santiago at all during her pregnancy with Yandel until after Ms. Santiago was admitted to the hospital on July 17, 2008, for labor and delivery, and there is merely an equipoise of testimony as to whether or not Dr. Lamberty saw Ms. Santiago during the two days she was in the hospital awaiting Yandel's birth.15/ It is, however, clear that Dr. Lamberty was an "on call" attending physician overseeing residents on behalf of the hospital on the date of Yandel's delivery. Dr. Lamberty is credible that he was the attending physician at Yandel's birth and that a hospital resident delivered Yandel in his presence. Dr. Lamberty did not give the resident's name, but the parties have agreed that the delivering hospital resident was George Amarydakis. (See Finding of Fact 6 and n.7). In 2007-2008, over the course of Yandel's gestation, Ms. Santiago made multiple prenatal visits to the Faculty Practice, and to Winnie Palmer Hospital for Women & Babies. She also pre-registered for her delivery at the hospital. (See Finding of Fact 83). During these visits, she signed at least five forms acknowledging her receipt of the NICA-published "Peace of Mind" brochure which explained her rights under the NICA Plan and her right to choose a non-NICA-affiliated provider if she wished to do so. Each acknowledgment form bore the heading, "ORLANDO REGIONAL HEALTHCARE." Each acknowledgment read as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGEMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc., and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191 /1(800)398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. (emphasis added). The acknowledgment forms do not name or otherwise identify any particular physician as a NICA participant. part: The NICA Peace of Mind brochure read, in pertinent If your health care provider has provided you with a copy of this informational form, your healthcare provider is placing you on notice that one or more physicians at your health care provider participates in the NICA plan. At final hearing, Ms. Santiago testified in English with an Hispanic accent, but she did not represent that she had a global inability to read or understand spoken or written English, and she was able to accurately read aloud the items printed in English which were placed in front of her. She identified her signature on all five NICA acknowledgment forms, and ultimately acknowledged that she had printed her name under her signature and filled in her Social Security number and Yandel's expected delivery date on four of them. Each of these particular four forms bears a sticker showing the name of either Dr. Carolyn Ladowski or Dr. Stephen Carlan, each of whom was then associated with the Faculty Practice. Ms. Santiago represented that she had never received the NICA brochure she had repeatedly acknowledged receiving and that she had volitionally signed one or more NICA acknowledgement forms without reading it/them simply because there were a lot of papers presented for her to sign each time she went to the Faculty Practice. As to all of the acknowledgment forms, Ms. Santiago variously represented that she had not understood the forms she was signing, because if she had understood them, she would not have signed them; that if she had understood them, she would have selected another hospital to go to for Yandel's birth; and that if she had understood the forms, then each time a form was presented to her after the first one was presented, she would have told the presenter of the form, the equivalent of "I signed this before, so I should not have to sign it again now," or "I will not sign again." Her "in the alternative" explanations, provided after the fact and in the course of litigation, are not credible. Nurse Kathy Winkleblack signed as the Faculty Practice's witness to Ms. Santiago's January 8, 2008, NICA acknowledgement form. As might be expected, she did not specifically recall Ms. Santiago. However, she testified that her usual procedure, in presenting the NICA brochure to an obstetrical patient and in securing that patient's signature on the acknowledgment form(s), was to explain orally that "all the physicians" or "all the doctors" at the Faculty Practice were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. In these oral explanations, Nurse Winkleblack made no distinction between "residents" and "resident physicians," and she did not name any specific physicians associated with the Faculty Practice. She simply said that "all the physicians" or "all the doctors" at the Faculty Practice participated in the NICA program. She used acknowledgment forms printed in English unless the obstetrical patient evidenced an inability to understand English, in which case she would use a brochure and acknowledgement form in one of three languages, including Spanish. She had an interpreter available if she needed one. The fact that Nurse Winkleblack had used an English form for Ms. Santiago on January 8, 2008, indicated to her that Ms. Santiago spoke and understood English reasonably well at that time. Nurse Winkleblack always signed as a witness after the patient signed. Three employees of Winnie Palmer Hospital for Women & Babies (Kyle Monroe, Francessca Torres, and Charlotte Wray), signed as witnesses to Ms. Santiago's signature at the hospital on the three acknowledgment forms of January 28, 2008, March 6, 2008, and March 20, 2008, respectively. None of them had a current recollection of Ms. Santiago, either. However, they consistently testified that their usual procedure, in presenting the NICA brochure to an obstetrical patient and in securing that patient's signature on the acknowledgment form(s) at the hospital, was to explain orally that "all the physicians" or "all the doctors" at the hospital were NICA participants; that NICA's "Peace of Mind" brochure explained the patient's rights with regard to potential neurological injury to her infant; and that the patient could call the listed phone numbers to get more information about NICA. Each witness testified that s/he had made no distinction, in any oral explanation to any patient, between "residents" and "resident physicians." None of these witnessing hospital employees had named any specific physicians associated with the hospital in speaking with any obstetrical patients. Additional paperwork supports the January 28, 2008, acknowledgment form as being signed in the hospital, in that it shows that on January 29, 2008, Ms. Santiago underwent a procedure at the hospital. There is also testimony that suggests that one of the forms was associated with a pre- registration for delivery of Yandel. Ms. Winkleblack is credible that the January 8, 2008, form had been signed at the Faculty Practice by Ms. Santiago and by Ms. Winkleblack on Ms. Santiago's first visit to the Faculty Practice. Additional paperwork supports this. The foregoing clear, coherent, and consistent testimony of those who witnessed Ms. Santiago's signature(s), Ms. Santiago's identification of her own signature and other pertinent data on the acknowledgment forms, and Ms. Santiago's inconsistent and less than credible reasons why she would not have knowingly signed any acknowledgements after the first one, are persuasive that Ms. Santiago not only signed all the acknowledgment forms but that she signed them after she had the opportunity to read the NICA brochure and the opportunity to ask any questions she might have wished to ask, even if she did not actually utilize those opportunities. Despite the foregoing, Petitioners submit that the notices herein were faulty because the acknowledgment forms utilized the term, "resident physicians," instead of the individual names of the 22-27 Faculty Practice physicians and the more than 100 physicians on staff at the hospital in the same period. Petitioners reason that, although Ms. Santiago signed acknowledgment forms at both the hospital and the Faculty Practice, the notices she received only used the term "resident physicians" and so did not apprise her that anyone except residents at the Faculty Practice and the hospital were NICA participants. To support their theory, Petitioners rely upon Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, supra, which held, in pertinent part, that: . . . we find that both participating physicians and hospitals with a participating physician on staff are required to provide notice to obstetrical patients of their rights and limitations under the plan.. . . * * * Consequently, under our holding today, if either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimants can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA. (emphasis in original) Petitioners also rely on Florida Administrative Code Rule 64B8-6.004, which provides: 64B8-6.004 Resident Physician and Assistant Resident Physician; Definition of. A resident physician is one who has completed an internship and is engaged in a program of training designed to increase his knowledge of the clinical disciplines of medicine, surgery, or any of the other special fields which provide advanced training in preparation for the practice of a specialty. In the first year following the internship, the person is usually referred to as an assistant resident physician. In the second year, he is usually referred to as a resident physician. Even upon Petitioners' theory, it is abundantly clear that the hospital and Faculty Practice acknowledgment forms gave the notice required by section 766.316, covering the hospital and Faculty Practice residents and assistant residents, regardless of whether those types of residents were contemplated by section 766.314(4)(c). (See § 766.316 quoted at Finding of Fact 64). On the other hand, given that none of the physicians who attended Ms. Santiago for labor, delivery, or the postdelivery resuscitative period were specifically named on the acknowledgment forms presented to her at the Faculty Practice and at the hospital, and given that none of the Intervenors or Dr. Amyradakis gave individual pre-delivery notice of their NICA participation to Ms. Santiago in connection with Yandel's gestation or birth, it is fairly debatable whether the Faculty Practice or Winnie Palmer Hospital for Women & Babies gave notice on behalf of any physician other than their residents and assistant residents. In determining whether there was a lack of NICA notice by those other than Winnie Palmer Hospital for Women & Babies and its residents and assistant residents, and the Faculty Practice's residents and assistant residents, the case of Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 932 So. 2d 1125 (Fla. 5th DCA 2006), has been considered. In that case, personnel taking the obstetrical patient's acknowledgment of NICA coverage on behalf of a professional association of obstetricians had represented that "all our doctors are NICA participants," and the court concluded that they had thereby given satisfactory notice on behalf of all members of the professional association of obstetricians. The implications of Jackson, supra, have been carefully weighed and considered in light of the subsequent case of Florida Birth-Related Neurological Injury Compensation Association v. Department of Administrative Hearings, supra, as well as in light of the "real world" consideration that most patients would not know or comprehend the Florida Administrative Code's legalistic definition of "resident," any more than the hospital and Faculty Practice employees who presented the NICA acknowledgment forms and brochure to Ms. Santiago comprehended that any distinction "at law" might exist between the terms "residents," "resident physicians," "physicians" and "doctors." Herein, the hospital provided its notice, using the same NICA brochure and the same acknowledgment form that the Faculty Practice did. Each of them provided those notices at their separate locations. Each form had the name "Orlando Regional Healthcare" at the top of the acknowledgment form. Each time Ms. Santiago signed one of the acknowledgment forms, she was told the equivalent of "all our doctors participate in NICA." Therefore, the record supports a finding that Ms. Santiago received NICA notice covering both the physicians and the hospital and does not support a finding that Ms. Santiago was misled with regard to NICA coverage. Intervenors have borne their burden of proof to show that the obstetrical patient herein acknowledged receipt of the NICA notice and have thereby established the rebuttable presumption that the notice requirements of section 766.316 were met. Petitioners have not rebutted that presumption. Accordingly, it is found that the NICA notice provided to Ms. Santiago was sufficient as to all hospital staff physicians and all physicians at the Faculty Practice.
The Issue Whether David Weeks, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether the hospital and the participating physician gave the patient notice, 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 by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Bethany Weeks and Michael Weeks are the natural parents of David Weeks (David), a deceased minor, and Bethany Weeks is the Personal Representative of her deceased son's estate. David was born a live infant at 11:00 p.m., November 3, 2002, at South Seminole Hospital, a hospital located in Longwood, Florida, and, following the termination of resuscitation efforts, was pronounced dead at 11:30 p.m. David's birth weight was 2,925 grams. The physician providing obstetrical services at David's birth was Christopher Quinsey, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. Here, the proof is compelling that David suffered an injury to the brain caused by oxygen deprivation, secondary to placental abruption, in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, that led inevitably to his death shortly after birth. Consequently, the record demonstrated that David suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes, provides for an award of the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. 2. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. In this case, Petitioner and NICA have agreed that, should Petitioner elect to accept benefits under the Plan, Bethany Weeks and Michael Weeks, as the parents of David, be awarded $100,000.00, to be paid in lump sum. The parties have further agreed that Petitioner Bethany Weeks, as Personal Representative of the Estate of David Weeks, be awarded a death benefit of $10,000.00, and an award of $4,115.00 for attorney's fees ($1,575.00 for Petitioner's counsel David J. White, Jr., and $2,040.00 for Petitioner's co-counsel Patrick C. Massa) and other expenses ($500.00) incurred in connection with the filing of the claim. Finally, the parties have agreed that no monies are owing for past expenses. Such agreement is reasonable, and is approved. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioner would prefer to pursue her civil remedies, and has averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at David's birth (Dr. Quinsey), failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied.3 At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[4] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Petitioner's Exhibit 7.) Findings related to Mrs. Weeks' prenatal care and notice Initially, Mrs. Weeks received prenatal care at the Seminole County Health Department, where she was first seen on June 18, 2002, and then transferred to Advanced Women's Health Specialists (AWHS) in September 2002, at 29 3/7 weeks' gestation. Notably, Mrs. Weeks had extensive workups at the Seminole County Health Department, and she delivered a copy of her medical records (which she received from the health department on September 13, 2002) to AWHS, most likely at her first visit, Monday, September 16, 2002.5 According to Mrs. Weeks' patient chart, AWHS received the following documents from the health department: a flow sheet; progress notes; history; physical; PAP; blood work/all labs; Chlamydia, gonorrhea, hepatitis results; RPR results; tri-screen results; HIV results; sonogram result; one hour GTT results; and urine culture results. (Doctors' Exhibit 10.) Pertinent to the notice issue, the physicians (who were members of the AWHS group practice) and AWHS presented evidence (through the testimony of Bonnie Mladec, the clinical coordinator for AWHS) that when Mrs. Weeks presented to AWHS for her initial visit, AWHS had a routine pursuant to which all new patients, regardless of the stage of their pregnancy, and regardless of whether they started their prenatal care with another provider, were given a copy of the NICA brochure by the medical assistant who interviewed them, together with eight other documents. (Doctors' Exhibits 1-9.) Four of the documents were informational, and did not require a signature: the NICA brochure; a one-page list of safe medications to use during pregnancy; a one-page document titled "Why Breastfeed?"; and a one-page document explaining the Healthy Start Program. The five documents that required a signature were a Notice to Our Obstetrics Patients (to acknowledge receipt of the NICA brochure)6; consent to HIV Antibody Test form (to accept or decline the test); a Triple Test Screening for Birth Defects form (to accept a decline the test); a Cystic Fibrosis Carrier Testing form (to accept or decline the test); and a Healthy Start Prenatal Risk Screen form (to accept or decline screening). Notably, Mrs. Weeks' chart does not include, as it should if AWHS's routine was followed, a copy of a Notice to Our Obstetric Patients form signed by Mrs. Weeks, or a copy of any of the other forms patients were routinely requested to sign. (Doctors' Exhibit 10; Transcript, pages 21-25.) Nevertheless, the physicians and AWHS contend there is no reason to conclude AWHS's routine was not followed because each test was performed, and AWHS would not have performed the tests absent Mrs. Weeks' written consent. In contrast to the proof offered regarding AWHS's routine, Mrs. Weeks testified that no such routine was followed when she presented for her initial visit.7 According to Mrs. Weeks, no one discussed the Plan with her, she did not receive a NICA brochure, did not sign a receipt for a brochure, and did not sign any other document that would have been part of the routine. Here, the evidence failed to support the conclusion that, more likely than not, AWHS's routine was followed. In so concluding, it is noted that, Mrs. Weeks' chart contains no document signed by Mrs. Weeks that would have been part of AWHS's routine, and contrary to the contention of the physicians and AWHS, and contrary to the testimony they offered to support such contention, the charting of HIV Antibody test results and a Triple Test Screening does not support the conclusion that AWHS's routine was followed. Rather, it demonstrates that AWHS merely accepted the results the health department had obtained. As for the Healthy Start Prenatal Risk Screen, Mrs. Weeks' chart contains no evidence that AWHS presented her with that form to sign. Rather, since the health department's prenatal record reveals that Healthy Start Screening had been completed, given AWHS's acceptance of other department of health testing, and given no further explanation, it is likely AWHS did not pursue the matter. Consequently, as to these forms, the record offers no compelling proof that AWHS followed its routine. Rather, it offers proof to the contrary. As for the Cystic Fibrosis Carrier Test, the record does reveal that test was done at AWHS, and Mrs. Weeks' chart (Antepartum Record, page D, under Comments/Additional Labs) contains an entry ("[C]ystic F[ibrosis]=accepted [,] drawn on 9/16/02") that supports the conclusion she consented to the test at her initial visit. However, given the proof, or lack thereof, these findings are not compelling proof that Mrs. Weeks' consent to the Cystic Fibrosis Carrier Test was part of an invariable routine that was followed at a patient's initial visit. Therefore, the proof fails to support the conclusion that AWHS's routine was followed on Mrs. Weeks' initial visit, or that Mrs. Weeks received a NICA brochure or signed a receipt for a NICA brochure on her initial visit. Findings related to David's birth and notice At or about 8:15 p.m., November 3, 2002, Mrs. Weeks, with an estimated delivery date of November 27, 2002, and the fetus at 36 5/7 weeks' gestation, presented to Labor and Delivery Triage, at South Seminole Hospital, in labor (with evidence of the onset and persistence of uterine contractions). At the time, Mrs. Weeks' chief complaint was noted as "[contractions] most of today, becoming more uncomfortable since [6:00 p.m.]." The notes of the triage nurse (Bernadette Charles, R.N.) include the following narrative: Client received from ER in wheelchair with above complaints. Crying and complain of labor pains. Denies rupture of membranes or bright red vag bleeding. Client's restless and uncooperative. Encouraged to relax between contractions Elevated B[lood] P[ressure] noted. Client complained of headaches, DTRs 3[+ very brisk], no clonus, edema 2 to 3+ . . . [P]ain scale [8- 9/10]. (Petitioner's Exhibit 1, pages 21 and 22; Petitioners Exhibit 6, page 0533.) Initial assessment in triage noted uterine contractions of moderate intensity, every 2 to 3 minutes, with a duration of 40 to 50 seconds. Blood pressure was elevated (164/112), and vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus between station -1 and -2. At 8:45 p.m., Ms. Charles spoke with Lesann Dwyer, a certified nurse midwife (CNM) at AWHS, and at 8:55 p.m., she spoke with Dr. Quinsey, and received orders to admit Mrs. Weeks to labor and delivery. Thereafter, at 9:05 p.m., Mrs. Weeks was moved by wheelchair from triage to labor and delivery room 403, where she was admitted at 9:10 p.m. According to Ms. Charles' admission note: client admitted to LR 403 in early labor . . . P[ain]/S[cale] 6/10-Client crying- uncooperative. Requesting something for pain . . . . According to the medical records, by 9:15 p.m., the time at which the activities were documented, Mrs. Weeks was in her bed, positioned on her right side, and an external fetal monitor and blood pressure monitor were attached. At the time, assessment revealed an elevated blood pressure (173/103); a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability; the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at station -1; moderate uterine contractions, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds; and a pain severity level of 7-8/10. Also noted, an IV had been started, labs drawn, and Mrs. Weeks had been asked to sign a number of documents, including an acknowledgment of receipt of NICA notice.8 The acknowledgement form provided, as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc. and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191/ 1 (800) 398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. Dated this day of , 2002. Signature Name of Patient Social Security No. Witness: Date: Mrs. Weeks concedes she signed the acknowledgment form. However, she denies she received the NICA brochure. Subsequently, at 9:20 p.m., Mrs. Weeks was given Stadal (for pain) and magnesium sulfate (for pregnancy-induced high blood pressure), and at 9:30 p.m., the records note a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability, and contractions of moderate intensity, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds. Thereafter, there is a gap in documentation until 10:00 p.m., when fetal heart rate is noted in the 90 to 100 beat per minute range, Mrs. Weeks is given oxygen and a position change, and Dr. Quinsey is called and updated. Shortly thereafter, at 10:05 p.m., anesthesiology was alerted to a possible cesarean section, and at 10:20 p.m., Ms. Charles attempted to place a fetal scalp electrode and Mrs. Weeks membranes ruptured. By 10:25 p.m., Dr. Quinsey had arrived at the hospital, and was noted at bedside. At the time, Dr. Quinsey observed Mrs. Weeks was having constant abdominal pain, with a tense abdomen, consistent with placental abruption, and an emergent cesarean section was indicated. Under the circumstances, it was Dr. Quinsey's opinion, which was credible and uncontroverted, that inadequate time remained to safely transfer Mrs. Weeks to another hospital prior to delivery, and any transfer may have posed a threat to the health and safety of Mrs. Weeks or her fetus. Given Mrs. Weeks' presentation, a stat cesarean section was called, and Mrs. Weeks was moved to the operating room, where she was admitted at 10:40 p.m. According to the records, surgery started at 10:57 p.m., and David was delivered at 11:00 p.m., with an Apgar score of 1 and 0, at one and five minutes respectively.9 Resolution of the notice issue with regard to the participating physician With regard to Dr. Quinsey, the participating physician who provided obstetrical services at David's birth, the proof demonstrates that, although it was practicable to do so during her prenatal care at AWHS, Mrs. Weeks was not given notice.10 However, since Mrs. Weeks had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, when Dr. Quinsey provided obstetrical services to her on November 3, 2002, he was exempt from the pre-delivery notice requirement, notwithstanding it may have been practicable for him to have provided Mrs. Weeks notice during her prenatal care at AWHS. § 766.316, Fla. Stat.; Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582, 586 (Fla. 5th DCA 2005)("We hold that the statute contains two distinct exemptions, each of which independently provides an exception to the pre-delivery notice requirement. As such, [the hospital] was excused from providing notice to [the patient] when she arrived at the [hospital] under emergency medical conditions, and her previous visits to the hospital during her pregnancy did not negate this clear statutory exemption."). Consequently, with regard to the participating physician, the notice provisions of the Plan were satisfied. Resolution of the notice issue with regard to the hospital With regard to the hospital, it was the hospital's policy to provide the patient with a copy of the NICA brochure, together with an acknowledgment form for the patient to sign acknowledging receipt of the brochure, following admission to labor and delivery. Here, there is no dispute that Mrs. Weeks signed the acknowledgment form at or about 9:15 p.m., following her admission to labor and delivery.11 What is disputed, is whether Mrs. Weeks was given a NICA brochure. Petitioner also contends that the brochure, if given, was not provided a reasonable time prior to delivery to allow for the exercise of an informed choice of providers. As to this contention, Petitioner notes that the hospital had an opportunity to provide meaningful notice during two prior admissions, as well as during Mrs. Weeks' preregistration, but failed to do so, and that "[a]t the time [] the NICA brochure was allegedly given to Bethany Weeks [on November 3, 2002] she was expected to read it while she was having contractions, in pain, receiving lactate ringers, and while labs were being drawn," a less than opportune time. (Petitioner's Proposal Final Order, paragraph 26.) Stated otherwise, Petitioner contends that, if she was given the brochure on November 3, 2002, it was not efficacious notice. However, the hospital, like the participating physician who delivered obstetrical services at David's birth, was exempt from the pre-delivery notice requirement, since when Mrs. Weeks presented to South Seminole Hospital at or about 8:15 a.m., November 3, 2002, she had an "emergency medical condition" ("evidence of the onset and persistence of uterine contractions"), as defined by Section 395.002(9)(b), Florida Statutes, and notwithstanding it may have been practicable for the hospital to have provided Mrs. Weeks' notice during her previous visits to the hospital. § 766.316, Fla. Stat.; Orlando Regional Healthcare Systems, Inc. v. Alexander, supra. Consequently, it is unnecessary to address whether Mrs. Weeks was given a NICA brochure or whether, if given, the notice was efficacious.
The Issue At issue is whether Wesley Dunaway, III, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Daphne Waller is the natural mother of Wesley Dunaway, III, a minor. Wesley was born a live infant on February 11, 2003,2 at North Florida Regional Medical Center, a licensed hospital located in Gainesville, Alachua County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Wesley's birth was Anthony Agrios, 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." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, indisputably, Wesley is permanently and substantially mentally and physically impaired.3 What remains to resolve is whether the record supports the conclusion that, more likely than not, Wesley's neurologic impairment resulted from 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," as required for coverage under the Plan. The cause and timing of Wesley's neurologic impairment To address the cause and timing of Wesley's neurologic impairment, the parties offered medical records related to, inter alia, Ms. Waller's antepartum course; those associated with Wesley's birth and subsequent development; and the opinions of Dr. Michael Duchowny, a pediatric neurologist, and Dr. Donald Willis, an obstetrician, regarding the likely etiology of Wesley's impairment. (Exhibits 1-13). As for the etiology of Wesley's neurologic impairment, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Wesley on October 25, 2004, and review of the medical records, that, while of unknown etiology, Wesley's neurologic impairment was most likely prenatal (developmental) in origin, having occurred prior to the onset of labor, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. As for Dr. Willis, he, like Dr. Duchowny, was of the opinion that the medical records failed to support a conclusion that Wesley's brain damage was associated with the birth process. Finally, the medical records, including the observations of the physicians who have treated Wesley, while unrevealing as to etiology, also speak to the likelihood of a developmental disorder, as opposed to birth trauma, as the cause of Wesley's neurologic impairment.4 Given the record, it must be resolved that Wesley's impairments were, more likely than not, occasioned by a developmental abnormality, that preceded the onset of labor, and not by an injury to the brain occurring in the course of labor, delivery, or resuscitation. See, e.g., 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 obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); 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 Issue Whether Loren Romine, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement of a civil action for medical malpractice against the treating obstetrician and hospital, bars them from recovering benefits under the Plan.
Findings Of Fact Findings related to compensability John Romine and Rebecca Romine are husband and wife, as well as the natural parents and court-appointed guardians of the property of Loren Romine (Loren), a minor. Loren was born January 26, 1998, at Columbia Regional Medical Center - Oak Hill, a hospital located in Brooksville, Hernando County, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Loren's birth was Samir Shakfeh, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who have suffered a "birth-related neurological injury," defined as an injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Loren sustained a "birth-related neurological injury," as that term is defined by the Plan. Findings related to the settlement of the civil action On December 29, 1998, the Romine family served a Notice of Intent to Initiate Litigation, pursuant to Section 766.106, Florida Statutes, on Dr. Shakfeh and Columbia Regional Medical Center - Oak Hill. At the conclusion of the 90-day pre-suit screening period, both the doctor and the hospital denied the claim and on April 12, 1999, the Romine family filed suit against the doctor and the hospital in the Circuit Court of Hernando County. That case was styled John Romine and Rebecca Romine, as parents and next friends of Loren Romine, a minor, and John Romine and Rebecca Romine, individually, Plaintiffs, v. HCA Health Services of Florida, Inc., d/b/a Columbia Regional Medical Center - Oak Hill, and Samir Shakfeh, M.D., Defendants, Case No. 99-857-CA01-Law. Both the doctor and the hospital denied liability and raised, as an affirmative defense, Plan immunity. Petitioners replied to that defense, and alleged that the doctor and the hospital failed to provide notice as required by the Plan. Section 766.316, Florida Statutes. On November 29, 2000, the hospital filed a Motion to Abate the civil action until the Romines filed a petition for Plan benefits with the Division of Administrative Hearings and an administrative law judge had resolved whether Loren had suffered a compensable injury and whether the doctor and the hospital had complied with the notice provisions of the Plan. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") The Motion to Abate was never set for hearing, and the case proceeded to mediation on December 7, 2000. Following mediation, the Romine family, the doctor, and the hospital, as well as the doctor's and the hospital's malpractice insurance carriers, reached an agreement to settle the civil suit. The settlement provided for an immediate cash payment to John Romine, Rebecca Romine, and Loren Romine, and the purchase of annuities for each of them. The total present value of the settlement was $5,250,000. The written agreement between the Romines and the hospital included the following stipulation: The parties agree that no part of the Settlement is intended to impair in any manner plaintiff's rights to pursue NICA benefits nor is it intended to be a release of any NICA benefits that may be due plaintiffs. It has always been and remains the position of the Defendant that this claim is covered by NICA. The Defendant agrees that it will take no action and refrain from doing anything to defeat or disparage plaintiff's NICA claim in any way . . . . The written settlement agreement between the Romines and the doctor contained a similar stipulation. On or about January 18, 2001, the Romines filed a Petition for Approval and Apportionment of Settlement Involving Minor in the civil suit. And, on or about January 23, 2001, the Guardian Ad Litem filed a written report with the court, and recommended approval of the settlement and apportionment of the settlement as proposed by the Romines. A hearing was held before the trial court on January 26, 2001, and on the same date the trial court entered an order granting the Petition for Approval and Apportionment of Settlement. The order further provided, as follows: 3. Nothing about this settlement is intended by the parties or this Court to limit or reduce the amount of compensation which may be recoverable by the Petitioners or LOREN ROMINE in a subsequent NICA proceeding, or from any other governmental program or private health insuror. NICA was not a party to the settlement agreements entered into between the Romine family and the healthcare providers, nor was it advised of and nor did it participate in the hearing on the Petition for Approval and Apportionment of Settlement. After the settlement was approved by the trial court, the settlement funds were disbursed to the Romines and releases were exchanged. Petitioners filed their claim for benefits under the Plan on June 14, 2001, seeking actual expenses for, inter alia, Loren's medical and hospital care, and a lump sum award to Mr. and Mrs. Romine of $100,000.
The Issue At issue in the proceeding is whether Selvin McCoy, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact As observed in the preliminary statement, neither Petitioner nor anyone on her behalf appeared at hearing, and no proof was offered to support her claim. Respondent, in light of such failure, declined the opportunity to offer any evidence. Consequently, there being no proof, it cannot be factually resolved whether Selvin McCoy, a minor, suffered a "birth-related neurological injury" as alleged in the claim for benefits.
