The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. 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 notice was accorded the patient, as contemplated by Section 766.316, Florida Statutes (2000),1 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 otherwise not practicable.
Findings Of Fact Findings related to compensability Yvette Ortiz and Erick Alberto Ortiz are the natural parents and guardians of Erick Alejandro Ortiz, a minor. Erick was born a live infant on December 18, 2000, at Northwest Medical Center, a hospital located in Broward County, Florida, and his birth weight exceeded 2,500 grams. Moulton Keane, M.D., who was, at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes, provided obstetrical services during the course of Mrs. Ortiz's labor, as well as Erick's delivery and resuscitation. Also providing obstetrical services during Mrs. Ortiz's labor was Alison Clarke-DeSouza, M.D.; however, Dr. DeSouza was not a participating physician in the Plan. When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth 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(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Erick suffered severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, the claim is compensable and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When, as here, it has been resolved that a claim qualifies for coverage under the Plan, 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 (2000), provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . . 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. 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 this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $1,258.16 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $7,500.00, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. 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 2000). 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, 29 Fla. L. Weekly D227a (Fla. 2d DCA Jan. 14, 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 29 Fla. L. Weekly D216 (Fla. 2d DCA Dec. 17, 2003)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 29 Fla. L. Weekly D226a (Fla. 2d DCA Jan. 14, 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 form (the NICA brochure), which contained an 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 it to their obstetrical patients. Findings related to notice Mrs. Ortiz received her prenatal care at South Florida Women's Health Associates, a group practice dedicated to obstetrics and gynecology. Tara Solomon, M.D., and Moulton Keane, M.D., were among the physicians who practiced with the group. Pertinent to the notice issue, the proof demonstrates that from March 25, 2000, the date of Mrs. Ortiz's first visit to South Florida Women's Health Associates, until her presentation at Northwest Medical Center on December 17, 2000, for Erick's birth, Mrs. Ortiz was primarily seen by Dr. Solomon, who was not a "participating physician" in the plan. However, on three occasions Mrs. Ortiz was seen by Dr. Keane: once when Dr. Solomon was not available for Mrs. Ortiz's regular appointment with Dr. Solomon, and thereafter on June 21, 2000, for an amniocentesis and on October 17, 2000, for an ultrasound. Notably, although Dr. Keane was a "participating physician" in the Plan, Mrs. Ortiz was never provided a copy of the NICA brochure or notice of Dr. Keane's participation in the Plan, either during her prenatal care or Erick's birth. Also pertinent to the notice issue, the proof demonstrates that on August 25, 2000, Mrs. Ortiz presented for pre-registration at Northwest Medical Center, a facility at which she had been told the physicians associated with South Florida Women's Health Associates had staff privileges. At that time, Mrs. Ortiz supplied pertinent pre-admission data, presumably similar to that requested by Northwest Medical Center's pre- admission form (Petitioners' Exhibit 17); signed a Conditions and Consent for Treatment form (Petitioners' Exhibit 12); and was given an advance directives booklet (Petitioners' Exhibit 14) and a Northwest Medical Center Patient Handbook (Petitioners' Exhibit 13). Notably, none of the materials Mrs. Ortiz signed or was given referred to the Plan, and she was not otherwise advised of the Plan or provided a copy of the NICA brochure. On December 17, 2000, with the fetus at term (41+ weeks gestation), Mrs. Ortiz presented at Northwest Medical Center, where she was received in labor and delivery at 6:07 p.m. At the time, Mrs. Ortiz complained of uterine contractions every 10 to 13 minutes since noon, and denied bleeding or rupture of the membranes. Vaginal examination revealed the cervix at fingertip, effacement at 70 percent, and the fetus at -3 station, and contractions were noted as mild, at a frequency of 2-4 minutes, with a duration of 50-60 seconds. Dr. DeSouza, who was covering for Dr. Keane, was called and given a report on Mrs. Ortiz's status. At 7:50 p.m., Dr. DeSouza was noted at bedside. At the time, contractions were strong, at a frequency of 1 to 5 minutes, with a duration of 40 to 80 seconds, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 75 percent, and the fetus at -2 station. Artificial rupture of the membranes did not reveal any fluid draining. Routine labor room admitting orders were issued by Dr. DeSouza, and Mrs. Ortiz, who had previously been monitored as an outpatient, was admitted as an impatient, to labor and delivery. Notably, as a matter of course, the hospital did not provide NICA notice, although it could easily have done so, prior to admission as an inpatient. Following admission, the labor and delivery nurse on duty at the time, Patricia Thomas, R.N., presented two forms for Mrs. Ortiz's signature, as well as a Patient Questionnaire (also referred to as an anesthesia questionnaire in this proceeding) for her to complete. The first form was a two-sided document, the front of which contained a Consent for Anesthesia and the back of which contained a Consent for Surgery/Blood Transfusion (the consent form), which were signed by Mrs. Ortiz and witnessed by Nurse Thomas at 8:20 p.m., and 8:30 p.m., respectively. The second form presented for signature was a Notice to Obstetric Patient, regarding the Florida Birth-Related Neurological Injury Compensation Plan. The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by NORTHWEST MEDICAL CENTER prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. Not all OB/GYN physicians participate in NICA. For specifics on the program, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association, P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received and will read a copy of the brochure prepared by NICA. Name of Patient Signature Date/Time Witness Date/Time Contemporaneously with the notice, Mrs. Ortiz was given a copy of the NICA brochure.2 Here, there is no dispute Mrs. Ortiz signed the Notice to Obstetric Patient form (notice form) and no compelling proof that she was not also provided a copy of the NICA brochure. What is disputed is whether the notice form and NICA brochure were provided contemporaneously with the consent form. Petitioners also contend the notice form and the NICA brochure were not provided a reasonable time prior to delivery. Lending confusion to when the notice form and NICA brochure were provided is the fact that the notice form does not include, as the form requires, the time it was signed. Supportive of the conclusion that the notice form was not provided or executed contemporaneously with the consent form is the fact that it was not witnessed by Nurse Thomas, as one would reasonably expect, but by Mr. Ortiz, who was not present at the time the consent form was executed, and who was not present until sometime between 9:30 p.m. and 10:00 p.m. Under the circumstances, the record is not compelling that the notice form or NICA brochure was provided to Mrs. Ortiz prior to 9:30 p.m., and no compelling proof to demonstrate when, thereafter, the NICA notice was provided by the hospital. At 8:45 p.m., Dr. Keane, who had assumed Mrs. Ortiz's care, called to inquire about her status. At the time, Dr. Keane was notified that no accelerations were present, variability was decreased, the fetal heart rate baseline was 150-153 beats per minute, and no fluid was draining. Dr. Keane gave orders for observation and pain medication. At 10:10 p.m., vaginal examination revealed little progress, with the cervix at 1 centimeter, effacement at 80 percent, and the fetus at -2 station. Dr. Keane was beeped and returned the call at 10:20 p.m. At the time Dr. Keane was informed of the results of the vaginal examination; that Mrs. Ortiz was on continuous oxygen, left lateral position; and that there was no change in variability, no accelerations, and occasional late decelerations. Dr. Keane requested the fetal monitor strip be faxed to him. According to the labor record, the strip was faxed to Dr. Keane at 10:30 p.m., and at 10:45 p.m., he called to say he had reviewed the strips. At the time, the labor record notes: . . . M.D. states that at the moment delivery was not indicated. Orders received for pain medication. MD notified that patient was on continuous oxygen . . . via face mask . . . [no] fluid draining; left lateral position[;] occ[asional] late decels; [and no] spontaneous accel[erations]. At 12:10 a.m., December 18, 2000, Dr. Keane was informed that late deceleration had been noted, with decreased variability, and no accelerations. Dr. Keane ordered a labor epidural, as requested by Mrs. Ortiz. Thereafter, at 12:55 a.m., Dr. Keane was informed fetal heart monitoring revealed repetitive late decelerations, with occasional decreased variability; Dr. Keane ordered preparations for a cesarean section; at 1:35 a.m., Dr. Keane was at bedside; at 1:53 a.m., Mrs. Ortiz was moved to the operating room; and at 2:26 a.m., Erick was delivered.
The Issue Whether Patrick Pendergraft (Patrick), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioner's recovery, through settlement of a civil suit for negligence against Memorial Hospital West, the hospital at which Patrick was born, bars Petitioner from receiving an award of Plan benefits.
Findings Of Fact Stipulated facts Petitioner, Melva Pendergraft, is the natural mother and guardian of Patrick Pendergraft, a minor. Patrick was born a live infant on May 8, 2000, at South Broward Hospital District, d/b/a Memorial Hospital West, a licensed hospital located in Pembroke Pines, Florida, and his weight exceeded 2,500 grams. The physician providing obstetrical services during Patrick's birth was Miguel Venereo, 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. Patrick suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. The hospital (Memorial Hospital West) and participating physician (Dr. Venereo) complied with the notice provisions of the Plan. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . of a live infant weighing at least 2,500 grams at birth 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 Patrick suffered such an 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 Memorial Hospital West On June 14, 2002, Melva Pendergraft, individually and as natural parent and guardian of Patrick Pendergraft, a minor, filed a complaint for damages on her own behalf, as well as her minor son, against Robert Fields, M.D. (for acts or omissions during Ms. Pendergraft's prenatal care on January 10, 2000, and May 5, 2000); Miguel Venereo, M.D. (for acts or omissions during Ms. Pendergraft's prenatal care on January 10, 2000, and May 5, 2000, as well as during the course of Ms. Pendergraft's labor and Patrick's delivery on May 8, 2000); and South Broward Hospital District, d/b/a Memorial Hospital West (for the acts or omissions of Doctors Fields and Venereo, as well as others, on January 10, 2000, May 5, 2000, and May 8, 2000), in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Case No. 02-11798 CA 13. Pertinent to this case, the complaint for damages alleged the following facts giving rise to the suit: On or about January 10, 2000, MELVA PENDERGRAFT presented to MEMORIAL HOSPITAL WEST in Broward County, Florida, with complaints of cramping and spotting. She was then thirty seven (37) years old, gravida I and pregnant with an estimated confinement date of April 27, 2000. ROBERT FIELDS, M.D. and/or MIGUEL VENEREO, M.D., was/were the obstetrician(s)/gynecologist(s) assigned by MEMORIAL HOSPITAL WEST as responsible for her care and treatment on that date. However, MELVA PENDERGRAFT was evaluated face-to-face only by nursing employee(s) of MEMORIAL HOSPITAL WEST, monitored for contractions and sent home to "Go to Regional if any further problems." On or about May 5, 2000, MELVA PENDERGRAFT again presented to MEMORIAL HOSPITAL WEST with complaints of decreased fetal movement and pelvic pain and was noted to be pregnant with an estimated confinement date of April 27, 2000. ROBERT FIELDS, M.D. and/or MIGUEL VENEREO, M.D. was/were again assigned by MEMORIAL HOSPITAL WEST as the obstetrician(s)/gynecologist(s) responsible for her care and treatment on that date. However, again, MELVA PENDERGRAFT was evaluated face-to-face only by a nursing employee of MEMORIAL HOSPITAL WEST, who documented only "pain on urination and muscle pain" as her chief medical complaints. She was placed on a fetal monitor and then sent home without further evaluation with instructions, "Per DR. FIELDS, to follow-up with DR. VENEREO on Monday, if she does not go into labor this weekend." On or about May 8, 2000, MELVA PENDERGRAFT returned to MEMORIAL HOSPITAL WEST in labor and a cesarean section was performed by MIGUEL VENEREO, M.D. for fetal distress. On or about May 8, 2000, PATRICK PENDERGRAFT was delivered by cesarean section in a severely and permanently brain-damaged condition. Count I of the complaint asserted a claim against Dr. Fields, related to his care of Ms. Pendergraft on January 10, 2000, and May 5, 2000, for injuries suffered by Ms. Pendergraft and Patrick. (Respondent's Exhibit 3, paragraphs 14-16, 35, and 36) That claim included the following allegations: Plaintiff adopts and realleges Paragraphs 1 through 13, above, and further alleges: As the treating obstetrician/gynecologist responsible for the care and treatment of MELVA PENDERGRAFT on or about January 10, 2000 and May 5, 2000, Defendant, ROBERT FIELDS, M.D., owed a duty to Plaintiff, MELVA PENDERGRAFT, to render medical care and services commensurate with the prevailing professional standard of care for similar health care providers in this and like communities. Notwithstanding this duty, Defendant ROBERT FIELDS, M.D. did or failed to do one or more of the following acts of omission or commission: Negligently failed to take an adequate and accurate history from MELVA PENDERGRAFT; Negligently failed to perform a physical examination of MELVA PENDERGRAFT and to assess her condition and the condition of her unborn child, PATRICK PENDERGRAFT; Negligently failed to order necessary and appropriate diagnostic studies for MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently failed [to] obtain appropriate consults from other medical specialists to evaluate the condition of MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently failed to timely institute the appropriate medical care and treatment which was indicated in light of the medical conditions of MELVA PENDERCRAFT and PATRICK PENDERCRAFT; Negligently and recklessly relied upon the evaluation of nursing personnel to determine that MELVA PENDERGRAFT should be discharged without further medical evaluation or treatment; Negligently provided and/or approved inadequate, inappropriate and/or misleading discharge instructions to MELVA PENDERGRAFT; and Other negligent acts of omission or commission which may become known through discovery. As a direct and proximate result of the negligence of Defendant, ROBERT FIELDS, M.D., the Plaintiffs have sustained the damages more particularly described below.[3] Count II of the complaint asserted a claim against Dr. Venereo, related to his care of Ms. Pendergraft on January 10, 2000, May 5, 2000, and May 8, 2000, for injuries suffered by Ms. Pendergraft and Patrick. (Respondent's Exhibit 3, paragraphs 17-19, 35, and 36) That claim included the following allegations: Plaintiff adopts and realleges paragraphs 1 through 13, above, and further alleges: As the treating obstetrician/gynecologist responsible for the care and treatment of MELVA PENDERGRAFT on or about January 10, 2000, May 5, 2000, May 8, 2000 and thereafter, Defendant, MIGUEL VENEREO, M.D., owed a duty to Plaintiff, MELVA PENDERGRAFT, to render medical care and services commensurate with the prevailing professional standard of care for similar health care providers in this and like communities. Notwithstanding this duty, Defendant, MIGUEL VENEREO, M.D., did or failed to do one or more of the following acts of omission and/or commission: Negligently failed to take an adequate and accurate history from MELVA PENDERGRAFT; Negligently failed to perform a physical examination of MELVA PENDERGRAFT and to assess her condition and the condition of her unborn child, PATRICK PENDERGRAFT; Negligently failed to order necessary and appropriate diagnostic studies for MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently failed [to] obtain appropriate consults from other medical specialists to evaluate the condition of MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently failed to timely institute the appropriate medical care and treatment which was indicated in light of the medical conditions of MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently and recklessly relied upon the evaluation of nursing personnel to determine that MELVA PENDERGRAFT should be discharged without further medical evaluation or treatment on January 10, 2000 and/or on May 5, 2000; Negligently provided and/or approved inadequate, inappropriate and/or misleading discharge instructions to MELVA PENDERGRAFT on January 10, 2000 and/or on May 5, 2000; Negligently caused a delay or allowed a delay in performing a STAT cesarean section on May 8, 2000; Negligently managed MELVA PENDERGRAFT's labor and delivery; and (K) Other negligent acts of omission or commission which may become known through discovery. As a direct and proximate result of the negligence of Defendant, MIGUEL VENEREO, M.D., the Plaintiffs have sustained the damages more particularly described below.[4] Counts III, IV, V, and VI of the complaint asserted a claim against Memorial Hospital West, related to the care provided Ms. Pendergraft on January 10, 2000, May 5, 2000, and May 8, 2000, for injuries suffered by Ms. Pendergraft and Patrick. (Respondent's Exhibit 3, paragraphs 20-36) Count III included a claim of vicarious liability for the acts or omissions of Doctors Fields and Venereo, among others, and included the following allegations: Plaintiff adopts and realleges paragraphs 1 through 13, above, and further alleges: At all times material, Defendant, MEMORIAL WEST, undertook a duty to provide obstetric and gynecologic medical care and services to Plaintiff in a manner commensurate with the prevailing standard of care for similar health care provider hospitals in this and like communities. This duty included the provision of qualified physicians, nursing personnel and other personnel, as well as medical services to appropriately care for and treat its obstetric patients and their unborn children, including Plaintiffs, MELVA PENDERGRAFT and PATRICK PENDERGRAFT. This duty further included the maintenance and enforcement of hospital policies and procedures which would assure appropriate evaluation, monitoring and management of its obstetric patients and their unborn children, including Plaintiffs, MELVA PENDERGRAFT and PATRICK PENDERGRAFT. Notwithstanding these duties, Defendant, MEMORIAL HOSPITAL WEST, by and through its actual and/or apparent agents, servants and/or employees, did or failed to do one or more of the following acts of omission or commission: Negligently failed to take adequate and accurate histories from MELVA PENDERGRAFT on January 10, 2000, on May 5, 2000 and May 8, 2000; Negligently failed to perform and/or timely perform a physical examination of MELVA PENDERGRAFT by a qualified physician to assess her condition and the condition of her unborn child, PATRICK PENDERGRAFT on January 10, 2000, on May 5, 2000 and on May 8, 2000; Negligently failed to order and/or timely order necessary and appropriate diagnostic studies for MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently failed obtain appropriate consults from other medical specialists to evaluate the conditions of MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently failed to timely institute the appropriate medical care and treatment which was indicated in light of the medical conditions of MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently and recklessly relied upon and/or permitted the evaluation of nursing personnel alone to determine that MELVA PENDERGRAFT should be discharged without further medical evaluation or treatment; Negligently provided and/or approved inadequate, inappropriate and/or misleading discharge instructions to MELVA PENDERGRAFT; Negligently delayed or caused a delay in the performance of the STAT C-section on May 8, 2000; Negligently and carelessly failed to have in place policies and procedure[s] or follow such policies and procedures in order that appropriate diagnostic tests, studies and treatment would be recommended, performed and ordered to evaluate and diagnose the conditions of MELVA PENDERGRAFT and PATRICK PENDERGRAFT; Negligently failed to have in place policies and procedures, or to follow policies and procedures, with respect to diagnosis, monitoring and treatment of fetal distress; Negligently managed MELVA PENDERGRAFT's labor and delivery; and Other negligent acts of omission or commission which may become know through discovery. As a direct and proximate result of the negligence of MEMORIAL WEST, Plaintiffs have sustained the damages more particularly described below.[5] A settlement was reached in the civil suit with Memorial Hospital West for $100,000.00, the sovereign immunity limit, and with Dr. Fields for $250,000.00, the limit of his insurance coverage. (Respondent's Exhibit 4) That settlement was approved by court Order of May 17, 2004, and Amended Order of May 24, 2004. (Respondent's Exhibit 8) Thereafter, given the consummation of the settlement agreement, and with the parties' agreement, the court dismissed the case against Memorial Hospital West, by Order of July 6, 2004, and against Dr. Fields, by Order of July 8, 2004. (Respondent's Exhibits 9-12) Apparently, the case against Dr. Venereo remains pending. Of note, Ms. Pendergraft executed a full and final Release of All Claims as to Memorial Hospital West. (Respondent's Exhibits 13).
The Issue At issue is whether Christopher White-Maldonado, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Preliminary findings Petitioner, Susanna Maldonado, is the natural mother and guardian of Christopher White-Maldonado, a minor. Christopher was born a live infant on January 1, 2000, at Orlando Regional Healthcare System, Inc., d/b/a Arnold Palmer Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Christopher's birth was Virgil Davila, 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, the medical records and the results of a neurological examination by Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, demonstrate, and Petitioner agrees, that Christopher does not suffer from a substantial mental or physical impairment, much less a permanent and substantial mental and physical impairment, as required for coverage under the Plan.1 (Respondent's Exhibits 1-7, Transcript page 10 and 11). Consequently, the claim is not compensable, and it is unnecessary to resolve whether Christopher's impairments resulted from brain injury caused by birth trauma (oxygen deprivation or mechanical injury), as advocated by Petitioner, or whether they are developmentally based, as advocated by Respondent.
The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. 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 notice was accorded the patient, as contemplated by Section 766.16, Florida Statutes (Supp. 1998), 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 (Supp. 1998), or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Juanita Ruiz and Miguel Angel Ruiz, are the natural parents and guardians of Michael A. Ruiz, a minor. Michael was born a live infant on August 14, 1998, at Jackson North Maternity Center, a hospital located in Dade County, Florida, and his birth weight exceeded 2,500 grams. Among the physicians providing obstetrical services at Michael's birth were Paul Norris, M.D., and Bel Barker, 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 (1997).2 When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain . . . of a live infant weighing at least 2,500 grams at birth 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(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Michael suffered severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, the claim is compensable, and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When it has been resolved that a claim qualifies for coverage under the Plan, 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, provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . . 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. 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 this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $190.65 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $10,580.33, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. 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, 29 Fla. L. Weekly D1982b (Fla. 1st DCA August 30, 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 (Supp. 1998), 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)][3] or when notice is not practicable. Pertinent to this case, Section 395.002(9)(b), Florida Statutes (Supp. 1998), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. 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. (Petitioners' Exhibit 15, the NICA brochure, "This brochure is prepared in accordance with the mandate of § 766.316, Florida Statutes.") Findings related to the hospital and notice Pertinent to the hospital and the notice issue, the proof demonstrates that on Wednesday, July 22, 1998, Mrs. Ruiz, accompanied by her husband, presented for pre-registration at Jackson North Maternity Center, a hospital owned and operated by the Public Health Trust of Dade County at 14701 Northwest 27th Avenue, Opa Locka, Florida. At the time, consistent with established practice, Mrs. Ruiz was interviewed by a health service representative, and asked to provide pertinent personal and financial information for herself and her husband, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, so the service representative could complete a number of forms. At this time, the service representative also entered pertinent data regarding the Ruizes in the hospital computer data base. During the interview process, four or six forms were routinely completed, depending on whether the patient had commercial coverage, in which case four forms were completed, or whether the patient desired to apply for Medicaid, in which case six forms were completed. (Petitioners' Exhibit 6, pages 24-29 and Petitioners' Exhibit 5, pages 18 and 20). According to the proof, the first form was referred to as "Chronological notes," on which the service representative noted the need for any additional information or follow-up, and is not pertinent to this case. The second, third, and fourth forms that were completed in all cases, were the Application for Credit (on which the service representative noted the personal and financial information provided for the patient and her guarantor, here, Mr. Ruiz, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, and to which the patient and her guarantor attested by signing), the Indigent Income Attestation form (on which the service representative noted the gross family income for the past 12 months, as disclosed by the patient, and to which the patient and her guarantor attested by signing), and the Patient Funding Source form (on which the patient and her spouse attested that they had no other source of funding, other than that disclosed on the insurance benefits worksheet). (Petitioners' Exhibit 6, pages 24-29 and PHT's Exhibit 1, Exhibits 5-7). If the patient wished to apply for Medicaid, the service representative completed a Referral to Medicaid for the patient's signature (form five) and gave the patient an Application for Medicaid (form six) to complete and sign.4 Here, there is no compelling proof that Mrs. Ruiz chose to apply for Medicaid at pre-registration. Indeed, the only forms she signed at pre-registration, that are of record, are the Application for Credit, Indigent Attestation form, and Patient Funding Source form, and the only Medicaid Assistance Referral form of record was dated August 14, 1998, following Michael's birth. (PHT's Exhibit 1, Exhibits 5-7 and 9, and Petitioners' Exhibit 5, pages 18-22). Following completion of the interview process, Mrs. Ruiz was given three pamphlets, an Advance Directives brochure (a pamphlet that explained the living will), a NICA brochure, in Spanish, titled "Peace of Mind for an Unexpected Problem,"5 and a Patient's Bill of Rights brochure. According to the proof, the pamphlets were stapled together, with the Advance Directives brochure, being the longest, on the bottom, followed by the NICA brochure, which was a little smaller, and then the Patient's Bill of Rights brochure, which was the smallest, on top. As configured, all three brochures were visible when presented or held. Contemporaneously, Mrs. Ruiz was asked to sign a form acknowledging receipt of the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). That form provided, as follows: He recibido el folleto intitulado "Tranquilidad Mental" preparado por la Asociacion de Compensaciones por Lestones Neurologicas Relacionadas con el Nacimiento, del Estado de la Florida (Florida Birth- Related Neurological Injury Compensation Association). Firma del Paciente Fecha: Testigo: Mrs. Ruiz signed the form, acknowledging receipt of the NICA brochure, and the service representative witnessed and dated the form.6 Thereafter, the service representative provided Mrs. Ruiz with a gift package for expectant mothers, and the pre- registration process was completed. In all, pre-registration typically took 10 to 15 minutes to complete. Findings related to the participating physicians and notice Pertinent to the participating physicians and the notice issue, the proof demonstrates that the participating physicians in this case (Doctors Paul Norris and Bel Barker) held appointments as full-time members of the faculty at the University of Miami, with the rank of assistant professors of clinical obstetrics and gynecology, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. (Petitioners' Exhibits 13 and 14, and PHT's Exhibits 4 and 5). Among the terms of their agreement with the Public Health Trust, Doctors Norris and Barker, as attending physicians in the resident physician training program, agreed To supervise medical care to patients provided by resident physicians to regularly review the medical charges of these patients. To supervise the completion of medical records by residents physicians. Of note, at all times material hereto, Doctor Norris was the medical director of Jackson North Maternity Center and, together with Dr. Barker and others, an attending physician in the Public Health Trust's resident training program at the facility. Regarding Michael's birth, the proof demonstrates that at or about 4:00 p.m., August 13, 1998, with the fetus at term, Mrs. Ruiz presented to Jackson North Maternity Center, in labor. Following an initial assessment, Mrs. Ruiz was examined by Wayne McCreath, a physician in the resident training program, who noted the cervix at 2 centimeters dilation, effacement at 90 percent, and the fetus at -1 station, and regular uterine contractions every 3 minutes. Membranes were noted to have ruptured spontaneously at 3:00 a.m. Dr. McCreath's impression was intrauterine pregnancy, at 39+ weeks gestation, in labor, and he proposed to admit Mrs. Ruiz to labor and delivery. Dr. McCreath's assessment and proposal to admit Mrs. Ruiz was reviewed by Dr. Norris, the attending physician at the time, and approved. Dr. McCreath continued to provide medical care for Mrs. Ruiz, under the supervision of Dr. Norris, until the 7:00 p.m., shift change, when Dr. Barker assumed the duties of attending (supervising) physician, and some time thereafter George Butler, another physician in the resident training program, was noted to be providing medical care. Ultimately, at 6:01 a.m., August 14, 1998, Michael was delivered by cesarean section, due to arrest in descent and a nonreassuring fetal heart rate pattern. The operating report names Dr. Barker as the attending surgeon and Dr. Butler as a resident surgeon. Notably, with regard to the notice issue, neither Doctor Norris nor Doctor Barker provided NICA notice to Mrs. Ruiz at or following her admission of August 13, 1998, and the only notice she received was that provided by the hospital at pre- registration. Resolution of the notice issue, with regard to the hospital Petitioners do not dispute that the hospital provided Mrs. Ruiz with a copy of the NICA brochure at pre-registration or that she signed the form acknowledging receipt of the brochure. Rather, they contend, first, that Mrs. Ruiz did not receive notice because she never read the documents she signed or the NICA brochure, and that her failure to read the documents or NICA brochure was reasonable or excusable given that, in their opinion, the procedure the hospital employed to secure her signature and deliver the brochure was not adequate to alert her to their significance. Second, Petitioners contend that neither the acknowledgment form nor the brochure was sufficient, for reasons hereafter addressed, to satisfy the hospital's notice obligation under the Plan. To support their first contention, Petitioners offered the testimony of Mrs. Ruiz who, to support Petitioners' contention that her failure to read the documents she signed and the NICA brochure she received was reasonable, observed that the service representative (Machele Lockhart Wadley) simply flipped the bottom up of each page she wanted Mrs. Ruiz to sign, never gave Mrs. Ruiz time to read before signing, never gave Mrs. Ruiz the documents to read before signing or told her to read before signing, and never told Mrs. Ruiz the documents were of any legal significance. Moreover, as for the NICA brochure, Mrs. Ruiz observed that, at the time, she was of the opinion it was simply another baby advertisement, and of no significance. Considering the proof, Petitioners' first contention, and the testimony of Mrs. Ruiz that was offered to support it, must be rejected for a number of reasons. First, given the routine nature of pre-registration and the passage of time since it occurred, it is unlikely that Mrs. Ruiz would have any specific recollection of the events that transpired at the time. Moreover, given the limited number of forms Mrs. Ruiz signed during the interview process, discussed supra, and the fact that her husband also signed as guarantor or spouse, it is also unlikely that the process was hurried or that Mrs. Ruiz was seriously deprived of an opportunity to read the forms or the NICA brochure had she chosen to do so. Finally, and most pertinent to the notice issue, Mrs. Ruiz acknowledged in her testimony that, while she did not read the acknowledgment form, she was specifically advised that by signing the form she was agreeing that she received the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). Under such circumstances, and considering that the brochure was also delivered with two other pamphlets of legal significance (the Advance Directives brochure and the Patient's Bill of Rights brochure), if Mrs. Ruiz failed to accord the NICA brochure significance, her act of doing so was not reasonable. Petitioners' second contention, regarding the adequacy of notice with regard to the hospital, was premised on their view that, as worded, neither the acknowledgment form nor the NICA brochure was adequate to satisfy the notice provisions of the Plan. As for this contention, Petitioners first posit that, since the NICA brochure stated only injuries that "have occurred in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital" (emphasis added) were covered, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan because Jackson North Maternity Center was not described as a hospital in the acknowledgment form, the NICA brochure, the facility signage, or otherwise. Petitioners also posit that, because neither the acknowledgment form nor the NICA brochure states that Jackson North Maternity Center has participating physicians on its staff, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan. Here, Petitioners' second contention must also be rejected. First, Petitioners have stipulated that Jackson North Maternity Center is a hospital, as that terms is used in the Plan, and there is no evidence of record that Mrs. Ruiz suffered any confusion over Jackson North Maternity Center's status as a hospital. Second, there is no requirement under the notice provisions of Section 766.316, Florida Statutes, for the hospital to advise patients that it has participating physicians on staff. Rather, such is presumed if notice is given, and the obligation to disclose their participating status rests with the physician. Resolution of the notice issue, with regard to the participating physicians With regard to the participating physicians, it is undisputed that Mrs. Ruiz was never given notice by Doctors Norris and Barker that they were participating physicians in the Plan, and that the only NICA notice she received was that provided by the hospital at pre-registration, which failed to identify any physician associated with the hospital, or reveal their status as participating physicians.7 Nevertheless, it was the position of Intervenors that the acknowledgment form signed by Mrs. Ruiz at pre-registration, and delivery of the NICA brochure, satisfied the notice provisions of the Plan for the hospital, as well as the participating physicians. Alternatively, the Intervenors were of the view that the participating physicians were not required to give notice, since Mrs. Ruiz presented to the hospital on August 13, 1998, with an "emergency medical condition," as defined by Section 395.002(a)(b), Florida Statutes, or the giving of notice was "not practicable." § 766.316, Fla. Stat. Given the proof, it must be resolved that Doctors Norris and Barker failed to comply with the notice provisions of the Plan. In so concluding, it is noticed that Intervenors' contention that the giving of notice by the hospital also satisfied the participating physicians' independent obligation to give notice must be rejected as lacking a rational basis in fact or, stated otherwise, any compelling proof that a patient, similarly situated as Mrs. Ruiz, would reasonably conclude, from the hospital's notice, that notice was also given on behalf of Doctors Norris and Barker. Notably, the acknowledgment form signed by Mrs. Ruiz at pre-registration did not reveal that it was also given on behalf of any physician associated with the hospital and did not reveal that any physician associated with the hospital was a participating physician in the Plan. Under such circumstances, the giving of notice by the hospital could not satisfy the participating physicians' independent obligation to provide notice.8 With regard to the Intervenors' contention that the giving of notice was not required or was not practicable, it is noted that, while the Legislature clearly expressed its intention in Section 766.316, Florida Statutes, that notice was not required when a patient presented with an "emergency medical condition," the Legislature did not absolve a health care provider from the obligation to give notice when the opportunity was previously available. Consequently, while Doctors Norris and Barker were not required to give notice when they assumed Mrs. Ruiz's care at the hospital, because there was "evidence of the onset and persistence of uterine contractions or rupture of the membranes," they nevertheless failed to comply with the notice provisions of the Plan because, although there was a reasonable opportunity for them to do so, they failed to give Mrs. Ruiz notice at pre-registration.9 See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997); Board of Regents of the State of Florida v. Athey, 694 So. 2d 46 (Fla. 1st DCA 1997); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188 (Fla. 1st DCA 2002); Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995).
The Issue Whether obstetrical services were delivered by a participating physician in the course of labor and delivery. If so, whether notice was accorded the patient as contemplated by Section 766.316, Florida Statutes.1
Findings Of Fact Fundamental findings Petitioner, Lisa Gilcreast, is the mother and natural guardian of Kara Gilcreast, a minor. Kara was born a live infant on May 28, 2000, at Bayfront Medical Center, Inc. (Bayfront Medical Center), a hospital located in St. Petersburg, Pinellas County, Florida, and her birth weight exceeded 2,500 grams. Coverage under the Plan A claim is compensable under the Plan when it can be shown, more likely than not, that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes. See also Section 766.309(1), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Kara sustained a "birth- related neurological injury," as that term is defined by Section 766.302(2), Florida Statutes. What remains in dispute is whether obstetrical services were rendered by a "participating physician" at birth. The "participating physician" issue Section 766.302(7), Florida Statutes, defines the term "participating physician," as used in the Plan, to mean: . . . a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred . . . . And, Section 766.314(4)(c), Florida Statutes, describes the circumstances under which a resident physician, assistant resident physician, or intern may be deemed a participating physician without payment of the assessment otherwise required for participation in the Plan, as follows: . . . if the physician is either a resident physician, assistant resident physician, or intern in an approved postgraduate training program, as defined by the Board of Medicine or the Board of Osteopathic Medicine by rule, and is supervised by a physician who is participating in the plan, such resident physician, assistant resident physician, or intern is deemed to be a participating physician without the payment of the assessment Supervision shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features . . . . (Emphasis added) Pertinent to this case, the proof demonstrates that the physicians providing obstetrical services during the course of Kara's birth were resident physicians3 in Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology.4 The proof further demonstrates that during that time, Dr. Karen Raimer, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan (Plan), was the supervising physician, and that she was in the hospital and easily available (by beeper or overhead page through the hospital operator) to consult with or assist the residents if they requested. However, Dr. Raimer was never called by the residents, and she did not provide any obstetrical services during the course of Ms. Gilcreast's labor or Kara's birth.5 As heretofore noted, "supervision," as defined by Section 766.314(4)(c), Florida Statutes, "require[s] that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised . . . physician may carry out in the absence of any complicating features." Here, while the supervising physician was easily available, there was no compelling proof that "the supervising physician . . . [had] a prearranged plan for treatment of specified patient problems which the supervised . . . physician . . . [could] carry out in the absence of any complicating features" (the prearranged plan for treatment). Consequently, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. In reaching such conclusion, Dr. Raimer's testimony regarding the residency program at Bayfront Medical Center, as well as her perceptions on the existence of a prearranged plan of treatment, has been considered. In this regard, it is noted that Dr. Raimer's role as supervising physician, or attending physician as it was known in the residency program, was to be available if the residents had any questions or concerns regarding patient care, and if her assistance was not requested, as it was not in this case, she did not involve herself in the labor and delivery. Under such circumstances, as is the practice in the residency program, the residents are left to manage the patient's care, with the more senior resident supervising the more junior. As for resident supervision in this case, Dr. Raimer offered the following observations: Q: And so [w]as . . . [Dr. Marler] the person for the shift on Sunday, May 28, 2000, who was responsible for the supervision of the other residents? . . . [A]s far as I remember, Dr. Marler was the chief resident on that day, the fourth-year. Q. Is there any resident that's higher than the chief resident? A. No. Q. So if he's there - A. Then he was responsible. * * * Q. So he was responsible to supervise the senior residents, the third-year residents, the second-year residents, and the first-year residents; is that correct? A. That's correct. Q. And you relied upon him to do that? A. Yes. [Joint Exhibit 2, pages 50 and 51] As for a preexisting plan of treatment, Dr. Raimer offered the following observations: Q. Now, in May 2000, did you have any prearranged plan of treatment for specified patient problems which the resident may carry out in the absence of any complicating features? All of the residents in their training as they go through the four years, it’s a cumulative knowledge base and experience base that develops. And by the time that they get through their fourth year and about to graduate and get to that point, if they are a fourth-year, we feel that they are competent in knowing how to manage cases that have complicating features, and if not, they can call their attending physician. * * * . . . [Again], residents during their training are expected to learn how to manage patients throughout their four years of experience. And, again, by the time they get to their fourth year, they are expected to know how to manage patients on an obstetrical unit and manage complicating features. If there is any concern or any question, they are to call their attending physician. [Joint Exhibit 2, pages 47 and 48] From Dr. Raimer's testimony, it is apparent that, unless requested to do so, the supervising physician does not participate in the preparation of a plan of treatment. Rather, it is customary, as was done in the instant case, for the chief resident to develop the plan. Therefore, as heretofore noted, the resident physicians and intern who provided obstetrical services during Kara's birth were not exempt from payment of the assessment required for participation in the Plan, and were not "participating physician[s]," as that term is defined by the Plan. The notice issue Pertinent to the notice issue, the proof demonstrates that Ms. Gilcreast received her prenatal care at Bayfront Women's & Children's Health Center (the Clinic), an outpatient facility established by Bayfront Medical Center to provide obstetrical services to lower income families in mid-Pinellas County, and located at 7995 66th Street, North, Pinellas Park, Florida. Staffing at the facility included faculty of, and residents participating in, Bayfront Medical Center's postgraduate residency program in obstetrics and gynecology, as well as two perinatologists and three nurse midwives, all of whom were employed by Bayfront Medical Center.6 Notably, at her first visit to the Clinic, Ms. Gilcreast (age 18, with her first pregnancy) met with Cynthia McNulty, a patient representative, for a new patient orientation. During that orientation, which lasted from 45 minutes to 1 hour, Ms. McNulty addressed a number of matters with Ms. Gilcreast, including financial matters (Florida Medicaid), Healthy Start (for which Ms. Gilcreast filled out an application), W.I.C. (a nutritional counseling program and monthly food check program), the prenatal care plan she could expect at the clinic, and who to contact in case of emergency. Ms. McNulty also provided Ms. Gilcreast with an American Baby Basket packet (which contained parenting and educational materials, as well as samples of baby products), magazines for parenting and breast feeding, and scheduled her next appointment. Finally, at some point during the orientation, Ms. McNulty showed Ms. Gilcreast a brochure titled "Peace of Mind for an Unexpected Problem."7 That brochure, prepared by NICA,8 contains a concise explanation of the patient's rights and limitations under the Plan; however, Ms. McNulty described the brochure as a . . . $100,000 . . . insurance policy, that . . . [if] the baby was neurologically injured . . . the parents would collect $100,000, and any further questions they could call the association, . . . [at] the number . . . on the back, or talk to the physicians. [Transcript, pages 68 and 69.] Copies of all the papers they discussed, including the NICA brochure, were placed in the American Baby Basket packet, a clear plastic bag, by Ms. McNulty and given to Ms. Gilcreast. Subsequently, Ms. Gilcreast discarded many of the materials she received during the orientation, and there is no proof of record that would lead one to conclude that she read the NICA brochure or was otherwise informed of its actual contents.
The Issue The issues in this case are: (1) For the purposes of determining compensability, whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital; and (2) Whether notice was accorded the patient, as contemplated by section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an emergency medical condition, as defined in section 395.002(8)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact While living in Puerto Rico, Ms. Rivera became pregnant. She had some prenatal care in Puerto Rico prior to moving to Florida in approximately August 2009. She had no prenatal care after coming to Florida until she presented at Osceola on October 21, 2009. In 2009, Osceola contracted with OB Hospitalists Group, LLC (OB Hospitalists), for hospital-based physicians for the provision and management of health care for Osceola's unassigned and emergent obstetrics and gynecology patients. The physicians provided by OB Hospitalists rotated so that a physician from OB Hospitalists was at Osceola at all times. Obstetric patients who did not have an obstetrician and presented to Osceola for obstetrical care would be seen by one of the physicians from OB Hospitalists. Although an obstetrical patient may see one physician from OB Hospitalists during a visit to the emergency room, the patient may see another physician from OB Hospitalists on another visit. The contract between OB Hospitalists and Osceola provided that OB Hospitalists and its representatives were providing services pursuant to the contract as independent contractors and not as "employees, agents, partners of, or joint ventures with" the hospital. The contract also provided that OB Hospitalists would provided medical malpractice coverage for the physicians it provided to Osceola. OB Hospitalists contracted with physicians to provide the services required under the agreement between Osceola and OB Hospitalists. Among the physicians who contracted with OB Hospitalists to provide services to Osceola were Dr. Maki and Dr. Ojeda. OB Hospitalists required its physicians to participate in the NICA Plan and paid their annual assessments for participation in the NICA Plan. In October and November 2009, Dr. Maki provided hospital-based physician services at Osceola pursuant to the contract between Osceola and OB Hospitalists. During this time, he was a participating physician in the NICA Plan, and his assessment was paid by OB Hospitalists. He was a physician licensed in Florida and was practicing obstetrics on a full-time basis. Osceola is a licensed hospital in Florida as evidenced by its license numbers listed on the Hospital Assessment and Record and Admittance form, Joint Exhibit 31, J0925. Osceola paid its 2009 assessment for the NICA Plan. Ms. Rivera, whose primary language is Spanish, presented at the Osceola emergency room on October 21, 2009, complaining of abdominal cramping. She was accompanied by her mother, Jeanette Rivera. A security guard, who spoke Spanish, translated Ms. Rivera's communications to the hospital secretary on duty. Ms. Rivera filled out a sign-in sheet for emergency services upon arrival at the hospital. The form requested that she state her name, address, social security number, telephone number, date of birth, and reason for the visit. Ms. Rivera wrote her name and address on the form. The security guard placed Ms. Rivera in a wheelchair and wheeled her to the nurses' station, where he left her. The triage nurse note on the sign-in sheet indicated that Ms. Rivera had no known allergies and had been taking prenatal vitamins. Ms. Rivera was seen by Dr. Maki on her visit on October 21, 2009, but he did not admit her to the hospital. She was discharged with nurse's instructions, which were in Spanish. Sari Falcon was an out-patient registrar employed by Osceola who was on duty on October 21, 2009, and registered Ms. Rivera. As an out-patient registrar, it was Ms. Falcon's responsibility to collect demographic information, to get the patients to sign the condition of admission form, to verify insurance, and to schedule, if necessary. Ms. Falcon's family is from Puerto Rico, and she is fluent in Spanish, which is her first language. Although Ms. Falcon does specifically remember registering Ms. Rivera, Ms. Falcon has certain practices to which she adheres during the registration process. One of her practices is to converse in Spanish with patients who speak only Spanish. If the patient is an obstetric patient whose pregnancy is over 20 weeks, Ms. Falcon takes the patient to the labor and delivery department to complete the registration process. Ms. Falcon's initial registration of an obstetrical patient occurs during one interaction/transaction, and all pages are reviewed, signed, and witnessed by her during that single transaction. One of her duties is to prepare a registration form or face sheet which contains demographic and other information about the patient. She verifies the information on the registration form with the patient. The registration form for Ms. Rivera indicated that Ms. Rivera was unemployed, that her insurance was in the form of Medicaid, her last menstrual cycle was February 9, 2009, and that she did not have a primary or family physician. The form shows that the person registering Ms. Rivera is Ms. Falcon. On October 21, 2009, Ms. Rivera signed the Conditions of Admission and Consent for Medical Treatment form, which Ms. Falcon presented to Ms. Rivera. Ms. Rivera also initialed a part of the form, indicating that she was given the opportunity to read and ask questions about the information on the form and that she either had no questions or her questions had been answered. Ms. Rivera also initialed the form indicating that she did not have an executed Advance Directive and did not desire to execute one. By her initials, Ms. Rivera also acknowledged that she had received a copy of the hospital's Notice of Privacy Practices. Ms. Falcon signed the Conditions of Admission and Consent for Medical Treatment, indicating that she had witnessed Ms. Rivera signing the form. When Ms. Falcon presents the consent form to a patient, she goes over the information on the form with the patient prior to the patient signing the form. If the patient speaks only Spanish, Ms. Falcon goes over the material in Spanish. She explains the part of the form, which requires the patient to indicate by initialing the appropriate box, whether the patient has an Advance Directive, does not have an Advance Directive and would like to get information on Advance Directives, or does not have an Advance Directive and does not wish to execute one. Another of Ms. Falcon's responsibilities is to give the obstetric patients she registers a copy of the brochure prepared by the Association (NICA brochure). If the patient speaks only Spanish, Ms. Falcon would provide a copy of the NICA brochure which is written in Spanish. Ms. Falcon explains to the patient what the NICA brochure is. Ms. Falcon has the patient sign an acknowledgment form in Ms. Falcon's presence, showing the patient received the NICA brochure. Ms. Rivera executed an acknowledgment form dated October 21, 2009. The form, which is written in English, states: I acknowledge that I have received the Florida Birth Related Neurological Injury Compensation Plan brochure. I acknowledge and understand that I may contact the Florida Birth Related Neurological Compensation Association about the details of the plan at 1-800-398-2129. Ms. Rivera printed her name on the line which had "Print Name" underneath it and signed her name on "Signature" line underneath it. Dr. Maki does not speak English. He did not give Ms. Rivera a NICA brochure on October 21, 2009, and did not advise Ms. Rivera that he was a participating physician in the NICA Plan. Additionally, Ms. Rivera was not advised on October 21, 2009, that any of the obstetric physicians which OB Hospitalists provided to Osceola were participating physicians in the NICA Plan. Ms. Rivera's testimony concerning her October 21, 2009, visit to Osceola is not credible. There are many inconsistencies in Ms. Rivera's testimony, and some of Ms. Rivera's testimony is contradicted by her own mother, who was present at all times during the October 21, 2009, visit. Ms. Rivera stated that the only person who spoke Spanish to her at the hospital, aside from her mother, was the security guard. She also testified that she did not speak, read, or understand English on October 21, 2009. However, she contradicted herself when she testified that she knew what "name" and "address" meant in English because she learned that in school. Ms. Rivera also said that she was able to understand the words "print name" and "signature" because she had signed forms written in English in Puerto Rico with similar requirements. In her deposition, Ms. Rivera's mother testified that a female nurse spoke to them in Spanish after Ms. Rivera was told that she would be discharged and that another nurse came in with some documents for Ms. Rivera to sign. In her deposition, Ms. Rivera testified that the doctor gave her the Conditions of Admission and Consent to Treat form for her to sign, showed her where to initial the appropriate boxes, and said, "Sign and this is to have your baby." At the final hearing, Ms. Rivera changed her testimony and testified that Ms. Falcon gave her the form and told her where to sign and initial. At the final hearing, Ms. Rivera testified that on October 21, 2009, Dr. Maki gave her the acknowledgement form to sign indicating that she had received the NICA brochure and told her where to print her name and where to sign her name. Ms. Rivera's mother testified that Ms. Rivera did not sign any documents in the presence of the doctor and that the doctor only examined Ms. Rivera. In her deposition, Ms. Rivera denied receiving discharge instructions in Spanish and denied signing the discharge instructions. At the final hearing, Ms. Rivera acknowledged that she received the discharge instructions at her October 21, 2009, visit and that she signed the discharge documents. An interpreter was present at the depositions of both Ms. Rivera and her mother and translated from English to Spanish and from Spanish to English for their benefit. An interpreter was also present at the final hearing and translated from English to Spanish and from Spanish to English for their testimonies. Much of the information that is contained on the Registration Form, Joint Exhibit 1, J0003, would require that it be communicated to someone at the hospital. Information such as Ms. Rivera's mother's name and address, the employment status of Ms. Rivera, the date of Ms. Rivera's last menstrual period, and the lack of a primary care or family physician could only have come from Ms. Rivera or her mother, who speaks only Spanish. This information was not contained on the sign-in sheet that Ms. Rivera filled out with the help of the security guard. There is also information that is contained on the OB Triage form that had to have been communicated by Ms. Rivera to the staff at the hospital. Such information includes whether Ms. Rivera had certain allergies, the time of the day that Ms. Rivera's cramping began, pain of three on the pain scale, use of prenatal vitamins, and her level of education. The OB Triage form also stated that Ms. Rivera's primary language was Spanish and that an interpreter would be needed. There is no reason for the triage nurse to make up this information. Ms. Falcon always follows the procedure discussed above when registering obstetric patients, which is the same procedure outlined in Osceola's printed policies. There is no dispute that she speaks fluent Spanish, and there would be no logical reason that she would not speak Spanish to a patient who speaks only Spanish, particularly in a hospital with a 90 percent population of Spanish-speaking patients. Additionally, Ms. Falcon signed the Conditions of Admissions and Consent to Treatment form, as a witness to Ms. Rivera's signature. Ms. Rivera signed the form acknowledging that she received the NICA brochure. The greater weight of the evidence establishes that Ms. Rivera did receive a NICA brochure from Ms. Falcon on October 21, 2009; Ms. Falcon explained in Spanish to Ms. Rivera about the NICA brochure; and Ms. Falcon had Ms. Rivera sign a form acknowledging her receipt of the NICA brochure. On November 4, 2009, Ms. Rivera again presented to the Osceola emergency room at 9:40 a.m., complaining of abdominal cramps "all night long" and leakage of clear vaginal fluid since 9:00 a.m. The OB Triage note stated that Ms. Rivera was having moderate contractions every two to three minutes with a duration of 30 to 50 seconds. Dr. Maki admitted her to the hospital at 2:40 p.m. At 6:06 p.m., Dr. Maki artificially ruptured Ms. Rivera's membranes. Dr. Maki did not advise Ms. Rivera on November 4, 2009, that he was a participating physician in the NICA Plan and did not provide Ms. Rivera with a NICA brochure. After Dr. Maki's shift ended, Dr. Ojeda took over the care of Ms. Rivera. Dr. Ojeda, a licensed physician in Florida, was also an independent contractor with OB Hospitalists. On November 4, 2009, he was a participating physician in the NICA Plan and was practicing obstetrics on a full-time basis. His NICA assessment for 2009 was paid by OB Hospitalists. Dr. Ojeda arrived at Osceola on November 4, 2009, at 7:15 p.m., and first came in contact with Ms. Rivera at 7:26 p.m. At that time Ms. Rivera's membranes had been ruptured, her contractions were coming every one to two minutes, and the duration of the contractions was 60 seconds. Dr. Ojeda did a vaginal examination and reviewed the fetal heart rate tracings. According to Ms. Rivera's mother, when Dr. Ojeda first saw Ms. Rivera, the baby's hair was visible in the birth canal. Petitioner's expert, Berto Lopez, M.D., was of the opinion that at the time that Dr. Ojeda first saw Ms. Rivera, that it was not an appropriate time to transfer Ms. Rivera to another hospital and a new obstetrician. Dr. Ojeda speaks Spanish. When he first met Ms. Rivera, he advised her that he was a participating physician in the NICA plan, and gave her a NICA brochure in Spanish. He regularly keeps NICA brochures with him when he is on duty. Dr. Ojeda noted in the physician's progress notes that he informed Ms. Rivera at 7:40 p.m., that he was an active member of the NICA Plan. When Ms. Rivera came to Osceola on November 4, 2009, a fetal monitor was attached to her to monitor the heart rate of the baby. A normal fetal heart rate is between 120 and 160 beats per minute. Kevin's baseline fetal heart rate was 150 beats per minute. A little after 10:00 a.m., the fetal heart strip registered a variable deceleration of Kevin's heart rate that went down to 90 beats per minute. At approximately 2:14 p.m., the heart decelerated to about 75 beats per minute, which was followed by another deceleration to about 60 beats per minute at 2:19 p.m. From approximately 2:20 p.m., until 8:06 p.m., Kevin experienced small fetal heart rate decelerations, which evidenced an overall poor fetal heart rate variability. At approximately 8:06 p.m., Kevin's heart rate decelerated to about 60 beats per minute and then returned quickly to baseline. Decelerations continued, and at approximately 8:44 p.m., the variable fetal heart rate decelerations became severe and consistent. At this point, Kevin suffered oxygen deprivation. At 9:27 p.m., Dr. Ojeda delivered Kevin. He weighed 3,290 grams. At the time of birth, Kevin had poor muscle tone, no cry, and no respiratory effort and required three minutes of positive pressure ventilation with bag and mask. His Apgar scores at one, five, and ten minutes were two, five, and seven, respectively. At birth the umbilical cord ph was 7.05, which demonstrated that Kevin had acidosis at time of delivery. Acidosis is a sign of oxygen deprivation. After delivery, Kevin was taken to the nursery, at which time the post-delivery resuscitation had ended. His color was pale. Dr. Medina was notified of the delivery and status of Kevin. Dr. Medina ordered laboratory work to be done. About an hour after delivery, blood was drawn. Kevin had a platelet count of 117,000, which is low. Kevin was bathed while in the nursery. Around midnight of November 5, 2009, attempts were made to feed Kevin, and he did not tolerate feeding. At this time, the nurse noted that Kevin had odd movements, his left arm was straight, and his hand was in a tight fist. He had a facial grimace with his mouth slanting to the right side. At 12:23 a.m., the nurse noted that Kevin continued to have odd movements to the right side with arm straightening and fist clenched. His head was turned to the right side. He had a facial grimace with a droop to the right side, and his eyes were turned upward to the right side. His oxygen saturation was down to 82 percent. Dr. Medina, who was notified of Kevin's condition, ordered a consult. No evidence was presented to establish that Dr. Medina or J. Rapha Medical, P.A., provided obstetric services to Ms. Rivera. It was not established that Dr. Medina was a participating physician in the NICA Plan or that J. Rapha Medical, P.A., participated in the NICA Plan. No evidence was presented that either Dr. Medina or J. Rapha Medical, P.A., gave notice they participated in the NICA Plan. Dr. Pera, a neonatologist, was called on consult. Neither Dr. Pera nor Pediatrix rendered any obstetric services to Ms. Rivera. The evidence did not establish that Dr. Pera or Pediatrix participated in the NICA Plan or that they gave notice to Ms. Rivera that they participated in the NICA Plan. At 12:35 p.m., Kevin was admitted to the neonatal intensive care unit, pursuant to orders from Dr. Pera. Kevin moved with both arms straightened and fist clenched. His eyes turned upward to the right side, and his mouth drooped to the right side. These symptoms are indicative of a seizure. His oxygen saturation dropped to the mid 70's. Orders were given for Phenobarbital, which was administered at 2:50 a.m. Kevin was transferred to the Winnie Palmer Hospital for Women and Babies (Winnie Palmer) at 6:45 a.m. Diagnostic studies were done at Winnie Palmer, which showed that Kevin had suffered from oxygen deprivation. The EEG was abnormal; MRI's showed multiple intracranial hemorrhages and a progression to diffuse cystic encephalomalacia; and CAT scans showed intracranial hemorrhage with enlarged ventricles and cystic encephalomalacia. Petitioner retained Robert Cullen, Jr., M.D. (Dr. Cullen), as an expert witness, and Respondent retained Dr. Donald Willis, M.D. (Dr. Willis), and Raymond Fernandez, M.D. (Dr. Fernandez), as expert witnesses. All doctors agree that Kevin sustained a brain injury during labor and delivery due to oxygen deprivation. Dr. Cullen believes that the brain injury, which occurred during labor and delivery, was a significant injury and that Kevin sustained a separate significant brain injury around midnight to 12:30 a.m., on November 5, 2009. He is of the opinion that Kevin's impairment is a result of the combination of the two injuries, and he cannot apportion the impairment between the two injuries. Dr. Cullen bases his opinion that a second injury occurred because Kevin had stabilized by the time that he was placed in the nursery and the seizure activity started over two hours after oxygen deprivation was sustained during labor and delivery. However, Dr. Cullen concedes that an infant may not always show symptoms of a permanent and substantial impairment within three hours of birth. Dr. Fernandez, Respondent's expert pediatric neurologist, opined that Kevin suffered brain injury during labor and delivery and that a brief period of stability after resuscitation is not unusual. He stated: [I]t's not uncommon at all for a baby to then stabilize for a period of time even after sustaining severe injury. There's sort of a period of time when people look pretty good after brain injury; that doesn't last too long. It might last minutes to hours, two or three or four hours, and then decline begins to occur. There are progressive changes that take place that mount gradually and eventually instability recurs, so that period of relative stability or stability immediately after initial resuscitation is not unusual. Dr. Fernandez's testimony is credited. Dr. Willis is of the opinion that the seizure episode that began around midnight to 12:30 a.m., on November 5, 2009, was a manifestation of the brain injury that was sustained during labor and delivery and that the seizure episode was not a separate injury from the oxygen deprivation which occurred during labor and delivery. His opinion is based on the severe and consistent variable heart rate decelerations that Kevin experienced intrapartum; the Apgar scores after birth; the poor respiratory effort after birth requiring positive pressure ventilation with a mask and bag; the low platelet count of 117,000 after delivery; and the low ph of 7.05 of the umbilical cord, indicating acidosis at the time of delivery. The testimony of Dr. Willis is credited. The greater weight of the evidence establishes that Kevin sustained an injury to his brain during labor and delivery due to oxygen deprivation and the seizures and brain hemorrhage after birth were a manifestation or continuation of the early injury and not a separate brain injury. The brain injury sustained during labor and delivery resulted in substantial and permanent mental and physical impairment to Kevin. Dr. Fernandez, was the expert retained by Respondent to opine on Kevin's impairments. Dr. Fernandez opined that Kevin has mental and physical impairments, which are both substantial and permanent. He described Kevin's condition at the time Kevin was examined by Dr. Fernandez on January 18, 2012, as follows: He's virtually non-interactive, responds very little to sound, but otherwise does not interact. He does not speak. I don't think that he has any understanding of language. He has very poor motor control. His head circumference, his brain is very small and there is cystic change within his brain and that's highly predictive of permanent impairment.
The Issue Whether notice was accorded the patient, as contemplated by section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an emergency medical condition, as defined in section 395.002(8), or the giving of notice was not practicable.
Findings Of Fact On April 8, 2014, at approximately 7:33 a.m., Petitioner, Priscilla Franco, presented to Fisherman’s Community Hospital (Fisherman’s) in Marathon, Florida. At the time, she was 33 weeks and 6 days pregnant. Her primary complaint at Fisherman’s was abdominal pain. It was noted that her lower abdominal pain was sharp and had begun at 4:00 a.m. At 7:40 a.m., her pain was noted to be a 5 out of 10 on a 10-point pain scale. At 7:51 a.m., Ms. Franco was diagnosed at Fisherman’s with “active labor, premature.”1/ As Fisherman’s does not have obstetrical services available, a transfer was initiated. At approximately 8:45 a.m., Sabrya Ishoof, M.D., accepted the transfer of Ms. Franco to South Miami. Dr. Ishoof is a self-employed obstetrician/gynecologist. At all times relevant to this proceeding, she held staff privileges at South Miami. On April 8, 2014, she was called in to treat Ms. Franco as the on-call emergency obstetrician. Prior to this date, Dr. Ishoof and Petitioner did not have a physician- patient relationship for obstetrical services. Similarly, Ms. Franco did not have such a relationship with South Miami. At approximately 9:54 a.m., Ms. Franco was transported via helicopter provided by Lifenet from Fisherman’s to South Miami, where she arrived at approximately 11:15 a.m. Upon arrival, Ms. Franco was taken to the antepartum unit, where she was initially assessed and examined by Carmen Davis, R.N., and Melissa Luna, R.N. The initial assessments included, inter alia, placing an external fetal monitor on Ms. Franco and performing a vaginal examination. The vaginal examination revealed that Ms. Franco’s cervix was 3 cm dialated and had thinned to 60 percent effacement. At approximately 11:37, Nurse Luna documented that Ms. Franco was having uterine contractions, lasting 30 to 60 seconds. The contractions resulted in cramping abdominal pain. The pain was described as a 5-6 on the 10-point pain scale. At 11:38 a.m., this assessment was communicated to Dr. Ishoof. Two minutes later, Dr. Ishoof issued her Admission Order, wherein she admitted Ms. Franco to the antepartum unit and ordered magnesium, antibiotics, insulin, as well as an ultrasound. The decision to admit Ms. Franco was based upon the following: Ms. Franco’s prior history of a preterm Cesarean delivery, cervical dilation, and uterine contractions--being in active labor. At 12:06 p.m., Nurse Luna documented that Ms. Franco was having uterine contractions lasting 50 to 60 seconds. At 12:13 p.m., Nurse Davis contacted Dr. Ishoof regarding the external fetal monitoring interpretation, the contraction pattern, pain assessment, and interventions performed. Nurse Davis, at approximately 12:14 p.m., proceeded with admission paperwork with Ms. Franco. A packet of information was provided to Ms. Franco, which, inter alia, included a NICA brochure, entitled “A Peace of Mind for an Unexpected Problem,” and a form acknowledging receipt of the brochure, entitled “Notice to Obstetric Patient.” The notice language, which is contained on a document bearing the label for South Miami, provides as follows: NOTICE TO OBSTETRIC PATIENT I have been furnished information by the hospital prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that my doctor may be 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), P.O. Box 14567, Tallahassee, Florida 32317-4567, (800) 398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. Nurse Davis credibly testified that, while she does not have a specific recollection of Ms. Franco, her routine practice was to provide the NICA brochure and notice acknowledging receipt to her patients upon admission. Specifically, Nurse Davis testified that she would provide the documents and request the patient to sign the same. Nurse Davis would then sign the document acknowledging the patient’s signature and receipt. In this matter, Ms. Franco’s signature appears under the above- referenced notice. The document further bears the signature of Nurse Davis as a witness to Ms. Franco’s signature. While Ms. Franco testified that she did not receive the NICA brochure, Ms. Franco’s testimony on this fact is not credited. The better evidence establishes that Ms. Franco was provided the NICA brochure as described by Nurse Davis and acknowledged by Ms. Franco’s signature. At 12:34 p.m., Dr. Ishoof ordered Ms. Franco to be prepared for a Cesarean section delivery. Dallas was delivered at 1:51 p.m. It is undisputed that Dr. Ishoof was the physician providing obstetric services at Dallas’s birth. The evidence established that Dr. Ishoof was a Plan-participating physician at that time. The evidence further established that South Miami was a Plan-participating hospital at the time of Dallas’s birth.
