Findings Of Fact Jaliyah was born on March 7, 2017, at Lakeland Regional Medical Center. With respect to Jaliyah’s birth, obstetrical services were delivered by Maria Martino, M.D., a NICA participating physician, in the course of labor, delivery, or resuscitation in the immediate postdelivery period. NICA retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Jaliyah’s medical records and opine as to whether there was an injury to her brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In his report and subsequent affidavit (attached to NICA’s Motion), Dr. Willis opines that “there was an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post deliver [sic] period. The oxygen deprivation resulted in brain injury.” NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Jaliyah’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether she suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Petitioner, and conducted an IME of Jaliyah on December 13, 2017. Dr. Sigurdardottir’s affidavit, attached to NICA’s Motion, provides in pertinent part, as follows: Based upon my education, training and experience, it is my professional opinion, within a reasonable degree of medical probability that although there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury, Jaliyah is not found to have substantial delays in motor and mental abilities. Her prognosis for full motor and mental recovery is excellent and her life expectancy is full. A review of the file reveals that no contrary evidence was presented to refute the findings and opinions of Dr. Willis and Dr. Sigurdardottir. Their unrefuted opinions are credited.
Findings Of Fact The Petition named Dr. Brooks as the physician providing obstetric services at Elijah’s birth on October 10, 2012. Attached to the Motion for Summary Final Order is an affidavit of NICA's custodian of records, Tim Daughtry, attesting to the following, which has not been refuted: One of my official duties as Custodian of Records is to maintain NICA’s official records relative to the status of physicians as participating physicians in the Florida Birth-Related Neurological Compensation Plan who have timely paid the Five Thousand Dollar ($5,000.00) assessment prescribed in Section 766.314(4)(c), Florida Statutes, and the status of physicians who may be exempt from payment of the Five Thousand Dollar ($5,000.00) assessment pursuant to Section 766.314(4)(c), Florida Statutes. Further, I maintain NICA's official records with respect to the payment of the Two Hundred Fifty Dollar ($250.00) assessment required by Section 766.314(4)(b)1., Florida Statutes, by all non-participating, non-exempt physicians. * * * As payments of the requisite assessments are received, NICA compiles data in the “NICA CARES” database for each physician. The “NICA CARES physician payment history/report” attached hereto for Jeffrey B. Brooks, M.D., indicates that in the year 2012, the year in which Dr. Brooks participated in the delivery of Elijah Kearney, as indicated in the Petitioner’s [sic] Petition for Benefits, Dr. Brooks did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan. Further, it is NICA’s policy that if a physician falls within the exemption from payment of the Five Thousand Dollar ($5,000) assessment due to their status as a resident physician, assistant resident physician or intern as provided in Section 766.314(4)(c), Florida Statutes, annual documentation as to such exempt status is required to be provided to NICA. NICA has no records with respect to Dr. Brooks in relation to an exempt status for the year 2012. The physician payment history/report for Dr. Brooks supports Mr. Daughtry’s affidavit. Petitioners have not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. Brooks had not paid his $5,000 assessment for 2012. At the time of the birth of Elijah, Dr. Brooks was not a participating physician in the Plan.
The Issue At issue is whether Gavin Leonard John Chattic (Gavin), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact By their Joint Stipulation of Facts, the parties have agreed that: On October 24, 2007, the Petitioners as parents and natural guardians of Gavin Leonard John Chattic ("Gavin"), a minor, filed a claim with the Division of Administrative Hearings ("DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the "Plan"). Such Petition is fully incorporated herein by reference. Gavin was born on October 30, 2006, at Lakeland Regional Medical Center. Corey Leonard Chattic and Christine Lorraine Chattic, currently of 7415 Loblolly Avenue, Lakeland, Florida 33810, are the parents and natural guardians of the infant. Jennifer Mignon Nixon, M.D., whose address is 1733 Lakeland Hills Boulevard, Lakeland, Florida 33805, provided obstetrical services during the delivery of Gavin. Jennifer Mignon Nixon, M.D., is a participating physician as defined in Section 766.302(7), Florida Statutes. The Parties stipulate that the attached medical records from Lakeland Regional Medical Center are true and correct copies of the medical records kept in the normal course of business. The Parties stipulate that, at birth, the infant, Gavin, weighed 754 grams . . . . The medical records attached to the parties' Joint Stipulation of Facts reveal that Gavin was born premature, at 24 3/7 weeks' gestation, and that his birth weight was 754 grams.
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 the hospital and the participating physicians gave the patient notice, as contemplated by Section 766.16, 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 otherwise not practicable.
Findings Of Fact Findings related to compensability Jennifer Castillo and Peter Borowiak, are the natural parents and guardians of Lievens Borowiak, a minor. Lievens was born a live infant on April 18, 2001, at Jackson Memorial Hospital, a hospital owned and operated by the Public Health Trust in Miami, Dade County, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were provided during the course of Lievens' birth by Salih Y. Yasin, M.D., Mary Jo O'Sullivan, M.D., Armando Hernandez, M.D., and Victor H. Gonzales-Quintero, M.D., who, at all times material hereto, were "participating physicians" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. More particularly, Doctors Yasin, and O'Sullivan, were members of the faculty at the University of Miami, School of Medicine, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. These physicians, referred to as attending physicians, were "participating physician[s]" in the Plan, since the assessment required for participation had been paid on their behalf by the University of Miami. Doctors Hernandez and Gonzales-Quintero were "participating physician[s]," since they were residents in the Trust's postgraduate residence program in obstetrics and gynecology, and were exempt from payment of the assessment. §§ 766.302(7) and 766.313(4) and (5), Fla. Stat. 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 Lievens 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. Findings related to an award When 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 (2000),2 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. 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. * * * 3. 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. * * * 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, Jennifer Castillo and Peter Borowiak, as the parents of Lievens, be awarded $100,000.00, to be paid in lump sum, and $8,321.44 for attorney's fees ($8,000.00) and costs ($321.44) incurred in connection with the filing of the claim. § 766.31(1)(b) and (c), Fla. Stat. The parties have further agreed that no monies are owing for past expenses, and that Respondent pay future expenses as incurred. § 766.31(1)(a) and (2), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the healthcare providers' claim of Plan immunity in a pending civil action, by averring that the healthcare providers failed to comply with the notice provisions of 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, 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); Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same); and, Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Association, 30 Fla.L.Weekly D452a (Fla. 2d DCA February 16, 2005)(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. 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 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.") Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which included 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 the brochure to their obstetrical patients. (Intervenors' Exhibit 1) Here, given the provision of Section 766.316, Florida Statutes, the hospital and attending physicians (Doctors Yasin and O'Sullivan), provided they had a reasonable opportunity to do so, were required to provide pre-delivery notice. 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 a reasonable time prior to delivery."); Board of Regents v. Athey, 694 So. 2d 46, 50 (Fla. 1st DCA 1997)("[H]ealth care providers who have a reasonable opportunity to give notice and fail to give pre- delivery notice under section 766.316, will lose their NICA exclusivity . . . .). Doctors Hernandez and Gonzales-Quintero, as residents, deemed to be a participating physician under Section 766.314(4)(c), Florida Statutes, were not required to provide notice. Findings related to notice At or about 9:45 a.m., Wednesday, April 11, 2001, Ms. Castillo, aged 23, with an estimated delivery date of April 26, 2001, and the fetus at 38 weeks' gestation, presented to Jackson Memorial Hospital (JMH) on the advice of her primary care physician, as a high-risk pregnancy, secondary to cardiac dysfunction. Notably, Ms. Castillo had a history of congenital heart disease, with cardiac surgery at aged 10 for transposition of the great vessels, and a recent diagnosis of marked pulmonary hypertension and severe aortic insufficiency. Under the circumstances, Ms. Castillo's primary care physician concluded delivery at a community hospital was inadvisable, and he referred her to JMH for evaluation, as to the timing of, as well as the management of, her delivery. On presentation, Ms. Castillo was initially assessed in OB Triage. At the time, existing protocol required that, following initial assessment, "[t]he HUS/Nurse places the patient on the triage log (in the computer at JMH) and gives the 'Peace of Mind' (OB) and 'Advance Directives' brochures in their respective languages." (Petitioners' Exhibit 11) Here, the proof demonstrates that Phyllisan Goodwin, an LPN employed by the hospital, initially assessed Ms. Castillo in OB Triage, and completed the Triage Treatment Record, which documented that, consistent with existing protocol, she provided Ms. Castillo with a copy of the Advanced Directives pamphlet and the Peace of Mind (NICA) brochure. (Intervenors' Exhibits 3 and 10) At or about the same time, Nurse Goodwin gave Ms. Castillo a General Consent for Treatment form. (Intervenors' Exhibit 2) That form, insofar as Intervenors deem it pertinent to the notice issue, included the following provisions: I, the undersigned patient or Jennifer Castillo (name of authorized representative acting on behalf of patient) consent to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment of my illness(es) by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital (PHT/JMH) and the University of Miami School of Medicine, including medical students. I have been told the name of the physician who has primary responsibility for my care, as well as the names, professional status and professional relationships of other individuals who will be involved in my care. It has been explained to me that in a large teaching hospital environment like the Public Health Trust/Jackson Memorial Hospital, there may be additional or other physicians and staff involved in my care as well. The consent was signed by Ms. Castillo, and witnessed by Nurse Goodwin, at 11:32 a.m., April 11, 2001. Following triage, Ms. Castillo was admitted to the antepartum floor for further evaluation and management. There, Ms. Castillo was evaluated by Charmin Campbell, LPN, who completed the OB Nursing Admission Assessment, which included the observation that Ms. Castillo had previously received the Advanced Directives and the Peace of Mind brochures. (Intervenors' Exhibit 4) Ms. Castillo's subsequent hospital course was summarized in Dr. Yasin's Discharge Summary, as follows: The Patient was admitted for a cardiology workup in preparation for a controlled delivery. She was seen by both anesthesia and cardiology. Cardiology recommended an echocardiogram to evaluate heart function which was done and the patient was found to have sever pulmonary hypertension with moderate right ventricular dysfunction and dilatation in addition to a moderate aortic insufficiency. The patient also had an official ultrasound which showed IUGR [intrauterine growth retardation] . . . . After long consultation with both anesthesia and cardiology the plan was made on April 13th to induce the patient in a controlled setting on [Monday] April 16th. It was felt that the patient would benefit from a central line and that she would deliver on the labor floor, because with the IUGR should the patient need a cesarean section it could potentially be stat, and a better outcome would be ensured by delivering the patient on the labor floor as opposed to the cardiac care unit. The patient while on antepartum had daily NST'S [nonstress tests]. She was followed closely both by cardiology and anesthesia. On April 16th the patient went to the labor floor for an induction. The induction continued and the patient delivered on April 18th. It was a baby boy with Apgar scores of 2 4 5. The infant weighed 2,641 grams. The delivery was vacuum assisted secondary to poor maternal effort, and it was noted that there was a tight nuchal cord times one. Both anesthesia and cardiology were present at the delivery. Postpartum the patient went to the cardiac care unit for close monitoring. The following day she was sent to the normal postpartum floor. The patient was doing incredibly well. She was asymptomatic. No shortness of breath. She had no chest pain. She was ambulating without difficulty. She was discharged home on postpartum day number two. (Petitioners' Exhibit 5A, page 004.) See also Petitioners' Exhibit 5A, pages 024-027, Dr. Yasin's progress note of April 13, 2001, and Petitioners' Exhibit 5A, pages 093-095, Dr. Yasin's Vaginal Delivery Record. Notably, during the 5 days that preceded induction of labor, Ms. Castillo was continuously monitored by hospital staff; underwent numerous evaluations, by cardiology, radiology, and anesthesiology, among others; and was called upon to sign a number of forms, in addition to the General Consent for Treatment form discussed supra, including: an Advance Directives Checklist, on April 11, 2001; a Consent to Operations or Procedures for a chest x-ray, at 5:00 p.m., April 11, 2001; a Release of Liability for Loss of Personal Property, at 12:45 a.m., April 12, 2001; a Consent Form for sterilization, on April 13, 2001; a Consent to Operations or Procedures for the delivery of her child, at 6:30 a.m., April 16, 2001; and, a Consent to Operation or Procedures for a chest x-ray, at 10:50 a.m., April 16, 2001. (Petitioners' Exhibit 5B) Moreover, the record reveals that during that 5-day period, Doctors Yasin and O'Sullivan, the attending physicians, provided obstetrical services to Ms. Castillo on numerous occasions; on April 16, 2001, Dr. Yasin supervised Ms. Castillo's induction; and on April 18, 2001, Dr. Yasin delivered Lievens. Consequently, the hospital and the attending physicians had numerous opportunities to provide notice to Ms. Castillo. It is also notable that, on presentation to JMH at 9:45 a.m., April 11, 2001, Ms. Castillo was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after 11:55 a.m., April 16, 2001, when labor was induced, with Petocin. More particularly, there was no "evidence of the onset and persistence of uterine contractions[3] or rupture of the membranes[4]" until after her labor was induced. Moreover, there was no proof that, upon admission or until her labor was induced, "there was inadequate time to effect safe transfer to another hospital prior to delivery" or "[t]hat a transfer may pose a threat to the health and safety of the patient or fetus." Consequently, until some time after 11:55 a.m., April 16, 2001, some 5 days after she presented to the hospital, Ms. Castillo did not have an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, that would have excused the giving of notice. Moreover, there was no proof to support a conclusion that the giving of notice was not practicable. Resolution of the notice issue, with regard to the hospital With regard to the hospital and the notice issue, the more persuasive evidence supports the conclusion that, more likely than not, Nurse Goodwin, consistent with established practice, provided Ms. Castillo a copy of the NICA brochure in OB Triage. In so concluding, it is noted that the giving of notice in OB Triage was an established protocol (Petitioners' Exhibit 11); the Triage Treatment Record prepared by Nurse Goodwin documented that the NICA brochure was provided (Intervenors' Exhibit 3); except for the entry regarding the NICA brochure, Ms. Castillo acknowledged the information Nurse Goodwin entered in the Triage Treatment Record was accurate (Intervenors' Exhibit 7, pages 52-53); it is unlikely, given such consistency, Nurse Goodwin would not have also provided Ms. Castillo with the NICA brochure; and Ms. Castillo's possession of the NICA brochure, following OB Triage, was confirmed by Nurse Campbell on the Nursing Assessment Record, when Ms. Castillo was admitted to the antepartum floor (Intervenors' Exhibit 4). Consequently, the proof compels the conclusion that the hospital complied with the notice provisions of the Plan. Resolution of the notice issue, with regard to the attending-participating physicians With regard to the attending physicians and the notice issue, it is undisputed that the attending physicians never provided notice, and relied on the hospital to provide notice on their behalf.5 Therefore, to demonstrate compliance, Intervenors posit that, "under the circumstances of this case," the notice the hospital provided was sufficient to satisfy both its notice obligation, and that of the attending physicians. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraph B) The "circumstances" were stated to be, as follows: Upon presenting at the OB Triage, Ms. Castillo was provided an English- language NICA Peace of Mind brochure by Phyllisan Goodwin, LPN, who electronically notated Ms. Castillo's chart on the triage treatment record to that effect. At or about the same time that she received the NICA brochure, Ms. Castillo signed an English-language General Consent for Treatment form, wherein Ms. Castillo consented to undergo all necessary tests, medication, treatments and other procedures in the course of the study, diagnosis and treatment by the medial staff and other agents and/or employees of the Public Health Trust/Jackson Memorial Hospital and the University of Miami School of Medicine. (Intervenors' Amended Joint Pre-Hearing Stipulation, paragraphs E10 and 11). Given such "circumstances," Intervenors contend that a patient, similarly situated as Ms. Castillo, would reasonably conclude from the delivery of the NICA brochure and the General Consent for Treatment form, that the brochure was given on behalf of the hospital and the attending physicians. (Hospital Proposed Final Order, paragraph 18) However, Intervenors do not suggest, and the proof does not support a conclusion that, the notice also disclosed, or compelled a conclusion that, the attending physicians were "participating physician[s]" in the Plan. Here, contrary to Intervenors' contention, it must be resolved that the notice provided by the hospital did not satisfy the attending physicians' obligation. In so concluding, it is noted that the General Consent for Treatment form is clearly unrelated to NICA notice, and the duality of purpose Intervenors contend the brochure was intended to serve, as notice for the hospital and the participating physicians, was not communicated to the patient. Moreover, a reading of the brochure would not, absent speculation, lead one to believe the brochure was also given on behalf of the physicians, and the brochure did not inform the patient that any physician was a "participating physician" in the Plan. Indeed, the brochure simply stated: You are eligible for this protection if your doctor is a participating physician in the Association. Membership means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. (Emphasis added) Consequently, although joint notice may have been the intention of the hospital, and the expectation of the attending physicians, the notice provided was inadequate to achieve that purpose.6
The Issue Whether Cameron Johnson (Cameron), 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 suit for medical malpractice associated with Cameron's birth against the treating obstetricians, the obstetrical clinic, and the hospital, bars Petitioners from receiving an award of Plan benefits.
Findings Of Fact Findings related to compensability Mary N. Johnson and Jerome Johnson are the natural parents of Cameron Johnson, a minor. Cameron was born a live infant on November 24, 2001, at Lakeland Regional Medical Center, a "hospital" as defined by Section 766.302(6), Florida Statutes, located in Lakeland, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were provided during Cameron's birth by Jeffrey M. Barrett, M.D., and James B. Mammel, 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. At the time, Doctors Barrett and Mammel were employees of Watson Clinic, LLP. 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 the 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 Cameron suffered a 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. Consequently, the proof demonstrates that Cameron suffered a "birth-related neurological injury," and 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 civil suit On October 20, 2004, Mary N. Johnson and Jeromie Johnson, individually and as parents and next friends of Cameron Johnson, a minor child, filed a complaint sounding in medical malpractice against Jeffrey M. Barrett, M.D., James B. Mammel, M.D., Watson Clinic, LLP, Unknown Nurses, c/o Lakeland Regional Medical Center, and Lakeland Regional Medical Center for acts or omissions during Mrs. Johnson's labor and delivery, which resulted in Cameron's brain injury and profound neurologic impairment, in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, Case No. 2004CA-853 Section 11. (Exhibit B). The settlement with Lakeland Regional Medical Center A settlement was reached in the civil suit with Lakeland Regional Medical Center for an undisclosed amount in excess of $25,000. (Stipulation of Facts, para. 15). That settlement was approved by court order of November 10, 2005. (Stipulation of Facts, para. 14; Exhibit E). The General Release and Settlement Agreement executed by Petitioners' in favor of Lakeland Regional Medical Center on November 21, 2005, provided in pertinent part: For and in consideration of [amount redacted] the Releasing Parties [Petitioners] . . . release, acquit and forever discharge the Released Party [Lakeland Regional Medical Center] . . . from any and all claims, actions, causes of action, demands, obligations, liens, rights, damages, costs, loss of service, expense and/or compensation, of any nature whatsoever which the Releasing Party now has or which may hereafter accrue to the Releasing Party on account of, or in any way growing out of, any and all known or unknown, foreseen and unforeseen, injuries and/or damages and the consequences thereof, including wrongful death, resulting from the incident which occurred during Mary Johnson's admission of November 23, 2001 at Lakeland Regional Medical Center, and which has resulted in a claim and/or lawsuit for physical injuries and damages and being brought by the Releasing Parties against the Released Party, as more fully described in the Complaint styled Mary N. Johnson and Jeromie Johnson, individually and as Parent and Next Friends of Cameron Johnson, a minor child v. Jeffrey M. Barrett, M.D., James B. Mammell, M.D., Watson Clinic LLP, Unknown Nurses c/o Lakeland Regional Medical Center, Inc., a Florida Corporation and Lakeland Regional Medical Center, Inc., a Florida Corporation, filed in the Court of the Tenth Judicial Circuit, in and for Polk County, Florida being Case Number 2004CA-853. Furthermore, notwithstanding any of the foregoing provisions of this Release, it is expressly understood and agreed that nothing herein shall be construed to release, remise, or discharge anyone other than the specific parties named in this Release for this specific incident described. No other medical malpractice claim or NICA claim, which may stem or flow from the injuries suffered in the incident described herein is released. This Release is limited to the parties disclosed herein and the parties expressly deny that this Release is intended to release any other parties beyond the scope of this incident or document. It is the specific intent of the parties not to release Jeffrey M. Barrett, M.D., James B. Mammell, M.D., or Watson Clinic, LLP. Nothing contained herein is intended by the parties to his General Release and Settlement Agreement to be an election of remedies or release of any NICA claim or medical malpractice claim that the Releasing Parties may have as a result of the incidents surrounding the birth of the minor child, Cameron Johnson, other than a release of the NICA claim Cameron Johnson may have against the Released Parties. Specifically, the parties hereto acknowledge that the NICA claim, if any, of Cameron Johnson against Drs. Mammell, Barrett and the Watson Clinic LLP shall survive the execution of this General Release and Settlement Agreement. (Exhibit F). Thereafter, given the consummation of the settlement agreement, and on the parties' joint stipulation, the court dismissed the case against Lakeland Regional Medical Center with prejudice, by order of January 18, 2006. (Exhibit L). However, the case remained pending against Doctors Barrett and Mammel, and Watson Clinic, LLP. The claim for NICA benefits and settlement with Dr. Barrett and Watson Clinic, LLP After an order abating the civil suit against the remaining defendants was issued, Petitioners filed the subject Petition for Benefits on November 13, 2006, to resolve whether the claim was compensable and, if so, for an award. The petition included the statement that in Petitioners' view "NICA does not apply, but [they] have been Court ordered to apply for NICA pending Trial." However, Petitioners' recovery in the civil action against Lakeland Regional Medical Center was not disclosed. (Stipulation of Facts, para. 18, 19, and 20; Exhibit G). By letter dated February 26, 2007, NICA advised the parties that it agreed Cameron suffered a birth-related neurological injury, and that it was prepared to provide benefits as specified in Section 766.31, Florida Statutes. (Exhibit H). However, Petitioners persisted in their view that the claim was not compensable, and also advanced the view that the participating physicians failed to comply with the notice provisions of the Plan. Consequently, a hearing was scheduled for July 25 and 26, 2007, to address the issues of compensability and notice, and NICA's proposal to accept the claim for compensation was never presented to the administrative law judge for approval. § 766.305(7), Fla. Stat. ("Any claim which the association determines to be compensable may be accepted for compensation provided that the acceptance is approved by the administrative law judge to whom the claim for compensation is assigned."). The parties' Stipulation of Facts describes the events that ensued shortly before hearing, as follows: On July 13, 2007, the office of counsel for Intervenors advised the office of counsel for Respondent that they had settled with Petitioners. On July 13, 2007, the office of counsel for Intervenors advised the office of counsel for Respondent that only the civil action had been resolved, but the NICA claim was still proceeding. By letter dated July 13, 2007, both counsel for Intervenors and Petitioner's counsel advised the Court [ALJ] and counsel for NICA that neither the civil action nor the NICA action had been resolved. A copy of Petitioners' and Intervenors' counsels' letters dated July 13, 2007 are [marked] as Exhibit "J". * * * On July 23, 2007, Petitioners placed a proceeding on the Circuit Court calendar to approve a proposed settlement of the civil court matter against the remaining defendants. A copy of the Circuit Court docket is [marked] as Exhibit "L". By letter dated July 24, 2007, counsel for Petitioners advised the court [ALJ] and all parties that they had withdrawn their objection to NICA's applicability. A copy of this letter is [marked] as Exhibit "M". * * * 38. By letter [dated] July 24, 2007, counsel for Respondent advised the Court [ALJ] and all parties that consistent with Petitioners' Counsel's letter dated July 24, 2007, NICA had accepted the claim as compensable and was prepared to provide benefits consistent with Ms. Shipley's February 2007 letter. This letter also advised the court [ALJ] that the stipulation would be held pending the resolution of Petitioners' Counsel's fee and costs for inclusion in the stipulation. A copy of the letter is [marked] as Exhibit "N". Under the circumstances, the hearing scheduled for July 25 and 26, 2007, was cancelled. While the stipulation was held pending resolution of issues related to attorney's fees and costs, Petitioners, without notice to Respondent, resolved the civil action for an undisclosed sum against Doctors Barrett and Mammel, and the Watson Clinic, LLP. The parties' Stipulation of Facts describes those events, as follows: On July 25, 2007, Petitioner filed a Notice of Voluntary Dismissal with prejudice in the Circuit Court proceeding against James B. Mammel, M.D. A copy of the Notice of Voluntary Dismissal is [marked] as Exhibit "O". By order dated July 25, 2007, the Circuit Court approved the settlement of the action against the remaining defendants [Dr. Barrett and Watson Clinic, LLP]. A copy of the Order approving the settlement is [marked] as Exhibit "P". * * * 42. On July 26, 2007, Petitioners executed General Releases and Settlement Agreements in favor of the remaining defendants in the Circuit Court proceeding. A copy of the General Release and Settlement Agreement is [marked] as Exhibit "R". (Settlement amount is redacted). The Release executed by Petitioners on July 26, 2007, provided in part: FOR THE CONSIDERATION of [amount redacted] . . . and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned [Petitioners] . . . do hereby release and forever discharge: JEFFREY M. BARRETT, M.D., WATSON CLINIC LLP and TIG INSURANCE COMPANY, jointly and severally, . . . from any and all claims, demands, damages, costs, loss of services, expenses, expense and compensation, actions, causes of action, or suits of whatsoever kind or nature, whether arising at law or in equity, which the undersigned may have had, may now have, or may hereafter have against the said Releasees because of matters, causes, happenings or things occurring prior to the date of this Release, including any and all damages of any kind, known or unknown, or to result hereafter from including but not limited to, any and all treatment or care of MARY N. JOHNSON by JEFFREY M. BARRETT, M.D. and WATSON CLINIC LLP, and all of their agents, employees, shareholders, partners and associates thereof; and including but not limited to those matters that are the subject of the following described lawsuit: Mary N. Johnson and Jeromie Johnson, individually and as parents and next friends of Cameron Johnson, a minor child, Plaintiffs, vs. Jeffrey M. Barrett, M.D., James B. Mammel, M.D., Watson Clinic LLP, Unknown Nurses c/o Lakeland Regional Medical Center, Inc., a Florida corporation, and Lakeland Regional Medical Center, Inc., a Florida corporation, Defendants, Case No. 2004-CA-853, filed in Circuit Court in and for Polk County, Florida . . . . * * * Nothing herein shall be construed as to operate as a waiver or release or abandonment of any claims or rights the undersigned may have as to NICA benefits for the undersigned. More specifically, the parties agree that Mary Johnson and Jeromie Johnson, on behalf of their minor child, Cameron Johnson, and on their individual behalf, have been granted the benefits of NICA pursuant to Florida Law. A copy of the letter providing such benefits is attached hereto and incorporated herein by reference. Despite acceptance by NICA, Mary Johnson and Jeromie Johnson, individually and as parents of Cameron Johnson, have contended that such benefits from NICA are not applicable to the claim raised. Releasees have contended that NICA benefits are the sole source of compensation available to Releasors. Both Releasors and Releasees acknowledge and agree that the issue of whether or not NICA benefits are the sole remedy of Releasors in this case is disputed between them. Further, both Releasors and Releasees agree that, regardless of whether the NICA benefits provide an exclusive remedy or not for the claims at issue between them, Releasees are voluntarily providing to the Releasors the monetary considerations set forth above. Releasees agree that they shall never contend that acceptance of Releasors by NICA or payment of NICA benefits to Releasors preclude payment of the sums mentioned above and Releasees agree that such monetary considerations shall be paid to Releasors in addition to any NICA benefits provided to Releasors. Releasees understand that they have the right to contend that, if NICA applies, no monies could be owed to the Releasors above and beyond NICA benefits. Because of reasons personal to Releasees, however, Releasees are knowingly and with the advice of independent counsel available to them, forever waiving the right to make any such contentions. Releasees are providing the monetary sums set forth above, despite denying the merits of Releasors' claims, in addition to NICA benefits freely, voluntarily and knowlingly. (Exhibit R). The parties' Stipulation of Facts chronicles subsequent events, as follows: On July 31, 2007, counsel for NICA sent to counsel for Petitioners and Intervenors via email a proposed Joint Stipulation stipulating to the compensability of the Petition for benefits. The Joint Stipulation contained affirmative representations by Petitioners, including that they had not received a recovery under a settlement or final judgment in a civil action against any person or entity directly involved with the labor, delivery or immediate post delivery resuscitation with respect to the "injury" sustained by Cameron Johnson. (A copy of the Stipulation is [marked] as Exhibit "S"). On August 1, 2007, counsel for Petitioners and Intervenors advised counsel for Respondent that the Petitioners settled the medical malpractice action against Drs. Mammel and Barrett and the Watson Clinic. On August 1, 2007, counsel for Petitioners and Intervenors did not advise counsel for Respondent that Petitioners had settled the medical malpractice action against Lakeland Regional Medical Center. By letter dated August 2, 2007, counsel for Respondent advised counsel for Petitioners and Intervenors that pursuant to Section 766.304, Florida Statutes, the tort recovery precluded an award of benefits and advised NICA was unable to pay benefits in this case. A copy of the letter is [marked] as Exhibit "T". Notably, prior to August 1, 2007, NICA was not shown to have had any knowledge of any settlements in the civil action, or to have been a party or participant in that proceeding.
