The Issue The issue to be determined is whether Caroline Rondon, the child of Yanela Pena and Carlos Frances Rondon-Silva, suffered a birth-related neurological injury as that term is defined in section 766.302(2), compensable by the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Based on a review of the Petition, the Motion for Summary Final Order, and the Exhibits attached thereto, the relevant facts for determination of this case are as follows: Caroline was born on March 30, 2020, at Shands Lake Shore. She was a child born of single gestation and weighed 4,233 grams. NICA retained Donald C. Willis, M.D., as a medical expert specializing in maternal-fetal medicine. NICA submitted his expert report dated April 21, 2020, with its Response to Petition for Benefits, and with the Motion for Summary Final Order. Dr. Willis concluded, based on his review of the medical records, that while the infant had some degree of oxygen deprivation at birth, there were no findings of HIE (hypoxic-ischemic encephalopathy) seen on an MRI, suggesting that the birth-related oxygen deprivation did not result in identifiable brain injury. He further opined that the MRI’s findings of leukomalacia are more likely related to an event remote from birth. NICA also retained Raj P. Sheth, M.D., as an expert in pediatric neurology. Dr. Sheth reviewed the records and examined Caroline. His report was also submitted as an exhibit to the Response to Petition for Benefits and the Motion for Summary Final Order. In that report, Dr. Sheth stated in part: In SUMMARY, Caroline’s neurological examination reveals … delays mainly in personal social, and language areas. She showed no spasticity and no increased tone. She was able to walk without toe walking. Her problems appear mainly in the area of personal social interaction with features that would be suggestive of autism. … Given the above findings would suggest that she complete her evaluation for autism which the mother reports is scheduled for August 2020. Further evaluation with genetic consultation may also be useful. Her findings do not suggest cerebral palsy as a diagnosis. She appears to have sensory integration difficulties, language difficulties and personal social interaction difficulties. As such she would not meet the criteria for persistent and significant neurologic injury as a result of mechanical or perinatal trauma to the brain or spinal cord. The parties do not dispute the conclusions of Dr. Willis and Dr. Sheth. Based on the evidence presented in support of the motion, Caroline is not eligible for compensation under the Plan because the evidence does not support a finding that she suffers from both mental and physical impairments, or that there is an identifiable brain injury related to labor, delivery, or resuscitation in the immediate postdelivery period.
Findings Of Fact Based on all available evidence, the undersigned makes the following findings of fact. Mateo was born on July 10, 2019, at the Hospital located in Orlando, Florida. Petitioner filed the Petition with DOAH on August 28, 2019. DOAH then served a copy of the Petition on NICA on September 17, 2019. In reviewing the claim, NICA obtained medical records regarding Mateo’s birth. The medical records document that Mateo’s weight at birth was 2,365 grams. A review of the medical records submitted in this matter reveals no evidence disputing a finding that Mateo weighed under 2,500 grams at his delivery at the Hospital. Based on the evidence that Mateo weighed less than 2,500 grams at birth, NICA determined that Petitioner’s claim was not compensable. NICA subsequently filed a Motion for Summary Final Order asserting that Mateo did not suffer a “birth-related neurological injury” as defined by section 766.302(2).
The Issue Whether notice was accorded the patient, as contemplated by section 766.316, Florida Statutes (2018).1/
Findings Of Fact Based upon the demeanor and credibility of the witnesses, other evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made: Petitioners, Cathy Pierre and Jodens Pierre, are the parents and natural guardians of Jadon Pierre. Jadon was born at Good Samaritan, a licensed Florida hospital, in West Palm Beach, Florida, on January 26, 2015. The physician providing obstetric services at the time of birth was Joy Cavalaris, M.D. The circumstances of the labor, delivery, and birth of the minor child are reflected in the medical records of Good Samaritan submitted with the Petition. Jadon suffered from oxygen deprivation during the course of labor and delivery, and in the immediate post-delivery resuscitative period, as determined pursuant to the undersigned’s October 27, 2017, Partial Summary Final Order. Jadon is substantially and permanently mentally and physically impaired, as determined pursuant to the undersigned's October 27, 2017, Partial Summary Final Order. Intervenors, Good Samaritan, Palm Beach OBGYN, and Joy Cavalaris, M.D., are NICA participants. Good Samaritan's Compliance with NICA Notice Requirements Cathy Pierre presented on three occasions to Good Samaritan in 2015. Her first visit to Good Samaritan was on January 12, 2015, at 6:00 p.m., to attend a Special Deliveries Unit Tour. A sign-in sheet maintained by Kathy Wegner, R.N., Good Samaritan lactation nurse, indicates that the tour began at 6:00 p.m. The first name of expectant moms on the sign-in sheet is Cathy Pierre. Included on the sign-in sheet is Cathy Pierre’s due date (January 18, 2015), her email address, and her physician. At the motion hearing held on July 11, 2018, the parties stipulated that Cathy Pierre attended no other prenatal tour other than the one conducted on January 12, 2015. The parties also stipulated that Cathy Pierre did not pre-register for her delivery at the January 12, 2015, prenatal tour. Although guests on the tour are provided with the option of filling out pre-registration forms to be submitted to Ms. Wegner, no such forms were submitted by Cathy Pierre. At 6:00 p.m., the admitting department at Good Samaritan is closed, and Cathy Pierre would not have been able to register via computer during the January 12, 2015, tour. Although Cathy Pierre testified that she presented to Good Samaritan for a tour and pre-registration in December 2014, the Special Deliveries Unit Tour sign-in sheet conclusively establishes that Cathy Pierre presented for her tour on January 12, 2015. Cathy Pierre presented no evidence that she pre- registered at the time of her tour. The evidence, and the stipulations of the parties, conclusively establish that Cathy Pierre did not pre-register for her delivery at the time of her tour on January 12, 2015. As expressly stipulated to by the parties: Cathy Pierre attended the prenatal tour on Monday, January 12, 2015 at 6 PM. This is the only prenatal tour attended by Cathy Pierre. Cathy Pierre did not “pre-register” for her delivery at the January 12, 2015 prenatal tour. Guests on the tour are provided with the option of filling out pre- registration forms to be submitted to Ms. Wegner, and no such forms were submitted by Cathy Pierre. At 6 PM, the admitting department is closed and Cathy Pierre would not have been able to register via computer. The greater weight of the evidence established that no provider–obstetrical patient relationship was established on January 12, 2015. Although Ms. Pierre toured the Good Samaritan facilities on January 12, 2015, the evidence of record, and the stipulation of the parties established that she did not pre- register for her delivery at that time, keeping open the possibility that she would choose a different hospital for her delivery. Cathy Pierre next presented to Good Samaritan on January 19, 2015. Ms. Pierre testified that the reason for the visit to Good Samaritan on January 19, 2015, was for a check-up. Although an ultrasound was performed on that date, Ms. Pierre states that she does not recall the same. Ms. Pierre registered as a patient at Good Samaritan for the first time during this visit. She was determined not to be in active labor at that time, but was provided with a form titled “Labor Instructions for Observation Admission” containing criteria for determining when she should return to the hospital. The registration process on January 19, 2015, was conducted by Alethia Saunders, who was employed as a Patient Access Lead with the emergency room. As part of her duties and responsibilities, Ms. Saunders handled obstetrical admissions through the emergency department when patients presented after regular business hours. As part of the admission process for obstetrical patients, Alethia Saunders would present a document entitled “Notice to Obstetrical Patient” to the patients. On January 19, 2015, Alethia Saunders presented to Cathy Pierre the Notice to Obstetrical Patient Form, printed the patient’s name on the form, and the form was signed by Ms. Pierre. The form states as follows: I have been furnished information by Good Samaritan Medical Center prepared by the Florida Birth Related Neurologic Injury Compensation Association and have been advised that the hospital participates in that program. Physicians and midwifes and their groups providing care at the Good Samaritan Medical Center are or may be participating 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 this program I understand that I can contact: Florida Birth Related Neurological Injury Compensation Association – NICA, Post Office Box 14567, Tallahassee, Florida 32317-4567, Telephone No. 850-488-8191 or Toll Free 800-398-2129. (emphasis in original). The form goes on to state that “I further acknowledge that I have received a copy of the brochure prepared by NICA.” Alethia Saunders stated that the NICA form is completed for every obstetrical patient. Ms. Saunders testified that, as part of the registration process, every patient is presented with the folder which contains the Peace of Mind Brochure from NICA, and the patient signs the Notice to Obstetrical Patient Form and then she signs the form as a witness. Cathy Pierre testified that her signature appears on the Notice to Obstetrical Patient Form dated January 19, 2015. However, Ms. Pierre testified that she could not recall reading the Notice to Obstetrical Patient Form on January 19, 2015. With respect to the NICA brochure, Cathy Pierre testified that while she recalls receiving a NICA brochure at some point, she does not recall when. The preponderance of the evidence established that Cathy Pierre was provided with information by Good Samaritan on January 19, 2015, in the form of a brochure prepared by NICA, and that Ms. Pierre signed the receipt of notice to obstetrical patient on January 19, 2015. On January 26, 2015, Ms. Pierre presented again to Good Samaritan and delivered Jadon at that time. While Ms. Pierre also received and signed a Notice to Obstetrical Patients form on January 26, 2015, it is the form dated and signed on January 19, 2015, that is relevant for the determination of whether adequate notice was provided to Ms. Pierre in this case. Notice Provided by Dr. Cavalaris and Palm Beach OBGYN: Cathy Pierre first presented to Palm Beach OBGYN on June 12, 2014, for her first prenatal visit. Ms. Pierre was seen by Dr. Lori Ann Sevald, an obstetrician/gynecologist with the Group. Dr. Sevald performed a physical examination on Ms. Pierre, finding her uterus to be enlarged, which she indicated is normal for a pregnant patient. She also ordered an ultrasound which revealed a live intrauterine pregnancy. Dr. Sevald’s routine custom and practice for each new obstetrical patient being seen at the Group’s office was for the patient to receive a copy of the Group’s four-page Obstetric Informed Consent form (consent form) and to review the entire document with the patient. Dr. Sevald indicated she would discuss genetic testing, routine testing, and provide the new obstetrical patient with an overview of what to expect during labor and delivery. Dr. Sevald stated she had no doubt, based on her customary practice, that she would have reviewed the entire consent form with Cathy Pierre. Additionally, Dr. Sevald explained she would have provided Ms. Pierre with a NICA brochure titled “Peace of Mind for An Unexpected Problem” and would have explained the program to Ms. Pierre. Dr. Sevald also signed the consent form as a witness to the patient’s signature. The aforementioned process was referenced on page four of Dr. Sevald’s History and Physical, dated June 12, 2014, which indicates “[t]he OB consent and NICA forms were reviewed, signed and copies given to the patient” and “[t]he patient was made aware that our practice participates in the Florida NICA program.” Ms. Pierre recalls going to the office of Palm Beach OBGYN in Lake Worth as a new patient and completing some paperwork when she got to the office. When questioned about the paperwork, Ms. Pierre agreed that June 12, 2014, was likely the date she first presented to Palm Beach OBGYN. Although, Ms. Pierre could not recall reviewing the four-page Obstetric Informed Consent form, she did acknowledge that her printed (maiden) name, signature and the date, which appear on page four of the consent form, were all written by her, probably on June 12, 2014. Located between her printed maiden name and signature, the consent form states as follows: I was furnished information prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), pursuant to Section 766.316, Florida Statutes, and was advised that our Doctors (Samuel Lederman, MD, Gloria Hakkarainen, MD, Sylvia Siegfried, MD, Joy Cavalaris, MD, Lori Sevald, MD, Marcela Lazo, MD and Barbara Telan, CNM) are participating physicians in that program. By participating in this program, limited compensation is available in the event that certain types of qualifying neurological injuries occurs during labor, delivery or resuscitation in the hospital. For specifics about the program, I understand that I can contact the Florida Birth-Related Neurological Injury Compensation Association (NICA), at PO Box 14567, Tallahassee, FL 32317, Tele No. 1.800.398.2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. I acknowledge that I read this form and fully understand its contents. I was given ample opportunity to ask questions and all questions were answered to my satisfaction. I also acknowledge that I was given a copy of this form so that my family and I can review its contents at home and ask questions in the future. Ms. Pierre indicated that during one of her visits to Palm Beach OBGYN she received a copy of the NICA brochure. However, she could not recall which visit. Nevertheless, she acknowledged she could have received the brochure at the time of her first visit to the Group on June 12, 2014. The greater weight of the evidence established that more likely than not, Dr. Cavalaris’ office provided Ms. Pierre with a copy of the NICA brochure during her first prenatal office visit in June 2014, when the beginning of her provider- obstetrical patient relationship began.
Findings Of Fact Based on the stipulation of Petitioners and Respondent, the following facts are found: Elizabeth Midland and Christopher Midland (Petitioners) are the parents and legal guardians of Jolee Harper Midland (Jolee), and are the “Claimants” as defined by section 766.302(3). Jolee incurred a “birth-related neurological injury” as defined in section 766.302(2), on or about January 18, 2018, which was the sole and proximate cause of Jolee’s current medical condition. At birth, Jolee weighed 2,850 grams. Stephanie Caywood, M.D., rendered obstetrical services in the delivery of Jolee and, at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7). Fort Walton Beach Medical Center is a hospital located in Fort Walton Beach, Florida, and is the “hospital” as that term is defined in section 766.302(6). Petitioners filed a petition pursuant to section 766.305, seeking compensation from the Florida Birth-Related Neurological Injury Compensation Association (NICA), and that petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
