The Issue The issue in this case is whether Wellington Regional Medical Center provided the notice required by section 766.316, Florida Statutes.
Findings Of Fact Stipulated facts At all times material, Scott and Danielle Faivus were and are husband and wife. Mrs. Favius was a patient of OB/GYN Specialists where she received prenatal care for the birth of her son, Ryder. Mrs. Faivus was given NICA notice during that care. Mrs. Favius pre-registered online with Wellington Regional in April of 2014 for her delivery. She went to the hospital July 7, 2017, for a labor check. On July 22, 2014, Mrs. Favius presented to Wellington Regional for induction of labor. Mrs. Favius signed a Receipt of Notice to Obstetric Patient on July 22, 2014, acknowledging receipt of the NICA Peace of Mind Brochure. A Caesarean section was performed and Ryder Favius was delivered. It was subsequently determined he sustained a hypoxic ischemic encephalopathy. NICA determined that this is a birth- related injury as defined by chapter 766, Florida Statutes. Respondent filed a Motion for Summary Final Order. A Partial Summary Final Order was entered on February 6, 2017, which determined that Petitioners' claim to be compensable under the NICA Plan. Facts based upon the evidence of record The maternity Pre-registration page from Wellington Regional's website instructs the patient that there are three ways to preregister: online, by mail, and in person. On April 25, 2014, Ms. Faivus accessed the online pre-registration page to preregister for her delivery. Just below the enumeration of the three methods of pre- registration, the online maternity pre-registration page in evidence contains a red exclamation point and "FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION (NICA)" written in capital letters immediately beside the exclamation point. The pre-registration page continues with the following: In order to fully process your Pre- registration, please download the NICA pamphlet and form. The form must be signed and returned to: Wellington Regional Medical Center Attn: Admitting Officer 10101 Forest Hill Boulevard Wellington, FL 33414. NICA Pamphlet NICA Consent Form The maternity pre-registration page in evidence is a screen shot of what is currently on the hospital's website. Arlene Morea, patient access director at Wellington Regional, was asked if the current maternity pre-registration page is the same as it appeared in 2014, when Mrs. Favius filled out the pre- registration form. She replied "to the best of my knowledge, yes." She further explained that other than some formatting changes, "everything is the same as far as the pre-registration," including the red exclamation point. The screen shot in evidence shows the red exclamation point immediately below the three methods of pre-registration. Mrs. Favius does not recall reviewing the instruction on the pre-registration page regarding downloading the NICA pamphlet or downloading and completing the NICA consent form. Notwithstanding, she received a REGIE registration confirmation by e-mail which thanked her for submitting the online REGIE request to Wellington Regional "where it will be processed." There is nothing on the face of the registration confirmation document that references downloading the NICA materials, or to indicate whether or not she had downloaded the pamphlet or acknowledgment form. According to Ms. Morea, it is the routine practice of Wellington Regional that when a maternity patient completes the demographics portion of the online pre-registration, the hospital mails a pre-registration packet to the patient containing a confirmation of the registration, an account number, information regarding payment and insurance benefits, the NICA acknowledgement form, a return envelope for the patient to return the acknowledgment form, the NICA "Peace of Mind" pamphlet, and information regarding different services the hospital provides, such as information on breast feeding and sibling passes. The hospital did not receive any returned mail sent to Mrs. Favius. However, there is no signed NICA acknowledgment form in Mrs. Favius' hospital record from the pre-registration process. Mrs. Favius denies receiving the pre-registration packet, or any other documents from the hospital, by mail following the submission of the online pre-registration demographic information. The registration confirmation letter does not reference NICA. Mrs. Favius confirmed that her address is the same address which is on record for her at Wellington Regional. The confirmation registration established a "visit date" of July 17, 2014, and assigned a confirmation number to Mrs. Favius. Ms. Morea explained that July 17, 2014, was the "visit date" scheduled for Mrs. Favius to go to the hospital. However, Mrs. Favius presented to Wellington Regional 10 days prior to her assigned visit date on the night of July 7, 2014, for a "labor check", because she thought she was going into labor. She went to the labor and delivery floor where she was hooked up to a fetal monitor, had a vaginal exam and an ultrasound. Mrs. Favius does not recall whether she told anyone at the hospital that she intended to deliver there. At the July 7, 2014, hospital visit, Mrs. Favius signed various documents including authorizations for financial billing and a consent to treat. There is no record of a signed NICA acknowledgment form in her file for the July 7, 2014, hospital admission. Mrs. Favius recalls signing papers but does not recall receiving copies of any paperwork during this visit and does not recall any of the discussions she had with the nurses during this visit. According to Ms. Morea, the routine practice in labor and delivery is that the NICA pamphlet and acknowledgment form are given to the patient when she arrives at the hospital either for a labor check or in labor. So, using routine practice, the patient should have received the NICA pamphlet and the acknowledgment form during the July 7, 2014, hospital visit. However, there is no NICA acknowledgment form in Mrs. Favius' hospital record for her July 7, 2014, admission. Ms. Morea noted that the NICA pamphlet could have been given to Mrs. Favius, but it was not scanned into her account. Ms. Morea's statement as to the hospital's routine practice is consistent with that of Jamie Gabbard, R.N., who worked at Wellington Regional as a labor and delivery nurse at the time of Ryder's birth. According to Nurse Gabbard, nurses would routinely give the NICA pamphlet to the maternity patient "as soon as we were able to. You know, if they were for induction, we would give it the first thing with all their consents. If they came in in labor, we would do it as soon as we could, you know." Nurse Gabbard further described the routine practice in 2014 in regard to providing NICA notice and various consent documents to patients who presented to the labor and delivery floor. That is, packets were put together which included the NICA pamphlet, the NICA acknowledgment form, and various consent forms for the patient. The nurse would present the packet to the maternity patient for signing. Mrs. Favius was admitted to the hospital on July 22, 2014, for a scheduled induction. When she arrived at labor and delivery, she was put on a monitor. The monitor indicated she was experiencing contractions of early labor, but she did not feel any contractions until Dr. Carlson ruptured her membranes a few hours after she arrived. Upon arrival at labor and delivery, Mrs. Favius signed paperwork. One of the documents she signed was the NICA acknowledgment form, although she does not recall doing so. Nurse Gabbard witnessed Mrs. Favius's signature on the NICA acknowledgment form dated July 22, 2014, which is routine practice. Nurse Gabbard's signature appears on the obstetrical consent forms signed by Mrs. Favius on July 22, 2014, and the NICA acknowledgment form. Mrs. Favius signed the form entitled Receipt of Notice to Obstetric Patient, which reads as follows: RECEIPT OF NOTICE TO OBSTETRIC PATIENT I have been furnished information in the form of a Brochure prepared by the Florida Birth- Related Neurological Injury Compensation Association (NICA), pursuant to Section 766.316, Florida Statutes, by Wellington Regional Medical Center, wherein certain limited compensation is available in the event certain types of qualifying neurological injuries may occur during labor, delivery or resuscitation in a hospital. For specifics on the program, I understand I can contact the Florida Birth-Related Neurological Injury Compensation Association, Post Office Box 14567, Tallahassee, Florida 32317-4567, (850)398-2129. I specifically acknowledge that I have received a copy of the Brochure prepared by NICA. The signed NICA acknowledgment form is not time- stamped, but the other documents in the packet which were signed by Mrs. Favius were signed around 6:30 a.m., shortly after her arrival at the hospital on July 22, 2014. Despite her signature appearing on the acknowledgement form, Mrs. Favius does not recall receiving a NICA pamphlet at the hospital on July 22, 2014, or on any other occasion. She also does not recall receiving a NICA pamplet, and signing a NICA acknowledgment form, at Dr. Carlson's office. However, she concedes that she did sign an acknowledgment form at the hospital on July 22, 2014, and at Dr. Carlson's office. It is concluded that Mrs. Favius received the NICA pamplet from Wellington Regional on July 22, 2014, shortly after she was admitted that morning, while in early labor. Petitioners have stipulated that Mrs. Favius was provided notice from Dr. Carlson and OB/GYN Specialists, despite her not remembering receiving the NICA pamphlet or signing the acknowledgment form there, although she clearly did so.
The Issue The issue to be determined is whether Aiyanna suffered a “birth-related neurological injury,” as defined in section 766.302, Florida Statutes (2015).
Findings Of Fact On March 20, 2016, the Hospital admitted Shawntel Gordon and she gave birth to a baby girl named Aiyanna on March 21, 2016. As stipulated by the parties, the medical records demonstrate that Amy Jo Gabriel, M.D. provided obstetric services relative to the birth of Aiyanna. Based on the affidavit of NICA’s records custodian, Tim Daughtry, and the official payment history attached thereto, Dr. Gabriel never paid the annual $5,000 assessment required by physicians who elect to participate in the Plan to NICA. NICA lacked any documentation from Dr. Gabriel that she was exempt from paying the $5,000 assessment as a resident physician, assistant resident physician, or intern. Rather, Dr. Gabriel paid $250 to NICA in 2016—the annual assessment for physicians who do not qualify for an exemption and nevertheless elect not to participate in the Plan.
Findings Of Fact Based on the stipulation of the parties, the following facts are found: Matthew Williams and Joy Williams (Petitioners) are the parents and natural guardians of Jesse Williams (Jesse), and are the “claimants” as defined by section 766.302(3). Jesse incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about December 26, 2018, which was the sole and proximate cause of Jesse’s injury. At birth, Jesse weighed 3,640 grams. Adrienne George, M.D., rendered obstetrical services in Jesse’s delivery, and, at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7). TMH is a hospital located in Tallahassee, Florida, and is the hospital where Jesse was born. TMH is the “hospital” as that term is defined in section 766.302(6). Jesse died on March 28, 2019. Petitioners filed a petition pursuant to section 766.305, seeking compensation from NICA, and that petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth- Related Neurological Injury Compensation Plan (Plan).
The Issue Whether Isabelle Dianderas, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Maribenny Dianderas and Arturo Dianderas are the natural parents and guardians of Isabelle Dianderas, a minor. Isabelle was born a live infant on October 8, 2002, at Florida Hospital, a hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Isabelle's birth was Natasha M. Knight, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. Here, the proof is compelling, and uncontroverted, that Isabelle suffered an injury to the brain caused by oxygen deprivation in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital that rendered her permanently and substantially mentally and physically impaired. (Joint Exhibits 1-4; Transcript, pages 125-145). Consequently, the record demonstrated that Isabelle suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The notice issue While the claim qualifies for coverage under the Plan, Petitioners would prefer to pursue their civil remedies, and avoid a claim of Plan immunity by the healthcare providers in a civil action. Therefore, Petitioners have averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at Isabelle's birth, failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth- Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.") Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied.1 The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[2] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (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 of it to their obstetrical patients. (Joint Exhibit 5). Pertinent to this case, the NICA brochure applicable to Mrs. Dianderas' prenatal care and Isabelle's birth provided: The birth of a baby is an exciting and happy time. You have every reason to expect that the birth will be normal and that both mother and child will go home healthy and happy. Unfortunately, despite the skill and dedication of doctors and hospitals, complications during birth sometimes occur. Perhaps the worst complication is one which results in damage to the newborn's nervous system - called a "neurological injury." Such an injury may be catastrophic, physically, financially and emotionally. In an effort to deal with this serious problem, the Florida Legislature, in 1988, passed a law which created a Plan that offers an alternative to lengthy malpractice litigation processes brought about when a child suffers a qualifying neurological injury at birth. The law created the Florida Birth-Related Neurological Injury Compensation Association (NICA). EXCLUSIVE REMEDY The law provides that awards under the Plan are exclusive. This means that if an injury is covered by the Plan, the child and its family are not entitled to compensation through malpractice lawsuits. CRITERIA AND COVERAGE Birth-related neurological injuries have been defined as an injury to the spinal cord or brain of a live-born infant weighing at least 2500 grams at birth. In the case of multiple gestation, the live birth weight is 2000 grams for each infant. The injury must have been caused by oxygen deprivation or mechanical injury, which occurred in the course of labor, delivery or resuscitation in the immediate post delivery period in a hospital. Only hospital births are covered. The injury must have rendered the infant permanently and substantially mentally and physically impaired. The legislation does not apply to genetic or congenital abnormalities. Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan. COMPENSATION Compensation may be provided for the following: Actual expenses for necessary and reasonable care, services, drugs, equipment, facilities and travel, excluding expenses that can be compensated by state or federal government or by private insurers. In addition, an award, not to exceed $100,000 to the infant's parents or guardians. Funeral expenses are authorized up to $1,500. Reasonable expenses for filing the claim, including attorney's fees. NICA is one of only two (2) such programs in the nation, and is devoted to managing a fund that provides compensation to parents whose child may suffer a qualifying birth-related neurological injury. The Plan takes the "No-Fault" approach for all parties involved. This means that no costly litigation is required and the parents of a child qualifying under the law who file a claim with the Division of Administrative Hearings may have all actual expenses for medical and hospital care paid by the Plan. You are eligible for this protection if your doctor is a participating physician in the NICA Plan. If your doctor is a participating physician, that 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. If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA Plan. (Joint Exhibit 5). Here, Petitioners contend the brochure prepared by NICA was insufficient to satisfy the notice provision of the Plan (which requires that the form "include a clear and concise explanation of a patient's rights and limitations under the plan"), because it failed to include an explanation of the civil remedies a patient would forego if she chose a participating provider. (Transcript, pages 11-13). However, neither Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997), the authority relied upon by Petitioners, nor the notice provision of the Plan, place such an obligation on NICA in the formulation of the brochure. In Galen, supra, the Court had for consideration the following question certified to be of great public importance: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS' INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? Id. at 308. In answer to the certified question, the Court held: . . . as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery. Id. at 309. The Court reasoned, as follows: Section 766.316 provides in pertinent part: Each hospital with a participating physician on its staff and each participating physician . . . under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth- related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. Without exception the district courts of appeal that have addressed the issue have read section 766.316 to require pre-delivery notice . . . . We agree with the district courts that the only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in the plan. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the "no-fault alternative for birth-related neurological injuries" a reasonable time prior to delivery, when practicable. Our construction of the statute is supported by its legislative history. Florida's Birth-Related Neurological Injury Compensation Plan was proposed by the 1987 Academic Task Force for Review of the Insurance and Tort Systems. In its November 6, 1987 report, the Task Force recommended adoption of a no-fault compensation plan for birth-related neurological injuries similar to the then newly enacted Virginia plan (1987 Va. Acts Ch. 540). Academic Task Force for Review of the Insurance and Tort Systems, Medical Malpractice Recommendations 31 (Nov. 6, 1987)(hereinafter Task Force Report). However, the Task Force was concerned that the Virginia legislation did not contain a notice requirement and recommended that the Florida plan contain such a requirement. The Task Force believed that notice was necessary to ensure that the plan was fair to obstetrical patients1 and to shield the plan from constitutional challenge.2 The Task Force explained in its report: The Virginia statute does not require participating physicians and hospitals to give notice to obstetrical patients that they are participating in the limited no- fault alternative for birth-related neurological injuries. The Task Force recommends that health care providers who participate under this plan should be required to provide reasonable notice to patients of their participation. This notice requirement is justified on fairness grounds and arguably may be required in order to assure that the limited no fault alternative is constitutional. Task Force Report at 34 (emphasis added). Since Florida's NICA plan was the result of the Task Force's report, it is only logical to conclude that the plan's notice requirement was included in the Florida legislation as a result of this recommendation and therefore was intended to be a condition precedent to immunity under the plan. * * * Under our reading of the statute, in order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely manner. In those cases where it is not practicable to notify the patient prior to delivery, pre- delivery notice will not be required. Whether a health care provider was in a position to give a patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis . . . . Accordingly, we answer the certified question as explained herein and approve the decision under review. Id. at 309-311. 1 The Task Force obviously believed that because not all health care providers are required to participate in the NICA plan, fairness requires that the patient be made aware that she has limited her common law remedies by choosing a participating provider. 2 The Task Force also must have recognized that failure to require notice would open the plan up to constitutional attack. For example, the Braniffs argue that if pre- delivery notice is not a condition precedent to immunity under the plan, patients will be deprived of their common law remedies without due process. However, because of our resolution of the notice issue, we need not reach the merit of this procedural due process challenge. Notably, the Court was not asked to resolve, and did not resolve, whether the obligation to provide a form that "include[d] a clear and concise explanation of a patient's rights and limitations under the plan," required an explanation of the civil remedies a patient would forego if she chose a participating provider. Moreover, the unambiguous language the Legislature chose evidences no such intention. Rather, the Plan requires that the form "include a clear ['[f]ree from doubt or confusion']3 and concise ['[e]xpressing much in few words; succinct']4 explanation ['the process of making plain or comprehensible']5 of the patients' rights and limitations under the plan," and does not include an obligation to explain a patient's potential civil remedies at common law or otherwise. Rinella v. Abifaraj, 908 So. 2d 1126, 1127 (Fla. 1st DCA 2005)("Where the plain and ordinary meaning of statutory language is unambiguous, we cannot construe the statute in a manner that would extend, modify, or limit its express terms or its reasonable and obvious implications."); Seagrave v. State, 802 So. 2d 281, 287 (Fla. 2001)(quoting Hayes v. State, 750 So. 2d 1, 4 (Fla. 1999))("[I]t is a basic principle of statutory construction that Courts 'are not at liberty to add words to statutes that are not placed there by the Legislature.'"); Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002)("When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words."); American Bankers Life Assurance Company of Florida v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)("Words of common usage should be construed in their plain and ordinary sense."). The brochure prepared by NICA satisfies the legislative mandate. Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 31 Fla. L. Weekly D8676 (Fla. 5th DCA March 24, 2006)("The ALJ properly recognized that NICA developed a pamphlet titled 'Peace of Mind for an Unexpected Problem.' The pamphlet contains a clear and concise explanation of a patient's rights and limitations under the NICA plan, as is required by the terms of the statute.")(petition for rehearing pending). Findings related to the participating physician and notice Mrs. Dianderas received her prenatal care at Loch Haven OB/GYN Group, Orlando, Florida, a group practice comprised of a number of physicians, including Natasha M. Knight, M.D., and dedicated to the practice of obstetrics and gynecology. At the time, Loch Haven, like Florida Hospital, was owned by Adventist Health System/Sunbelt, Inc.; however, patients, including Mrs. Dianderas, were not noticed, by signage or otherwise, of the relationship the business entities shared. On February 14, 2002, Mrs. Dianderas presented to Loch Haven for her initial visit. At the time, consistent with established practice for new obstetric patients, Mrs. Dianderas was given a copy of the NICA brochure, together with a Notice to Obstetric Patient (to acknowledge receipt of the NICA brochure). The Notice to Obstetric Patient provided, as follows: Notice to Obstetric Patient I have been furnished with information by the Loch Haven OB/GYN as prepared by the Florida Birth-Related Neurological Injury Compensation Association and have been advised that the physicians of the Loch Haven OB/GYN Group are participating members in the Florida Birth-Related Neurological Injury Compensation Association. This Plan provides that certain limited compensation is available in event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth-Related Neurological Injury Compensation association (NICA), Post office Box 14567, Tallahassee, Florida 32317-04567, (904) 488-8191 or 1- 800-3982129: I further acknowledge that I have received a copy of the form brochure prepared and furnished by the Florida Birth- Related Neurological Injury Compensation Association. Patient Signature Date Print Name Social Security Number D.O.B. Witness Date Mrs. Dianderas completed the form, by providing the requested information (name, social security number, and date of birth), and then signed and dated the form. Beverly Bailey, the medical assistant who saw Mrs. Dianderas on her initial visit, witnessed her signature. Here, Mrs. Dianderas acknowledges she signed the Notice to Obstetric Patient, but has no current recollection of having done so, and has no current recollection of whether she was or was not given a copy of the NICA brochure. (Transcript, pages 39-41 and 54-58). Moreover, Petitioners candidly concede, they can offer no proof to rebut the presumption that the notice provisions were met by the participating physician. (Transcript, pages 9, 55, 56, and 278). Consequently, since the NICA brochure complied with the requirements of Section 766.316, Florida Statutes, the participating physician satisfied the notice provisions of the Plan. However, notwithstanding the common ownership of Loch Haven and Florida Hospital by Adventist, they were separate business entities, and the notice by Loch Haven (on behalf of its physicians) did not satisfy Florida Hospital's obligation to give notice. § 766.316, Fla. Stat. ("Each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries."); Board of Regents v. Athey, 694 So. 2d 46, 49 (Fla. 1st DCA 1997)("Under section 766.316 . . . notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery " Conversely, it reasonably follows, notice on behalf of the participating physician will not by itself satisfy the notice requirement imposed on the hospital.) Findings related to the hospital and notice To support an inference that it complied with the notice provisions of the Plan, the hospital offered proof of the practice it followed to provide a copy of the NICA brochure and Notice to Obstetric Patient form (acknowledgment form)6 to each patient who presented to labor and delivery.7 See Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). Here, Mrs. Dianderas presented to the labor and delivery on two occasions (September 29, 2002, and October 7, 2002), during which the hospital had an opportunity to provide notice, and during which the hospital claims it provided notice.8 With regard to Mrs. Dianderas' first admission, the proof demonstrates that at or about 7:25 p.m., Sunday, September 29, 2002, Mrs. Dianderas, with an estimated delivery date of October 14, 2002, and the fetus at 37+ weeks' gestation, presented to labor and delivery, at Florida Hospital, with complaints of contractions. At the time, the finance window was closed, as it had been since 11:00 p.m., Friday, and would be until 6:00 a.m., Monday, and Mrs. Dianderas was admitted to the triage unit by Cynthia Hall, R.N., the on-duty triage nurse. Notably, Nurse Hall, who was responsible for completing all paperwork associated with Mrs. Dianderas' admission, attended Mrs. Dianderas from 7:25 p.m., until her discharge (after it was resolved Mrs. Dianderas was not in labor) at 12:19 a.m., September 30, 2002, except for a brief period (between 9:17 p.m., and 10:20 p.m.) when Mrs. Dianderas was taken for an ultrasound. With regard to notice, Nurse Hall, who routinely works weekends, testified that it was her practice, during her initial evaluation in triage, to provide the patient a copy of the NICA brochure, as well as an acknowledgment form and Consent to Treatment form to complete and sign. According to Nurse Hall, the forms were routinely signed in her presence, were routinely witnessed by her, and she routinely made a photocopy of the acknowledgment form and placed it on the finance clerk's desk (that was adjacent to her desk), so finance could update their computer records on Monday to reflect that the NICA brochure had been given. The original documents, including the original acknowledgment form, were placed in the patient's chart. Here, Nurse Hall is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Nurse Hall. However, the chart does not include a signed acknowledgment form, as it should if Nurse Hall followed her routine practice, and she could offer no explanation for its absence. Also inexplicably, the finance records related to this visit (Intervenors' Exhibit 1A, pages 1 and 2), reveal that at 8:48 p.m. (20:48), September 29, 2002, a finance clerk identified as "RLCEE8" updated Mrs. Dianderas' record to reflect that a copy of the NICA brochure had been provided. Notably, according to Nurse Hall, who was in a position to know, the finance office (in which she would have placed a copy of the acknowledgment form) was not staffed at the time, and she could not explain those entries (which she did not and was not authorized to make). Moreover, at hearing, the hospital made no effort to identify "RLCEE8" or to otherwise explain how these entries occurred. Consequently, given such irregularities it cannot be inferred, with any sense of confidence, that the hospital or Nurse Hall's routine was followed during Mrs. Dianderas' September 29, 2002, admission, or that she was provided a copy of the NICA brochure. With regard to Mrs. Dianderas' second admission, which ultimately led to Isabelle's birth, the proof demonstrates that at 2:00 p.m., October 7, 2002, Mrs. Dianderas, with the fetus at 39 weeks' gestation, presented to labor and delivery, at Florida Hospital, on referral from her obstetrician for a nonstress test (NST), secondary to decreased fetal movement. At the time, the finance window was open, and Iris Miranda, a financial services representative was on duty. With regard to notice, Ms. Miranda testified (by publication of her deposition) regarding the routine she would have followed when Mrs. Dianderas presented to the finance window that afternoon. According to Ms. Miranda, that routine would have included giving Mrs. Dianderas a Consent for Treatment form to sign, as well as a copy of the NICA brochure and an acknowledgment form to sign and give to the nurse in labor and delivery. Here, Ms. Miranda is confident she followed her routine, and Mrs. Dianderas' chart does include a Consent to Treatment form signed by Mrs. Dianderas and witnessed by Ms. Miranda. Moreover, the finance department's records (Intervenors' Exhibit 1B, pages 1 and 2) include a computer entry at 2:03 p.m. (14:03), October 7, 2002, by Ms. Miranda (identified as "IVM76B") noting that a NICA brochure was provided. However, again the chart does not include a signed acknowledgment form, as it should if the hospital's routine was followed, and no compelling explanation for its absences was presented.9 Consequently, given the lack of a reasonable explanation for the irregularities that have been shown regarding the finance department's computer entries, as well as the absence of the acknowledgment form, it cannot be inferred with any sense of confidence that the hospital's routine was followed during Mrs. Dianderas' admission of October 7, 2002, or that Mrs. Dianderas was given a NICA brochure Finally, with regard to the hospital and the notice issue, it is noted that on presentation to Florida Hospital at 2:00 p.m., October 7, 2002, Mrs. Dianderas was not in labor, and insofar as the record reveals she was not thereafter in labor until sometime after her membranes were ruptured, at 4:55 p.m. More particularly, there was no "evidence of the onset and persistence of uterine contractions or rupture of the membranes" from 2:00 p.m., until 4:55 p.m., October 7, 2002. Moreover, there was no proof that, upon admission or until her membranes ruptured, "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 4:55 p.m., when her membranes were ruptured, Mrs. Dianderas 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. Jurisdiction
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue Whether Emma Mae Giroux, a deceased minor, suffered a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of her birth, as required for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement, with the nurse midwife, participating physician, and the participating physician's professional association, bars them from recovery under the Plan. Whether the Division of Administrative Hearings must resolve whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan coverage and pursue such a civil suit.
Findings Of Fact The parties' stipulation By their Pre-Hearing Stipulation, filed October 11, 2002, the parties agreed, as follows: The parties, specifically the Petitioners, the Respondent, and Intervener, AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center, and further to the Status Conference conducted on October 3, 2002, and in lieu of the ALJ conducting a trial of this matter, due stipulate and agree as to the following as a predicate for the ALJ's ruling on the issue of compensability of this claim, to wit: FACTUAL STIPULATIONS That the Petitioners are the legal representative of the deceased minor child. That Emma Mae Giroux was delivered at North Ridge Medical Center on May 3, 1999, and weighed in excess of 2500 grams. That Donna Hamilton was a certified nurse midwife who provided obstetrical services and was present at the birth of Emma Mae Giroux. That Ronald Tuttleman, M.D. was a participating physician in the NICA Plan for 1999. That Donna Hamilton acted under the direct supervision of Ronald Tuttleman, M.D. and that obstetrical services were therefore provided by a participating physician in the NICA Plan, including by virtue of Dr. Tuttleman ordering Pitocin for Kristina Giroux at approximately 12:30 p.m. on May 3, 1999. That Emma Mae Giroux sustained a "birth- related neurological injury" as defined by §766.302, Fla.Stat. That Emma Mae Giroux passed away on May 10, 1999. That proper notice in accordance with §766.316, Fla.Stat., was provided by North Ridge Medical Center prior to delivery. Although the issue of notice by Dr. Tuttleman is moot, the Petitioners acknowledged that Dr. Tuttleman did provide notice to Kristina Giroux of his participation in the NICA Plan prior to delivery pursuant to §766.316, Fla.Stat. LEGAL STIPULATIONS 1. That during the pendency of this action, the Petitioners unilaterally negotiated a settlement with the other interveners, specifically, Donna Hamilton, C.N.M. ("Hamilton") and Ronald M. Tuttleman, M.D. & Ronald M. Tuttleman, M.D., P.A. (Collectively "Tuttleman"), for the total sum of $350,000.00. The Petitioners having elected to receive this civil settlement from the Interveners, Hamilton and Tuttleman, acknowledge that the Petitioners may not receive any benefits from the Respondent under the NICA Plan, pursuant to §766.301, et seq., including specifically pursuant to §766.303(2) & §766.304, Fla.Stat. The Petitioners do reserve the right to proceed against North Ridge Medical Center solely under the statutory exceptions based on theories of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, if and as applicable. North Ridge Medical Center, by entering into this Stipulation, does not waive any of its rights or immunities under the NICA Plan and does not stipulate to the effect of Petitioners' aforedescribed civil settlement. EVIDENTIARY STIPULATIONS The parties do further stipulate as follows in the event an Evidentiary Hearing is rendered unnecessary by this Stipulation: The medical records filed and attached to the Petition shall be admitted into evidence. The medical report of Donald Willis, M.D. dated April 2, 2002, and attached to NICA's Notice of Compensability and Request for Hearing, shall be admitted into evidence. There are no further medical records to be admitted into evidence in this administrative proceeding, and no depositions shall be admitted into evidence in this administrative proceeding. That the Administrative Law Judge shall enter a Final Order with his legal rulings based upon the Stipulated Facts set forth herein, and based upon any other matters appearing within the pleadings and records on file. Consistent with the terms of the parties' stipulation, the medical records filed with DOAH on March 11, 2002 (marked Joint Exhibit 1) and the medical report of Donald Willis, M.D., filed with DOAH on April 10, 2002 (marked Joint Exhibit 2) were received into evidence. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan when an infant suffers a "birth-related neurological injury," defined as an injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the parties agree, and the proof is otherwise compelling, that Emma suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim qualifies for coverage under the Plan; however, given Petitioners' settlement with the nurse midwife and participating physician, and for reasons appearing more fully in the Conclusions of Law, Petitioners are foreclosed from pursuing an award under the Plan. Jurisdiction
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 Whether George Houvardas (George), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether Katharine Weinstock, M.D., the participating physician who provided obstetrical services at George's birth, gave the patient notice, as required by Section 766.316, Florida Statutes.
Findings Of Fact Findings related to compensability Simone Houvardas and Paul Houvardas are the natural parents of George Houvardas, a minor. George was born a live infant on September 29, 2003, at Morton Plant/Mease Hospital, a licensed hospital located in Clearwater, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were provided during George's birth by Katharine Weinstock, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that George suffered an injury to the brain caused by oxygen deprivation during 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 record demonstrated that George suffered a "birth-related neurological injury," and since obstetrical services were provided by a "participating physician" at birth the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The notice issue While the claim qualifies for coverage under the Plan, Petitioners would like an opportunity to pursue their civil remedies, and avoid a claim of Plan immunity. Therefore, Petitioners have averred and requested a finding that Dr. Weinstock failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether Dr. Weinstock complied with the notice provisions of the Plan. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 948 So. 2d 705, 717 (Fla. 2007)("[W]hen the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316."). Accord 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."); 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). The notice provisions of the Plan In pertinent part, Section 766.316, Florida Statutes, prescribes the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician . . . 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 . . . . The NICA brocure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), and distributed the brochure to the participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Exhibit 1 to Intervenors' Exhibit 1). The NICA brochure included the following statement: If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA plan. Findings related to the participating physician and notice Mrs. Houvardas received her prenatal care at Rosewater, Lerner, Rudolph & Associates, M.D., P.A. (hereinafter "RLR"), a division of Tampa Bay Women's Care, a group practice that was, at the time of her initial visit, composed of five physicians that practiced obstetrics and gynecology: Doctors Stanley Rosewater, Saul Lerner, Richard Rudolph, GiGi McCance, and Katherine Weinstock.3 Notably, all of the physicians were participating physicians in the Plan. On January 30, 2003, Mrs. Houvardas presented to RLR for her initial prenatal visit. At the time, consistent with established practice for new prenatal patients, Mrs. Houvardas was given a copy of the NICA brochure, together with a Notice to Obstetric Patient form. The Notice to Obstetric Patient form provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by Tampa Bay Women's Care that was prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that Dr. Rosewater, Dr. Rudolph, Dr. Lerner and Dr. McCance are participating physicians in that program. I understand that under this program certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth-Related Neurological Injury Compensation Association (NICA) at P.O. Box 14567, Tallahassee, FL 32317-4567, 1-800-398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 200 . Signature (Name of Patient) Please Print Social Security No. Attest: Signature of employee Date: The notice was printed on RLR stationery, with the names of four of the physicians associated with the practice (Doctors Rosewater, Lerner, Rudolph, and McCance) listed along the upper left side of the stationery. Dr. Weinstock was not named on the letter head or identified in the notice as a participating physician.4 Mrs. Houvardas signed the form, acknowledging notice of Doctors Rosewater's, Rudolph's, Lerner's, and McCance's participation in the Plan, and receipt of the NICA brochure. Brandy Clark, an employee of RLR who conducted the initial interview, witnessed Mrs. Houvardas' signature. Here, there is no dispute that Mrs. Houvardas signed the Notice to Obstetric Patient form or that she received a copy of the NICA brochure during her initial visit. (Petitioners' Amended Pre-Hearing Stipulation, filed October 5, 2007, Stipulated Facts (c) and (d); Respondent's and Intervenors' Amended Pre-Hearing Stipulation, filed October 4, 2007, Stipulated Facts (c) and (d)). But, since Dr. Weinstock was not identified as a participating physician, the Notice to Obstetric Patient form was inadequate to satisfy Dr. Weinstock's obligation to provide pre-delivery notice of her participation in the Plan, as mandated by Galen, supra. See also Jackson v. Florida Birth- Related Neurological Injury Compensation Association, 932 So. 2d 1125, 1129 (Fla. 5th DCA 2006)("[S]ince the [Notice to Obstetric Patient] form had a blank space where the names of the physicians should have been filled in, the notice was inadequate to give rise to the statutory rebuttable presumption that PAF [the obstetrical practice] provided proper notice as outlined in the statute . . . [or that] 'any obstetrician associated with PAF was a participating physician in the Plan.'"). While the Notice to Obstetric Patient form was inadequate to provide notice of Dr. Weinstock's participation, Intervenors have, during the course of this proceeding, advanced two bases which they contend support the conclusion that proper notice was provided. First, Intervenors contended that Mrs. Houvardas was told, during her initial visit, that all of the physicians participated with NICA, and therefore proper notice of Dr. Weinstock's participation was provided.5 See Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 932 So. 2d at 1129 ("[V]erbal notice that all of PAF's physicians were participants in the NICA plan" was adequate notice.). Consequently, it must be resolved whether the proof demonstrates, more likely than not, that Mrs. Houvardas was so informed and, if so, whether given the language of the notice (which named only Doctors Rosewater, Rudolph, Lerner, and McCance), such a statement was adequate to provide notice of Dr. Weinstock's participation. Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253, 1260 (Fla. 1st DCA 2004)("[A]s the proponent of the issue, the burden rested on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied."). To support their contention, Intervenors offered the testimony of Melissa Rudolph, the practice administrator for RLR and the wife of Dr. Rudolph. (Intervenors' Exhibit 1). According to Mrs. Rudolph, the nurses who conduct the initial prenatal evaluation are trained, as a part of their routine, to . . . give . . . [the patient] the NICA notification, . . . show them the notification and let them know if they have any questions whatsoever there is an 800 number on the back of the pamphlet. They can always ask the physician if they have any questions, and they are notified that all of the physicians are participating with NICA. They ask them to sign the notification that they've been informed that we are participating with NICA, and then they are moved onto the back where they then meet with the physician. (Intervenors' Exhibit 1, pages 7 and 8). Notably, Intervenors did not call Brandy Clark, the nurse responsible for Mrs. Houvardas' initial prenatal visit, or account for her unavailability, and did not call any nurse or other staff to substantiate that such a routine was in place on September 30, 2003. Contrasted with the proof offered by Intervenors, Petitioners offered the testimony of Dawanna Bunting, R.N., the clinical coordinator at RLR, and the person responsible for training all new nurses, including Brandy Clark.6 (Petitioners' Exhibit 14). Under the procedure described by Nurse Bunting, patients were not routinely advised that all the physicians in the group were participants in the Plan. Rather, Nurse Bunting described the routine, as follows: Q. Okay. What specifically did you train Ms. Clark to do with regard to NICA information? A. Well, we offer them the NICA pamphlet, the brochure, and then we give them the notice to sign, stating that they are aware that they have received this pamphlet. And that there is a 1-800 number on the back of that pamphlet, and if they have any questions, they should call, and they're signing that they're receiving the brochure. Q. Okay. Anything other than that? A. No, not unless they ask. (Petitioners' Exhibit 14, pages 10 and 11). According to Nurse Bunting, 99.9 percent of the patients do not ask questions, but simply sign the notice form and hand it back. (Petitioners' Exhibit 14, page 26). As between, Mrs. Rudolph and Nurse Bunting, the testimony of Nurse Bunting was, overall, the most candid and compelling. Therefore, it must be resolved that the proof failed to establish, with the requisite degree of certainty, that at the time of Mrs. Houvardas' initial prenatal visit RLR had an established routine whereby obstetrical patients were informed that all the physicians associated with the practice were participating physicians in the Plan. Moreover, were such a routine established, it would not have been adequate to inform Mrs. Houvardas of Dr. Weinstock's participation. In so concluding, it is noted that given the format of the notice (which named only Doctors Rosewater, Rudolph, Lerner, and McCance) a reasonable person, similarly situated, would unlikely place any significance on such a general comment regarding participation, beyond the physicians identified in the notice.7 Finally, Intervenors contend that the Notice to Obstetric Patient form is optional, and that delivery of the NICA brochure to the patient by the participating physician or an employee of the practice is the sole requirement for compliance with Section 766.316, Florida Statutes. Intervenors reason, as follows: 2. §766.316, Florida Statutes, refers to two separate and distinct types of forms. The first is a Notice Form furnished by the Florida Birth-Related Neurological Injury Compensation Association. The Notice Form is otherwise known as [the] NICA Brochure. * * * This Notice Form (NICA Brochure) was provided to SIMONE HOUVARDAS on January 30, 2003. The second form referred to in §766.316 is an Acknowledgment Form. The Acknowledgment Form is optional and if used by the participating physician serves to raise a rebuttable presumption that the Notice Form (NICA Brochure) was delivered to the patient. In the instant case, the rebuttable presumption is not an issue since Petitioners have stipulated that the Notice Form (NICA Brochure) was delivered to SIMONE HOUVARDAS. * * * Delivery of the Notice Form (NICA Brochure) by the participating physician or an employee of the practice to the obstetrical patient is the sole requirement for compliance under §766.316, Florida Statutes. The Notice Form (NICA Brochure) contains the following language: "If your healthcare provider has provided you with a copy of this informational form, your health care provider is [p]lacing you on notice that one or more physician(s) at your health care provider participates in the NICA plan["]. Accordingly, delivery of the Notice Form (NICA Brochure) with the language encompassed therein, serves as notice that one or more of the health care providers in the practice participates in the NICA and of the patient's rights and limitations under the plan. Therefore, delivery of the Notice Form (NICA Brochure) to SIMONE HOUVARDAS on January 30, 2003, by a nurse employee of RLR, in the office [of] RLR, was sufficient compliance with §766.316, Florida Statutes, and therefore, KATHARINE WEINSTOCK, M.D. and RLR are entitled to immunity under §766.316, Florida Statutes. Intervenors are correct that use of the Notice to Obstetric Patient form is optional, but are incorrect to conclude that its utility is limited to raising a rebuttable presumption that the NICA brochure was given to the patient. Rather, if properly used, the Notice to Obstetric Patient form is persuasive evidence that the named physicians gave notice of their participation in the Plan. Apparently, that was Intervenors' intention in this case, but because RLR used the wrong form it failed to give notice on Dr Weinstock's behalf. Intervenors may also be correct that under certain circumstances (i.e., when the participating physician gives the patient the brochure) delivery of the brochure provides proper notice of a physician's participation in the Plan. However, those are not the facts of this case. Rather, here an employee of RLR gave the patient a NICA brochure, together with a Notice to Obstetric Patient form that identified Doctors Rosewater, Rudolph, Lerner, and McCance, but not Dr. Weinstock, as participating physicians in the Plan. Under these circumstances, delivery of the NICA brochure, giving due consideration to the wording of the provision relied upon by Intervenors, would not have placed Mrs. Houvardas on notice of Dr. Weinstock's participation in the Plan. Accordingly, it must be resolved that, although it was practicable to have done so, Mrs. Houvardas was not provided notice of Dr. Weinstock's participation in the Plan.8
Findings Of Fact The Amended Petition named Dr. Tracey Molrine as the physician providing obstetric services at Eileen’s birth on August 30, 2014. 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 Dr. Tracey Molrine [sic] indicates that in the year 2014, the year in which Dr. Molrine [sic] participated in the delivery of Eileen Mares, as indicated in the Petitioners’ Petition for Benefits, Dr. Morline [sic] 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. Molrine [sic] in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2013 [sic], Dr. Molrine [sic] paid the Two Hundred and Fifty Dollar ($250) assessment required by Section 766.314(4)(b)1., Florida Statutes, for non-participating, non-exempt licensed physicians. The physician payment history/report for Dr. Tracey supports Mr. Daughtry’s affidavit. Petitioners acknowledge in their Motion in Partial Support of Respondent’s Motion for Final Summary Order that the requirement of section 766.309(1)(b), that obstetric services be provided by a participating physician, has not been satisfied. At the time of the birth of Eileen, Dr. Tracey was not a participating physician in the Plan.
