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.
Findings Of Fact The Petition named Dr. George as the physician providing obstetric services at Ross's birth on January 28, 2010. 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 Injury Compensation Plan who have timely paid the Five Thousand Dollar ($5,000) 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) assessment pursuant to Section 766.314(4)(c), Florida Statutes. 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. Adrienne George indicates that in the year 2010, the year in which Dr. George participated in the delivery of Ross Reshard, as indicated in the Petitioners' Petition for Benefits, Dr. George did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan until February 2, 2010. According to the petition, the child was born on January 28, 2010. 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. George in relation to an exempt status for the year 2010. To the contrary, the attached "NICA CARES physician payment history/report" shows that on February 2, 2010, Dr. George paid the Five Thousand Dollar ($5,000) assessment required by Section 766.314(5)(a), Florida Statutes, for participating physicians. The NICA CARES statement attached to the affidavit of Mr. Daughtry supports the representations made in the affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that Dr. George had not paid her assessment for 2010. At the time of the birth of Ross, Dr. George was not a participating physician in the Plan.
The Issue Whether David Weeks, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether the hospital and the participating physician gave the patient notice, as contemplated by Section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was not practicable.
Findings Of Fact Findings related to compensability Bethany Weeks and Michael Weeks are the natural parents of David Weeks (David), a deceased minor, and Bethany Weeks is the Personal Representative of her deceased son's estate. David was born a live infant at 11:00 p.m., November 3, 2002, at South Seminole Hospital, a hospital located in Longwood, Florida, and, following the termination of resuscitation efforts, was pronounced dead at 11:30 p.m. David's birth weight was 2,925 grams. The physician providing obstetrical services at David's birth was Christopher Quinsey, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat. Here, the proof is compelling that David suffered an injury to the brain caused by oxygen deprivation, secondary to placental abruption, in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, that led inevitably to his death shortly after birth. Consequently, the record demonstrated that David suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. Findings related to the award Where, as here, it has been resolved that a claim is compensable, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes, provides for an award of the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel. However, such expenses shall not include: Expenses for items or services that the infant has received, or is entitled to receive, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for items or services that the infant has received, or is contractually entitled to receive, from any prepaid health plan, health maintenance organization, or other private insuring entity. Expenses for which the infant has received reimbursement, or for which the infant is entitled to receive reimbursement, under the laws of any state or the Federal Government, except to the extent such exclusion may be prohibited by federal law. Expenses for which the infant has received reimbursement, or for which the infant is contractually entitled to receive reimbursement, pursuant to the provisions of any health or sickness insurance policy or other private insurance program. * * * 1. Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. 2. Death benefit for the infant in an amount of $10,000. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge. In determining an award for attorney's fees, the administrative law judge shall consider the following factors: The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal services properly. The fee customarily charged in the locality for similar legal services. The time limitations imposed by the claimant or the circumstances. The nature and length of the professional relationship with the claimant. The experience, reputation, and ability of the lawyer or lawyers performing services. The contingency or certainty of a fee. In this case, Petitioner and NICA have agreed that, should Petitioner elect to accept benefits under the Plan, Bethany Weeks and Michael Weeks, as the parents of David, be awarded $100,000.00, to be paid in lump sum. The parties have further agreed that Petitioner Bethany Weeks, as Personal Representative of the Estate of David Weeks, be awarded a death benefit of $10,000.00, and an award of $4,115.00 for attorney's fees ($1,575.00 for Petitioner's counsel David J. White, Jr., and $2,040.00 for Petitioner's co-counsel Patrick C. Massa) and other expenses ($500.00) incurred in connection with the filing of the claim. Finally, the parties have agreed that no monies are owing for past expenses. Such agreement is reasonable, and is approved. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioner would prefer to pursue her civil remedies, and has averred, and requested a finding that, the hospital and the participating physician who delivered obstetrical services at David's birth (Dr. Quinsey), failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery."). Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied.3 At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice requirements of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions[4] or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Petitioner's Exhibit 7.) Findings related to Mrs. Weeks' prenatal care and notice Initially, Mrs. Weeks received prenatal care at the Seminole County Health Department, where she was first seen on June 18, 2002, and then transferred to Advanced Women's Health Specialists (AWHS) in September 2002, at 29 3/7 weeks' gestation. Notably, Mrs. Weeks had extensive workups at the Seminole County Health Department, and she delivered a copy of her medical records (which she received from the health department on September 13, 2002) to AWHS, most likely at her first visit, Monday, September 16, 2002.5 According to Mrs. Weeks' patient chart, AWHS received the following documents from the health department: a flow sheet; progress notes; history; physical; PAP; blood work/all labs; Chlamydia, gonorrhea, hepatitis results; RPR results; tri-screen results; HIV results; sonogram result; one hour GTT results; and urine culture results. (Doctors' Exhibit 10.) Pertinent to the notice issue, the physicians (who were members of the AWHS group practice) and AWHS presented evidence (through the testimony of Bonnie Mladec, the clinical coordinator for AWHS) that when Mrs. Weeks presented to AWHS for her initial visit, AWHS had a routine pursuant to which all new patients, regardless of the stage of their pregnancy, and regardless of whether they started their prenatal care with another provider, were given a copy of the NICA brochure by the medical assistant who interviewed them, together with eight other documents. (Doctors' Exhibits 1-9.) Four of the documents were informational, and did not require a signature: the NICA brochure; a one-page list of safe medications to use during pregnancy; a one-page document titled "Why Breastfeed?"; and a one-page document explaining the Healthy Start Program. The five documents that required a signature were a Notice to Our Obstetrics Patients (to acknowledge receipt of the NICA brochure)6; consent to HIV Antibody Test form (to accept or decline the test); a Triple Test Screening for Birth Defects form (to accept a decline the test); a Cystic Fibrosis Carrier Testing form (to accept or decline the test); and a Healthy Start Prenatal Risk Screen form (to accept or decline screening). Notably, Mrs. Weeks' chart does not include, as it should if AWHS's routine was followed, a copy of a Notice to Our Obstetric Patients form signed by Mrs. Weeks, or a copy of any of the other forms patients were routinely requested to sign. (Doctors' Exhibit 10; Transcript, pages 21-25.) Nevertheless, the physicians and AWHS contend there is no reason to conclude AWHS's routine was not followed because each test was performed, and AWHS would not have performed the tests absent Mrs. Weeks' written consent. In contrast to the proof offered regarding AWHS's routine, Mrs. Weeks testified that no such routine was followed when she presented for her initial visit.7 According to Mrs. Weeks, no one discussed the Plan with her, she did not receive a NICA brochure, did not sign a receipt for a brochure, and did not sign any other document that would have been part of the routine. Here, the evidence failed to support the conclusion that, more likely than not, AWHS's routine was followed. In so concluding, it is noted that, Mrs. Weeks' chart contains no document signed by Mrs. Weeks that would have been part of AWHS's routine, and contrary to the contention of the physicians and AWHS, and contrary to the testimony they offered to support such contention, the charting of HIV Antibody test results and a Triple Test Screening does not support the conclusion that AWHS's routine was followed. Rather, it demonstrates that AWHS merely accepted the results the health department had obtained. As for the Healthy Start Prenatal Risk Screen, Mrs. Weeks' chart contains no evidence that AWHS presented her with that form to sign. Rather, since the health department's prenatal record reveals that Healthy Start Screening had been completed, given AWHS's acceptance of other department of health testing, and given no further explanation, it is likely AWHS did not pursue the matter. Consequently, as to these forms, the record offers no compelling proof that AWHS followed its routine. Rather, it offers proof to the contrary. As for the Cystic Fibrosis Carrier Test, the record does reveal that test was done at AWHS, and Mrs. Weeks' chart (Antepartum Record, page D, under Comments/Additional Labs) contains an entry ("[C]ystic F[ibrosis]=accepted [,] drawn on 9/16/02") that supports the conclusion she consented to the test at her initial visit. However, given the proof, or lack thereof, these findings are not compelling proof that Mrs. Weeks' consent to the Cystic Fibrosis Carrier Test was part of an invariable routine that was followed at a patient's initial visit. Therefore, the proof fails to support the conclusion that AWHS's routine was followed on Mrs. Weeks' initial visit, or that Mrs. Weeks received a NICA brochure or signed a receipt for a NICA brochure on her initial visit. Findings related to David's birth and notice At or about 8:15 p.m., November 3, 2002, Mrs. Weeks, with an estimated delivery date of November 27, 2002, and the fetus at 36 5/7 weeks' gestation, presented to Labor and Delivery Triage, at South Seminole Hospital, in labor (with evidence of the onset and persistence of uterine contractions). At the time, Mrs. Weeks' chief complaint was noted as "[contractions] most of today, becoming more uncomfortable since [6:00 p.m.]." The notes of the triage nurse (Bernadette Charles, R.N.) include the following narrative: Client received from ER in wheelchair with above complaints. Crying and complain of labor pains. Denies rupture of membranes or bright red vag bleeding. Client's restless and uncooperative. Encouraged to relax between contractions Elevated B[lood] P[ressure] noted. Client complained of headaches, DTRs 3[+ very brisk], no clonus, edema 2 to 3+ . . . [P]ain scale [8- 9/10]. (Petitioner's Exhibit 1, pages 21 and 22; Petitioners Exhibit 6, page 0533.) Initial assessment in triage noted uterine contractions of moderate intensity, every 2 to 3 minutes, with a duration of 40 to 50 seconds. Blood pressure was elevated (164/112), and vaginal examination revealed the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus between station -1 and -2. At 8:45 p.m., Ms. Charles spoke with Lesann Dwyer, a certified nurse midwife (CNM) at AWHS, and at 8:55 p.m., she spoke with Dr. Quinsey, and received orders to admit Mrs. Weeks to labor and delivery. Thereafter, at 9:05 p.m., Mrs. Weeks was moved by wheelchair from triage to labor and delivery room 403, where she was admitted at 9:10 p.m. According to Ms. Charles' admission note: client admitted to LR 403 in early labor . . . P[ain]/S[cale] 6/10-Client crying- uncooperative. Requesting something for pain . . . . According to the medical records, by 9:15 p.m., the time at which the activities were documented, Mrs. Weeks was in her bed, positioned on her right side, and an external fetal monitor and blood pressure monitor were attached. At the time, assessment revealed an elevated blood pressure (173/103); a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability; the cervix at 2 centimeters dilation, effacement at 70 percent, and the fetus at station -1; moderate uterine contractions, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds; and a pain severity level of 7-8/10. Also noted, an IV had been started, labs drawn, and Mrs. Weeks had been asked to sign a number of documents, including an acknowledgment of receipt of NICA notice.8 The acknowledgement form provided, as follows: FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN ACKNOWLEDGMENT OF PATIENT RECEIPT OF NOTICE I have been advised that Orlando Regional Healthcare System, Inc. and its resident physicians are participating members in the Florida Birth-Related Neurological Injury Compensation Plan. This Plan provides that certain limited compensation is available in the event certain birth-related neurological injuries may occur during labor, delivery or post-delivery resuscitation, irrespective of fault. For specifics on the Plan, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association (NICA), Post Office Box 14567, Tallahassee, Florida 32317-4567; (904) 488- 8191/ 1 (800) 398-2129. I further acknowledge I have received from Orlando Regional Healthcare System, Inc., a copy of the form brochure regarding the Plan. The form brochure is prepared and furnished by the Florida Birth-Related Neurological Injury Compensation Association. Dated this day of , 2002. Signature Name of Patient Social Security No. Witness: Date: Mrs. Weeks concedes she signed the acknowledgment form. However, she denies she received the NICA brochure. Subsequently, at 9:20 p.m., Mrs. Weeks was given Stadal (for pain) and magnesium sulfate (for pregnancy-induced high blood pressure), and at 9:30 p.m., the records note a fetal heart rate baseline of 120 to 130 beats per minute, with decreased long-term variability, and contractions of moderate intensity, at a frequency of 1 to 2 minutes, with a duration of 30 to 40 seconds. Thereafter, there is a gap in documentation until 10:00 p.m., when fetal heart rate is noted in the 90 to 100 beat per minute range, Mrs. Weeks is given oxygen and a position change, and Dr. Quinsey is called and updated. Shortly thereafter, at 10:05 p.m., anesthesiology was alerted to a possible cesarean section, and at 10:20 p.m., Ms. Charles attempted to place a fetal scalp electrode and Mrs. Weeks membranes ruptured. By 10:25 p.m., Dr. Quinsey had arrived at the hospital, and was noted at bedside. At the time, Dr. Quinsey observed Mrs. Weeks was having constant abdominal pain, with a tense abdomen, consistent with placental abruption, and an emergent cesarean section was indicated. Under the circumstances, it was Dr. Quinsey's opinion, which was credible and uncontroverted, that inadequate time remained to safely transfer Mrs. Weeks to another hospital prior to delivery, and any transfer may have posed a threat to the health and safety of Mrs. Weeks or her fetus. Given Mrs. Weeks' presentation, a stat cesarean section was called, and Mrs. Weeks was moved to the operating room, where she was admitted at 10:40 p.m. According to the records, surgery started at 10:57 p.m., and David was delivered at 11:00 p.m., with an Apgar score of 1 and 0, at one and five minutes respectively.9 Resolution of the notice issue with regard to the participating physician With regard to Dr. Quinsey, the participating physician who provided obstetrical services at David's birth, the proof demonstrates that, although it was practicable to do so during her prenatal care at AWHS, Mrs. Weeks was not given notice.10 However, since Mrs. Weeks had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, when Dr. Quinsey provided obstetrical services to her on November 3, 2002, he was exempt from the pre-delivery notice requirement, notwithstanding it may have been practicable for him to have provided Mrs. Weeks notice during her prenatal care at AWHS. § 766.316, Fla. Stat.; Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582, 586 (Fla. 5th DCA 2005)("We hold that the statute contains two distinct exemptions, each of which independently provides an exception to the pre-delivery notice requirement. As such, [the hospital] was excused from providing notice to [the patient] when she arrived at the [hospital] under emergency medical conditions, and her previous visits to the hospital during her pregnancy did not negate this clear statutory exemption."). Consequently, with regard to the participating physician, the notice provisions of the Plan were satisfied. Resolution of the notice issue with regard to the hospital With regard to the hospital, it was the hospital's policy to provide the patient with a copy of the NICA brochure, together with an acknowledgment form for the patient to sign acknowledging receipt of the brochure, following admission to labor and delivery. Here, there is no dispute that Mrs. Weeks signed the acknowledgment form at or about 9:15 p.m., following her admission to labor and delivery.11 What is disputed, is whether Mrs. Weeks was given a NICA brochure. Petitioner also contends that the brochure, if given, was not provided a reasonable time prior to delivery to allow for the exercise of an informed choice of providers. As to this contention, Petitioner notes that the hospital had an opportunity to provide meaningful notice during two prior admissions, as well as during Mrs. Weeks' preregistration, but failed to do so, and that "[a]t the time [] the NICA brochure was allegedly given to Bethany Weeks [on November 3, 2002] she was expected to read it while she was having contractions, in pain, receiving lactate ringers, and while labs were being drawn," a less than opportune time. (Petitioner's Proposal Final Order, paragraph 26.) Stated otherwise, Petitioner contends that, if she was given the brochure on November 3, 2002, it was not efficacious notice. However, the hospital, like the participating physician who delivered obstetrical services at David's birth, was exempt from the pre-delivery notice requirement, since when Mrs. Weeks presented to South Seminole Hospital at or about 8:15 a.m., November 3, 2002, she had an "emergency medical condition" ("evidence of the onset and persistence of uterine contractions"), as defined by Section 395.002(9)(b), Florida Statutes, and notwithstanding it may have been practicable for the hospital to have provided Mrs. Weeks' notice during her previous visits to the hospital. § 766.316, Fla. Stat.; Orlando Regional Healthcare Systems, Inc. v. Alexander, supra. Consequently, it is unnecessary to address whether Mrs. Weeks was given a NICA brochure or whether, if given, the notice was efficacious.
Findings Of Fact The Petition named Dr. Szurkus as the physician providing obstetric services at Desmond’s birth on February 14, 2009. 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. Dennis Szurkus indicates that on February 14, 2009, the date in which Dr. Szurkus participated in the delivery of Desmond Govan, as indicated in the Petitioner’s Petition for Benefits, Dr. Szurkus did not pay the Five Thousand Dollar ($5,000) assessment required for participation in the Florida Birth-Related Neurological Injury Compensation Plan until September 21, 2009. 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. Szurkus in relation to an exempt status for the year 2009. The physician payment history/report for Dr. Szurkus supports Mr. Daughtry’s affidavit. Petitioner has not offered any exhibits, affidavits or any other evidence refuting the affidavit of Mr. Daughtry, which shows that on February 14, 2009, Dr. Szurkus had not paid his $5,000 assessment for 2009. At the time of the birth of Desmond, Dr. Szurkus was not a participating physician in the Plan.
The Issue Whether notice was accorded the patient, as contemplated by section 766.316, Florida Statutes, or whether the failure to give notice was excused because the patient had an emergency medical condition, as defined in section 395.002(8), or the giving of notice was not practicable.
Findings Of Fact On April 8, 2014, at approximately 7:33 a.m., Petitioner, Priscilla Franco, presented to Fisherman’s Community Hospital (Fisherman’s) in Marathon, Florida. At the time, she was 33 weeks and 6 days pregnant. Her primary complaint at Fisherman’s was abdominal pain. It was noted that her lower abdominal pain was sharp and had begun at 4:00 a.m. At 7:40 a.m., her pain was noted to be a 5 out of 10 on a 10-point pain scale. At 7:51 a.m., Ms. Franco was diagnosed at Fisherman’s with “active labor, premature.”1/ As Fisherman’s does not have obstetrical services available, a transfer was initiated. At approximately 8:45 a.m., Sabrya Ishoof, M.D., accepted the transfer of Ms. Franco to South Miami. Dr. Ishoof is a self-employed obstetrician/gynecologist. At all times relevant to this proceeding, she held staff privileges at South Miami. On April 8, 2014, she was called in to treat Ms. Franco as the on-call emergency obstetrician. Prior to this date, Dr. Ishoof and Petitioner did not have a physician- patient relationship for obstetrical services. Similarly, Ms. Franco did not have such a relationship with South Miami. At approximately 9:54 a.m., Ms. Franco was transported via helicopter provided by Lifenet from Fisherman’s to South Miami, where she arrived at approximately 11:15 a.m. Upon arrival, Ms. Franco was taken to the antepartum unit, where she was initially assessed and examined by Carmen Davis, R.N., and Melissa Luna, R.N. The initial assessments included, inter alia, placing an external fetal monitor on Ms. Franco and performing a vaginal examination. The vaginal examination revealed that Ms. Franco’s cervix was 3 cm dialated and had thinned to 60 percent effacement. At approximately 11:37, Nurse Luna documented that Ms. Franco was having uterine contractions, lasting 30 to 60 seconds. The contractions resulted in cramping abdominal pain. The pain was described as a 5-6 on the 10-point pain scale. At 11:38 a.m., this assessment was communicated to Dr. Ishoof. Two minutes later, Dr. Ishoof issued her Admission Order, wherein she admitted Ms. Franco to the antepartum unit and ordered magnesium, antibiotics, insulin, as well as an ultrasound. The decision to admit Ms. Franco was based upon the following: Ms. Franco’s prior history of a preterm Cesarean delivery, cervical dilation, and uterine contractions--being in active labor. At 12:06 p.m., Nurse Luna documented that Ms. Franco was having uterine contractions lasting 50 to 60 seconds. At 12:13 p.m., Nurse Davis contacted Dr. Ishoof regarding the external fetal monitoring interpretation, the contraction pattern, pain assessment, and interventions performed. Nurse Davis, at approximately 12:14 p.m., proceeded with admission paperwork with Ms. Franco. A packet of information was provided to Ms. Franco, which, inter alia, included a NICA brochure, entitled “A Peace of Mind for an Unexpected Problem,” and a form acknowledging receipt of the brochure, entitled “Notice to Obstetric Patient.” The notice language, which is contained on a document bearing the label for South Miami, provides as follows: NOTICE TO OBSTETRIC PATIENT I have been furnished information by the hospital prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that my doctor may be a participating physician in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), P.O. Box 14567, Tallahassee, Florida 32317-4567, (800) 398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. Nurse Davis credibly testified that, while she does not have a specific recollection of Ms. Franco, her routine practice was to provide the NICA brochure and notice acknowledging receipt to her patients upon admission. Specifically, Nurse Davis testified that she would provide the documents and request the patient to sign the same. Nurse Davis would then sign the document acknowledging the patient’s signature and receipt. In this matter, Ms. Franco’s signature appears under the above- referenced notice. The document further bears the signature of Nurse Davis as a witness to Ms. Franco’s signature. While Ms. Franco testified that she did not receive the NICA brochure, Ms. Franco’s testimony on this fact is not credited. The better evidence establishes that Ms. Franco was provided the NICA brochure as described by Nurse Davis and acknowledged by Ms. Franco’s signature. At 12:34 p.m., Dr. Ishoof ordered Ms. Franco to be prepared for a Cesarean section delivery. Dallas was delivered at 1:51 p.m. It is undisputed that Dr. Ishoof was the physician providing obstetric services at Dallas’s birth. The evidence established that Dr. Ishoof was a Plan-participating physician at that time. The evidence further established that South Miami was a Plan-participating hospital at the time of Dallas’s birth.
