The Issue Whether birth-related neurological injuries which result in death during the neonatal period2 are covered by the Florida Birth-Related Neurological Injury Compensation Plan (Plan) and, if so, whether Nicholas Erwin Schur, a deceased minor, otherwise qualifies for coverage under the Plan. Whether the notice requirements of the Plan were satisfied. Whether the Division of Administrative Hearings has the exclusive jurisdiction to resolve or, alternatively, must preliminarily 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. What effect, if any, the claimants' settlement with the birthing hospital has on the availability of benefits under the Plan. Whether the participating physician's corporate employers have standing to participate in this proceeding.
Findings Of Fact Fundamental findings Petitioners, Nicholas J. Schur and Lisa Schur, are the parents and natural guardians of Nicholas Erwin Schur (Nicholas), a deceased minor, and co-personal representatives of their deceased son's estate. Nicholas was born September 20, 1998, at Baptist Medical Center of the Beaches, Inc. (Baptist Medical Center), a hospital located in Jacksonville Beach, Duval County, Florida, and his birth weight exceeded 2,500 grams. Nicholas died on September 24, 1998, during the neonatal period at Baptist Medical Center.4 The physician providing obstetrical services during Nicholas' birth was Marijane Q. Boyd, M.D., who was at all times material hereto a "participating physician" in the Florida Birth- Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded, and the parties have stipulated, that Nicholas suffered a "birth-related neurological injury," as defined by the Plan. Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA is of the view that, under the provisions of the Plan, the claim is compensable. NICA's conclusion is grossly consistent with the proof and is, therefore, approved.5 Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the participating physician who delivered obstetrical services at birth (Dr. Marijane Boyd) failed to comply with the notice provisions of the Plan. As for Baptist Medical Center, the parties have stipulated that it provided timely pre-delivery notice as envisioned by the Plan. Consequently, it is only necessary to resolve whether, as alleged by the health care providers, the notice provisions of the Plan were satisfied by or on behalf of Dr. Boyd. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000), and University of Miami v. M.A., 26 Fla. L. Weekly D1473a (Fla. 3d DCA June 13, 2001). Pertinent to the notice issue, the proof demonstrates that on or about January 27, 1998, Mrs. Schur sought prenatal care from her existing provider, Cleveland W. Randolph, Jr., M.D., a physician who, together with Samuel A. Christian, M.D., maintained an office for the practice of obstetrics and gynecology (OB/GYN) known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division I, at 1375 Roberts Drive, Suite 205, Jacksonville Beach, Florida. At the time, Drs. Randolph and Christian, like approximately 40 other obstetricians practicing in the Jacksonville area, were employees/shareholders of North Florida Obstetrical & Gynecological Associates, P.A. Notably, all obstetricians employed by North Florida Obstetrical & Gynecological Associates, P.A., were "participating physicians" in the Plan. Consistent with that relationship, Mrs. Schur was offered and accepted a "Contract for Obstetrical Services" (on January 27, 1998) which identified North Florida Obstetrical & Gynecological Associates, P.A., as the entity through which Dr. Randolph would be providing obstetrical and post partum care. That agreement provided, inter alia, as follows: North Florida Obstetrical & Gynecological Associates, P.A., provides total obstetrical and post partum care. This includes a physical examination and prenatal care, delivery of the infant and post partum care. Prenatal care includes all office visits and routine lab evaluation related to the pregnancy. Post partum care includes care for problems relating to the pregnancy or delivery and routine examinations, following the delivery up to 12 weeks. North Florida Obstetrical & Gynecological Associates, P.A., agrees to provide availability of a licensed obstetrician on call 24 hours a day in case of emergency. The agreement further established a fee schedule for basic comprehensive obstetrical care, cesarean section, and other obstetrical services. On March 15, 1998, Dr. Randolph notified Mrs. Schur, as well as his other obstetrical patients, that he would no longer deliver babies, and that his "partner, Dr. Sam Christian," would provide that service. Thereafter, on March 23, 1998, Mrs. Schur had a prenatal visit with Dr. Christian (to decide whether she would accept him as her obstetrician) and decided not to continue her care with Dr. Christian (due to his increased patient load). Effective May 19, 1998, Mrs. Schur elected to transfer her obstetrical and post partum care to the offices of Drs. Rebecca Moorhead, Patricia Schroeder, and Marijane Q. Boyd, another small group practice affiliated with North Florida Obstetrical & Gynecological Associates, P.A. That office, known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, was located in a professional office building adjacent to the building occupied by Doctors Randolph and Christian. While the group practice of Drs. Moorhead, Schroeder, and Boyd was affiliated with North Florida Obstetrical & Gynecological Associates, P.A. (North Florida), and they held themselves out to the public as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, as discussed more fully infra, the principles structured their business relationship through two separate professional associations. Regarding those associations, the proof demonstrated that Doctors Moorhead and Schroeder were employees of North Florida and Dr. Boyd was an employee (the sole employee) of Beaches Obstetrical and Gynecological Practice, Inc. (Beaches OB/GYN).6 Under the terms of a Management Services Agreement, effective August 1, 1997, North Florida (Drs. Moorhead and Schroeder/Beaches-Division II) and Beaches OB/GYN (Dr. Boyd) outlined the manner in which the group practice of Drs. Moorhead, Schroeder, and Boyd would be conducted, as well as how expenses and revenues would be shared. As structured, North Florida agreed to provide billing, administrative and other support services for Beaches OB/GYN (Dr. Boyd) and Beaches OB/GYN agreed that Dr. Boyd would provide her professional services. As compensation for North Florida's services, Beaches OB/GYN agreed to pay what was essentially one-third of the direct operating expenses incurred by North Florida in the operation of the group practice. As for revenue sharing, the agreement contemplated that North Florida and Beaches OB/GYN would receive a share of professional fees received based on the actual professional services provided by North Florida physicians (Drs. Moorhead and Schroeder) and Beaches OB/GYN's provider (Dr. Boyd). While Drs. Moorhead, Schroeder, and Boyd elected to structure their group practice through two professional associations, they otherwise did business as, and held themselves out to the public as, North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II. Notably, the signage on the front door so identified their practice, followed by the names of Drs. Moorhead, Schroeder, and Boyd; and, all paperwork of note likewise identified their practice as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II. Indeed, Mrs. Schur was, at the time, unaware of any entity known as Beaches Obstetrical and Gynecological Practice, Inc.7 Finally, with regard to the manner in which the group practiced, the proof demonstrated that Drs. Moorhead, Schroeder, and Boyd, like many group practices, shared patients, with each patient (including Mrs. Schur) rotating her prenatal care through all three physicians, and shared calls, with each physician on call every third day and every third weekend. With such an arrangement, it was strictly a matter of chance which of the physicians (Drs. Moorhead, Schroeder, or Boyd), all of whom were participating physicians in the Plan, would deliver a patient's child. Regarding the notice issue, it is resolved that Mrs. Schur was provided timely notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., were participating physicians in the Plan, together with notice as to the limited no-fault alternative for birth-related neurological injuries provided by the Plan. Such conclusion is based on the more credible proof which demonstrates that on June 15, 1998, when Mrs. Schur presented to the offices of Drs. Moorhead, Schoder, and Boyd, that they had an established routine whereby on a patient's first office visit she would be provided the notice contemplated by Section 766.316, Florida Statutes. Here, consistent with that routine, the proof demonstrates that on such date, when she presented for her first office visit, Mrs. Schur was given a form titled NOTICE TO OBSTETRIC PATIENT, which provided: I have been furnished information by North Florida Obstetrics & Gynecology Associates, P.A. prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that North Florida Obstetrics & Gynecology Associates, P.A. is a participating practice 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), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further acknowledge that I have received a copy of the brochure prepared by NICA. Dated this day of , 19 . Signature (NAME OF PATIENT) Social Security No.: Attest: (Nurse or Physician) Date: Rather than sign the form, Mrs. Schur wrote across it the words "received at Dr. Randolph's." At hearing, Mrs. Schur testified that, although she does not recall the incident, the best explanation she could offer for writing "received at Dr. Randolph's" instead of signing the form was that "someone would have had to tell me to do that . . . [since] I would not have known to write that on there." Such explanation is logical and credible; however, having accepted the explanation for why the entry was made, instead of signing the form, does not detract from the strong inference to be drawn from the entry. Indeed, having written the words "received at Dr. Randolph's" across the form is compelling evidence that, at the time, Mrs. Schur had a clear recollection that, during the period she was under the care of Dr. Randolph, she received notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., were participating physicians in the Plan, as well as a copy of the NICA brochure that described the NICA program.8 As further evidence that notice was given, it is observed that established routine at the offices of Drs. Moorhead, Schoder, and Boyd also mandated that when notice was given an item titled "NICA ", and contained within a checklist (titled Plans/Education) on a patient's prenatal record, receive a "?" in the space following the acronym NICA. Notably, at or about the same time Mrs. Schur wrote across the notice "received at Dr. Randolph's" the space following the acronym NICA was annotated to read "? c Dr. Randolph." Given Mrs. Schur's entry on the notice form ("received at Dr. Randolph's"), as well as the established routine, it is reasonable to conclude that such annotation was intended to reflect that Mrs. Schur had received NICA notice when she was a patient of Dr. Randolph.9 While the proof demonstrated that Mrs. Schur received notice, as contemplated by Section 766.316, Florida Statutes, that the physicians associated with North Florida Obstetrical & Gynecological Associates, Inc., were participants in the Plan, it likewise demonstrated that no separate notice was provided that Dr. Boyd, either individually or as an employee of Beaches Obstetrical & Gynecological Practice, Inc., was a participant in the Plan. However, for reasons discussed in the Conclusions of Law which follow, such failure was harmless. The settlement agreement with Baptist Medical Center On June 20, 2001, Nicholas J. Schur and Lisa S. Schur, individually and as Personal Representatives of the Estate of Nicholas Erwin Schur (Claimants) and Baptist Medical Center of the Beaches, Inc., formally resolved all claims or potential claims of the Claimants against Baptist Medical Center and North Florida Obstetrical & Gynecological Associates, P.A., including those matters relating to the pending civil action in the Circuit Court, Duval County, Florida, Case No. 00-01458-CA, Division CV- C; however, the Claimants reserved all claims they had against Marijane Q. Boyd and Beaches Obstetrical and Gynecological Practice, Inc. As consideration for that settlement, the Claimants received the sum of $87,500 and the release and discharge of all claims Baptist Medical Center had against the Claimants arising from the care provided to Nicholas or Mrs. Schur.
Findings Of Fact The Amended Petition named Dr. Wanis as the physician providing obstetric services at Cherica’s birth on February 17, 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. Sameh F. Wanis, indicates that in the year 2014, the year in which Dr. Sameh F. Wanis participated in the delivery of Cherica Fremond, as indicated in the Petitioner’s Petition for Benefits, Dr. Sameh F. Wanis 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. Sameh F. Wanis in relation to an exempt status for the year 2014. To the contrary, the attached "NICA CARES physician payment history/report shows that in 2014, Dr. Sameh F. Wanis 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 physician. The physician payment history/report for Dr. Wanis 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 Dr. Wanis had not paid his $5,000 assessment for 2014. At the time of the birth of Cherica, Dr. Wanis was not a participating physician in the Plan.
Findings Of Fact By stipulation filed December 2, 1993, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the "Association") on behalf of Jasmin Soto, Violeta Rodriguez and Luis Soto (the "Petitioners") for benefits under Chapter 766.301-766.316 (F.S.) 1988. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by the Petitioners and a timely denial was filed on behalf of the Association. That the infant, Jasmin Soto, was born at Baptist Hospital on September 29, 1990, and that the said hospital was a licensed Florida Hospital and the attending physician was a participating physician within the meaning of Chapter 766, Florida Statutes. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. That Section 766.302(2), Florida Statutes, states that "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post- delivery in a hospital, which renders the infant permanently and substantially, mentally and physically impaired. The parties agree that Jasmin Soto suffers from a right brachial plexus injury. That the parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., who appears on behalf of the Respondents and Leon I. Charash, M.D., who appears on behalf of the Petitioner. While Dr. Charash has not been deposed, Dr. Duchowny has been deposed and his deposition is submitted as part of this Stipulation. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further Stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon this stipulation, the parties request the hearing officer to rule on Petitioner's claim based upon this Stipulation, the attached medical records and the deposition of Dr. Duchowny. The neurological examinations of Jasmin reveal that she suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, Jasmin's mental functioning is normal and not impaired due to any birth- related complications.
The Issue The issue in this case is whether Jeffrey Puretz, M.D., was a participating physician at the time of the birth of Sophia Talley for purposes of the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated Facts Petitioners Jaime Barnes and Jonathan Talley are the parents/natural guardians of Sophia Talley. The delivery of Sophia was performed by Intervenor, Jeffrey Puretz, M.D. Sophia was born at Lakeland Regional Medical Center (LRMC), a licensed hospital in Lakeland, Florida, on June 14, 2011. Sophia’s birth weight was 2,970 grams. Sophia was a single gestation. Sophia did not suffer from a genetic or congenital abnormality at birth. Sophia’s APGAR scores at birth were 4/8/9. Sophia was delivered by Cesarean section. Sophia is substantially and permanently mentally and physically impaired as a result of an hypoxic injury to her brain which occurred during labor, delivery and in the immediate post- delivery period. Sophia’s medical condition and treatment are documented in the birth records of Lakeland Regional Medical Center. The Petition in this cause was filed within five years from the date of birth of Sophia. Jeffrey Puretz, M.D., provided NICA notice to Jaime Barnes. Jeffrey Puretz, M.D., paid the NICA fee covering the period during which the birth of Sophia took place. NICA issued a certificate of participation regarding Jeffrey Puretz, M.D., for the period of time which included the date of birth of Sophia. At the time of Sophia’s birth, Jeffrey Puretz, M.D., was providing services pursuant to a contract with Central Florida Healthcare, Inc. (CFH). Facts based upon evidence of record At the time he delivered Sophia Talley, Dr. Puretz was employed by Women’s Care of Florida Lakeland OB/GYN. However, Dr. Puretz also provided obstetrical services pursuant to an independent contractor agreement with CFH. Ms. Barnes received her prenatal care from CFH. Dr. Puretz provided services to Ms. Barnes as a result of Ms. Barnes’ status as a patient of CFH, a federally-funded community healthcare provider. The independent contractor agreement between Dr. Puretz and CFH states that Dr. Puretz has been "deemed" an employee of the federal government pursuant to the Federally Supported Health Centers Assistance Act and reads in pertinent part as follows: The practice represents and warrants to the Contractor that it has been “deemed” and that during the term of this Agreement it shall remain “deemed” as an employee of the Federal Government pursuant to the Federally Supported Health Centers Assistance Act of 1995 (Pub. L. 104-73). As such, all of the Practice’s employees and certain independent contractors, as well as the Practice itself, are afforded protection under the Federal Tort Claims Act (FTCA) for claims relating to personal injury, including death, resulting from the performance of medical procedures required under this Agreement. The Contractor, by virtue of his/her independent contractor status in the field of obstetrics and gynecology, will be afforded protection under the FTCA for duties performed under this Agreement. The NICA Notice provided to Ms. Barnes by CFH includes the name of Dr. Puretz as one of the physicians who could be providing obstetrical care to Ms. Barnes. In addition to having a “Certificate of Participation” from NICA, Dr. Puretz appears on NICA’s list of participating physicians, which listed Dr. Puretz as a participating physician for the time period in which Sophia was born. Carol Fox is Associate Vice President of Medical and Academic affairs at LRMC. Her responsibilities include oversight of the medical staff office, which does the credentialing, privileging, and enrollment of medical staff members of the hospital. According to Ms. Fox, a physician must provide evidence of licensure and malpractice insurance to apply for medical staff privileges. The office is also responsible for confirming that physicians with privileges are participants in NICA. Dr. Puretz is an active staff member providing obstetrical services at LRMC. A copy of Dr. Puretz’s memorandum of insurance for medical professional liability insurance is kept on file at LRMC, listing his private practice, Women’s Care Florida, LLC, as the named insured. According to Ms. Fox, LRMC does not consider or rely upon a physician’s employment status when considering the granting of privileges. The Agreement between Dr. Puretz and CFH specifically contemplates that the services provided by Dr. Puretz include both hospital and outpatient services. It is Dr. Puretz’s understanding that he was acting as a federal employee under the contract with CFH when he was providing obstetrical services for the birth of Sophia.
The Issue At issue is whether David Britt, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Fundamental findings Petitioners, Sandra Britt nee Sandra Nap and Frank Britt, are the parents and natural guardians of David Britt, a minor. David was born a live infant on November 9, 1997, at Tampa General Hospital, a hospital located in Tampa, Florida, and his birth weight exceeded 2,500 grams. The physicians providing obstetrical services during David's birth included the attending physician, Catherine Lynch, M.D., an attending faculty physician with the University of South Florida, College of Medicine, as well as a number of resident physicians from the University of South Florida, College of Medicine. At the time, Dr. Lynch was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes, and the resident physicians, supervised by Dr. Lynch, were deemed participating physicians under the provisions of Section 766.314(4)(a), Florida Statutes.2 Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, NICA has concluded that David suffered a "birth- related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, proposes to accept the claim as compensable under the Plan. NICA's conclusion is grossly consistent with the proof and, consequently, its proposal to accept the claim as compensable is approved. Notice of Plan participation While the claim qualifies for coverage under the Plan, Petitioners have responded to the healthcare providers' claim of Plan immunity by contending that the hospital and the attending physician3 failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether, as alleged by the healthcare providers, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, supra. As a prelude to resolving the notice issue, it is noted that Mrs. Britt received her prenatal and intrapartum care at the Genesis Clinic (an obstetric and gynecologic health care facility) and Tampa General Hospital (TGH), facilities owned and operated by the Hillsborough County Hospital Authority. Pertinent to this case, the proof demonstrates that TGH manages the clinic, and provides the necessary nursing and clerical workers; however, prenatal care and intrapartum care are provided, pursuant to an "affiliation agreement," by physicians (faculty and resident) associated with the University of South Florida, College of Medicine, Department of Obstetrics and Gynecology, who are employed by the Florida Board of Regents. Regarding her prenatal care, the proof demonstrates that Mrs. Britt's initial visit to the Genesis Clinic occurred on March 26, 1997.4 Typically, such a visit would include registration, financial consultation, a tour and orientation, and prenatal lab work. Here, as would be expected, Mrs. Britt initially presented to the front desk where she registered (signed in) and provided certain basic information about herself to complete a patient profile. Following completion of the patient profile, Mrs. Britt presented to the financial counselor, whose office was adjacent to the front desk and faced the patient waiting area. During the course of that meeting, the proof demonstrates that the financial counselor (Norma Kringel, currently known as Norma Kringel Tooley) reviewed Mrs. Britt's patient profile and, apparently satisfied that Mrs. Britt was Medicaid eligible, provided her with a packet (a plastic bag) containing various samples and child care information, as well as a Genesis Social Assessment form to complete. Following completion of that form, the financial consultant provided Mrs. Britt with a brochure prepared by NICA titled "Peace of Mind for an Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Notably, the brochure included the following language: You are eligible for this protection if your doctor is a participating physician in the Association. Membership means that your doctor has purchased this benefit for you in the event that your child should suffer a birth-related neurological injury, which qualifies under the law. Notwithstanding, while the consultant encouraged Mrs. Britt to read the brochure, she did not identify the physicians who would be providing Mrs. Britt's obstetrical care or advise her (as she easily could have) that the physicians who would be providing such care were participants in the Plan.5 The next step in the process presents the most problematic issues with regard to notice. According to the proof, at the conclusion of her meeting with the financial consultant, a new patient, such as Mrs. Britt, was directed to the patient waiting area, where she was to await the health education coordinator (Patricia Ogden, R.N.) for an orientation tour of the facility and classroom presentation. According to Nurse Ogden, it was her established procedure to collect the new patients in the waiting area, and then proceed with a tour of the facility, explaining the various services that were available, followed by a classroom session. During the course of the tour, it was Nurse Ogden's practice to explain to the patients that TGH provides prenatal care at the clinic in "affiliation" with the University of South Florida, College of Medicine, and that the physicians who would be providing obstetrical care were residents (M.D.s) now specializing in obstetrics and gynecology and that their services were under the direct supervision of an attending faculty physician. During the classroom session, it was Nurse Ogden's practice to, inter alia, hold up the "Peace of Mind" brochure to ensure that each new patient had one, explain that the affiliated group of physicians from the University of South Florida who would be providing their obstetric care were participants in the Plan, and advise the patients that if they had any questions regarding the Plan they should consult with their physicians. Following the classroom session, the new patients would then proceed to the final stage of their initial visit, prenatal lab work. From the routine practice established by the clinic for an initial visit by new patients, Intervenors suggest it is reasonable to infer that Mrs. Britt participated in the tour and classroom session, and was therefore informed as to the identity of her physicians (as a group) and that they were participants in the Plan. As additional proof that Mrs. Britt participated in the tour and classroom session, Intervenors point to the Progress Notes of Mrs. Britt's initial visit of March 26, 1997, which contains a check mark next to an item titled "Orientation tour and class session attended by patient," signed by Nurse Ogden. Notably, however, Nurse Ogden took no roll call or otherwise identified the patients who accompanied her on the tour or participated in the classroom session, and executed the Progress Notes confirming a patient's attendance on the tour and at the classroom session based solely on a list of new patients who had registered (signed in) at the reception desk that day. Consequently, the Progress Notes provide no independent or compelling proof, distinguishable from that which might be inferred from the clinic's routine practice, that Mrs. Britt attended the orientation tour and class session on March 26, 1997. Contrasted with the conclusion Intervenors would suggest be drawn from the Clinic's routine procedure for new patients, Mrs. Britt testified that she did not participate in an orientation tour and class session, and was never informed that the physicians who would provide her obstetrical care were participants in the Plan.6 As independent evidence that she did not follow the routine established for new patients, Petitioners point to the clinic's records, which reveal that she did not, as would be routine, present for prenatal lab work on March 26, 1997, but returned to the clinic on March 27, 1997, for that lab work. Given the proof, it cannot be resolved with any degree of confidence that, more likely than not, Mrs. Britt attended the orientation tour and classroom session. Consequently, since the tour and classroom session was the only occasion (apparent from the record) that patients were advised that their physicians were participants in the Plan, it must be resolved that the proof fails to support the conclusion that Mrs. Britt was ever provided notice that her physicians were participants in the Plan. While the proof failed to demonstrate that Mrs. Britt received notice on behalf of the participating physicians, it did demonstrate that TGH provided timely pre-delivery notice to Mrs. Britt, as envisioned by Section 766.316, Florida Statutes. In this regard, the proof demonstrated that on October 19, 1997, during the course of pre-registration at TGH, Mrs. Britt was again given a copy of the brochure (prepared by NICA) titled "Peace of Mind for an Unexpected Problem," which, as previously noted, contained a concise explanation of the patients' rights and limitations under the Plan.