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 Based on the stipulation of the parties, the following facts are found: Ameni Selmi and Mondher Tahar Ghali are the parents and legal guardians of Oubey, and are the “Claimants” as defined by section 766.302(3). Oubey incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), on or about January 25, 2018, which was the sole and proximate cause of Oubey’s medical condition. Oubey died during the pendency of this action on June 24, 2020. At birth, Oubey weighed 3,770 grams. Shereen Oloufa, M.D., rendered obstetrical services in the delivery of Oubey and, at all times material to this action, was a “participating physician” as defined in section 766.302(7). Orlando Health Central is a hospital located in Ocoee, Florida, and is the “hospital,” as that term is defined in section 766.302(6), where Oubey was born. Petitioners filed a Petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (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.
The Issue Whether Loren Romine, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' recovery, through settlement of a civil action for medical malpractice against the treating obstetrician and hospital, bars them from recovering benefits under the Plan.
Findings Of Fact Findings related to compensability John Romine and Rebecca Romine are husband and wife, as well as the natural parents and court-appointed guardians of the property of Loren Romine (Loren), a minor. Loren was born January 26, 1998, at Columbia Regional Medical Center - Oak Hill, a hospital located in Brooksville, Hernando County, Florida, and her birth weight exceeded 2,500 grams. The physician providing obstetrical services at Loren's birth was Samir Shakfeh, 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 have suffered 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." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes. Here, the parties have stipulated, and the proof is otherwise compelling, that Loren sustained a "birth-related neurological injury," as that term is defined by the Plan. Findings related to the settlement of the civil action On December 29, 1998, the Romine family served a Notice of Intent to Initiate Litigation, pursuant to Section 766.106, Florida Statutes, on Dr. Shakfeh and Columbia Regional Medical Center - Oak Hill. At the conclusion of the 90-day pre-suit screening period, both the doctor and the hospital denied the claim and on April 12, 1999, the Romine family filed suit against the doctor and the hospital in the Circuit Court of Hernando County. That case was styled John Romine and Rebecca Romine, as parents and next friends of Loren Romine, a minor, and John Romine and Rebecca Romine, individually, Plaintiffs, v. HCA Health Services of Florida, Inc., d/b/a Columbia Regional Medical Center - Oak Hill, and Samir Shakfeh, M.D., Defendants, Case No. 99-857-CA01-Law. Both the doctor and the hospital denied liability and raised, as an affirmative defense, Plan immunity. Petitioners replied to that defense, and alleged that the doctor and the hospital failed to provide notice as required by the Plan. Section 766.316, Florida Statutes. On November 29, 2000, the hospital filed a Motion to Abate the civil action until the Romines filed a petition for Plan benefits with the Division of Administrative Hearings and an administrative law judge had resolved whether Loren had suffered a compensable injury and whether the doctor and the hospital had complied with the notice provisions of the Plan. 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.") The Motion to Abate was never set for hearing, and the case proceeded to mediation on December 7, 2000. Following mediation, the Romine family, the doctor, and the hospital, as well as the doctor's and the hospital's malpractice insurance carriers, reached an agreement to settle the civil suit. The settlement provided for an immediate cash payment to John Romine, Rebecca Romine, and Loren Romine, and the purchase of annuities for each of them. The total present value of the settlement was $5,250,000. The written agreement between the Romines and the hospital included the following stipulation: The parties agree that no part of the Settlement is intended to impair in any manner plaintiff's rights to pursue NICA benefits nor is it intended to be a release of any NICA benefits that may be due plaintiffs. It has always been and remains the position of the Defendant that this claim is covered by NICA. The Defendant agrees that it will take no action and refrain from doing anything to defeat or disparage plaintiff's NICA claim in any way . . . . The written settlement agreement between the Romines and the doctor contained a similar stipulation. On or about January 18, 2001, the Romines filed a Petition for Approval and Apportionment of Settlement Involving Minor in the civil suit. And, on or about January 23, 2001, the Guardian Ad Litem filed a written report with the court, and recommended approval of the settlement and apportionment of the settlement as proposed by the Romines. A hearing was held before the trial court on January 26, 2001, and on the same date the trial court entered an order granting the Petition for Approval and Apportionment of Settlement. The order further provided, as follows: 3. Nothing about this settlement is intended by the parties or this Court to limit or reduce the amount of compensation which may be recoverable by the Petitioners or LOREN ROMINE in a subsequent NICA proceeding, or from any other governmental program or private health insuror. NICA was not a party to the settlement agreements entered into between the Romine family and the healthcare providers, nor was it advised of and nor did it participate in the hearing on the Petition for Approval and Apportionment of Settlement. After the settlement was approved by the trial court, the settlement funds were disbursed to the Romines and releases were exchanged. Petitioners filed their claim for benefits under the Plan on June 14, 2001, seeking actual expenses for, inter alia, Loren's medical and hospital care, and a lump sum award to Mr. and Mrs. Romine of $100,000.
The Issue Whether Jacqueline Simone Jackson (Jacqueline), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). If so, whether Petitioners' settlement of a civil suit against the hospital where Jacqueline was born for negligence associated with her birth bars them from recovery of an award under the Plan. Whether the participating physicians complied with the notice provisions of the Plan.
Findings Of Fact Findings related to compensability Tracie Turner Jackson and Ulysses Bernard Jackson are the natural parents and guardians of Jacqueline Simone Jackson, a minor. Jacqueline was born a live infant on December 8, 1999, at Orlando Regional Healthcare System, d/b/a Arnold Palmer Hospital for Women and Children (Arnold Palmer Hospital), a licensed hospital located in Orlando, Florida, and her birth weight exceeded 2,500 grams. The physicians providing obstetrical services at Jacqueline's birth were Alejandro J. Pena, M.D., and Marc W. Bischof, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, the parties have stipulated, and the proof is otherwise compelling, that Jacqueline suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat. The settlement with Arnold Palmer Hospital In 2002, Tracie Turner Jackson and Ulysses Bernard Jackson, individually and as parents and natural guardians of their minor daughter, Jacqueline Simone Jackson, Plaintiffs, filed a medical malpractice claim arising out of the birth of Jacqueline against Orlando Regional Health Care System, Inc., d/b/a Arnold Palmer Hospital for Women and Children; Alejandro J. Pena, M.D.; Marc W. Bischof, M.D.; Physician Associates of Florida, Inc.; T. Zinkil, R.N.; S. Furgus, R.N.; Nancy Ruiz, R.N.; L. Baker, R.N.; T. Flyn, R.N.; and Nancy Ostrum, R.N., Defendants, in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, Case No. 2002-CA-6770 Div. 34. A settlement was reached with Arnold Palmer Hospital, but the case against Dr. Pena, Dr. Bischof, and Physician Associates of Florida, Inc., remained pending.3 Given Petitioners' settlement with Arnold Palmer Hospital, and the provisions of Section 766.304, Florida Statutes (1999)4("An action may not be brought under ss. 766.301- 766.316 if the claimant recovers or final judgment is entered."), Petitioners and Respondent stipulated that "Petitioners are not entitled to any actual payment or award from NICA, even if a finding is made that the claim is compensable and adequate notice was given." (Petitioners' letter of November 18, 2004, filed November 19, 2004, and Respondent's letter of November 16, 2004, filed November 16, 2004.) The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the physicians' claim of Plan immunity by averring that the participating physicians who delivered obstetrical services at Jacqueline's birth (Doctors Pena and Bischof) failed to comply with the notice provisions of the Plan. Consequently, it is necessary to resolve whether either participating physician gave the required notice. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 880 So. 2d 1253 (Fla. 1st DCA 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same). At all times material hereto, Section 766.316, Florida Statutes, prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable. Responding to Section 766.316, Florida Statutes, NICA developed a 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. (See, e.g., Petitioners' Exhibit 2, the NICA brochure, "This brochure is prepared in accordance with the mandate of [Section] 766.316, Florida Statutes.") Findings related to the participating physicians and notice Mrs. Jackson received her prenatal care at the Longwood Center, one of 7 offices in the Orlando area operated by Physician Associates of Florida (PAF), a group practice comprised of 35 physicians, including 16 obstetrician- gynecologists. (See, e.g., Intervenors' Exhibits 1, 2, 4, and 6.) At the time, four obstetricians staffed the OB-GYN department at the Longwood Office, Dr. Marc Bischof, who provided obstetrical services during Jacqueline's birth; Dr. Robert Bowels; Dr. Peter Perry; and Dr. Jose Lopez-Cintron. However, as a group practice, all obstetricians rotated delivery calls at the hospital, so it was possible, as occurred in this case with Dr. Pena, that a doctor from a different office would participate in the delivery. Notably, all obstetricians associated with PAF were participating physicians in the Plan. On April 12, 1999, Mrs. Jackson presented to the Longwood Center for her initial visit. At the time, consistent with established routine, the receptionist provided Mrs. Jackson with a packet of information that included a number of forms for her to complete and sign, including: a Patient Information form; a Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form; a Triple Test Form (a screening test for Down's Syndrome); a Prenatal Diagnosis Screening Questionnaire; and a Notice to Obstetrical Patient (to acknowledge receipt of the NICA brochure that was, indisputably, included in the packet). The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by Physician Associates of Florida prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that [5] is 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), 1435 Piedmont Drive East, Suite 101, Tallahassee, Florida 32312 1-800-398-2129. I further acknowledge that I have received a copy of the brochure prepared by NICA. DATED this day of , 199 . Signature (NAME OF PATIENT) Social Security No.: Attest: (Nurse or Physician) Date: Mrs. Jackson completed each of the forms, including the Notice to Obstetric Patient, by providing the requested information, and then signing and dating the forms. (Petitioners' Exhibit 1). Here, there is no dispute that Mrs. Jackson signed the Notice to Obstetric Patient or that she received a copy of the NICA brochure on her initial visit. There is likewise no dispute that, given the blank space, the notice form was inadequate to provide notice that Dr. Bischof, Dr. Pena, or any obstetrician associated with PAF was a participating physician in the Plan. Rather, what is disputed is whether, as contended by Intervenors, Mrs. Jackson was told during her initial visit that all obstetricians in PAF were participants in the Plan.6 Regarding Mrs. Jackson's initial visit, the proof demonstrates that, following completion of the paperwork, Mrs. Jackson was seen by Nurse Posey for her initial interview. Typically, such visits lasted approximately 45 minutes, with 30 minutes spent reviewing the patient's history, as well as the paperwork she received in the packet, and 15 minutes spent on a physical examination. According to Nurse Posey, she conducted a minimum of two initial prenatal interviews daily, five days a week, and followed the same procedure during each interview. As described by Nurse Posey, during the initial interview she always discussed each form (the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, Consent for Human Immunodeficiency Virus (HIV) Antibody Testing form, and the Notice to Obstetric Patient) individually, and when the form had been discussed she would co-sign the form. (Transcript, pp. 65- 68) Moreover, as for the NICA program, Nurse Posey always confirmed that the patient had received the NICA brochure, and told the patient that PAF's obstetrical service was "a group practice; that anyone in the group could do the delivery; and that each member of the group was a participant in the NICA program." (Transcript, pp. 68-70) Finally, Nurse Posey documented her routine through an entry on the prenatal flow sheet (Intervenors' Exhibit 6), which noted she had provided the patient information on the various tests, as well as the NICA brochure and notification. Here, that entry read: "Pt given info on diet, exercise, HIV screening, triple test, NICA pamphlet & notification & cord blood storage." (Petitioners' Exhibit 1, Intervenors' Exhibit 6, and Transcript, pp. 70-78.) In this case, Nurse Posey was confident she had followed her routine, since she would not have co-signed the various documents, such as the Notice to Obstetric Patient, or made the entry on the prenatal flow sheet unless she had done so. In response to the evidence offered by Intervenors on the notice issue, Mrs. Jackson testified there was never a discussion of the NICA program, and she was never told the physicians associated with PAF's obstetrical program were participating physicians in the Plan. However, Mrs. Jackson acknowledged that Nurse Posey questioned her regarding her medical history, and that she explained the Prenatal Diagnosis Screening Questionnaire, the Triple Test Form, and the HIV form. (Transcript, pp. 141-145) As for the Notice to Obstetric Patient, Mrs. Jackson initially denied having read it; then testified she may have read it "briefly," but "didn't go into details" or "seek out specifics"; and finally stated she could not remember reading the form, but could not deny that she may have read it. (Transcript, pp. 150, 151, 156-159) Here, giving due consideration to the proof, it must be resolved that the more persuasive proof supports the conclusion that, more likely than not, Nurse Posey, consistent with her routine, discussed the NICA program with Mrs. Jackson on her initial visit, and informed Mrs. Jackson that the physicians associated with PAF's obstetrical program were participating physicians in the Plan. In so concluding, it is noted that, but for the NICA program, Mrs. Jackson acknowledged Nurse Posey otherwise followed her routine; that it is unlikely, given such consistency, Nurse Posey would not have also discussed the NICA program; that Nurse Posey, as was her routine, co-signed each of the forms she discussed with Mrs. Jackson, including the Notice to Obstetric Patient; that Nurse Posey, as was her routine, documented her activity on the prenatal flow sheet; and that Mrs. Jackson evidenced little recall of the documents she signed or the discussions she had with Nurse Posey. Finally, Nurse Posey's testimony was logical, consistent, and credible, whereas Mrs. Jackson's testimony was often equivocal. Jurisdiction
The Issue Whether Tristan Bennett, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physician provided 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 Stipulated facts Robert Bennett and Tammy Bennett are the natural parents of Tristan Bennett, a minor. Tristan was born a live infant on September 26, 2001, at St. Vincent's Medical Center, a licensed hospital located in Jacksonville, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tristan's birth by William H. Long, 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. Mrs. Bennett's antepartum course and Tristan's birth The accident Mrs. Bennett's antepartum course was without apparent complication until approximately 7:05 a.m., September 26, 2001, when Mrs. Bennett was involved in a motor vehicle accident in Macclenny, Florida, when the right front tire of the SUV she was driving at low speed slid into a drainage ditch in front of her home and struck a culvert, flattening the tire.2 At the time, the fetus was at term (38+ weeks' gestation), with an estimated delivery date of October 8, 2001. However, given a previous cesarean section and breech presentation, Mrs. Bennett was scheduled to have a cesarean section at St. Vincent's Medical Center on October 3, 2001. Baker County Emergency Medical Services (EMS) responded to the scene, and following arrival (at 7:15 a.m.) noted a chief complaint of lower back and abdominal pain. Assessment revealed the abdomen to be soft, but tender. Mrs. Bennett was immobilized supine on a backboard, provided oxygen (O2) by nasal cannula (nc), and transported to Ed Fraser Memorial Hospital (also known as Baker County Community Hospital) in Macclenny.3 The Ed Fraser Memorial Hospital admission Mrs. Bennett arrived at Ed Fraser Memorial Hospital at 7:33 a.m. Initial vital signs were obtained at 7:42 a.m., showing a blood pressure of 134/101, heart rate of 108, and oxygen saturation of 97%. Chief complaint when triaged at 7:45 a.m., was noted as "MVA Restrained G[ravida]3 P[ara]2 back/abd[ominal] pain." She was noted to be alert and cooperative, with coherent speech, and physical examination was within normal limits. Cheryl Kennedy, R.N., an ER nurse in the Ed Fraser Memorial Hospital emergency department, used a handheld Doppler to evaluate fetal heart tones "[i]mmediately upon the patient arriving in the emergency room." Mrs. Kennedy testified that her note "FHT 118 (placenta)" on the Triage Sheet meant that "[t]he sound from the Doppler was more indicative that that was the placenta that we were picking the heart rate up from, versus from the fetus." Stated otherwise, the entry most likely reflected a maternal heart rate and not a fetal heart tone (FHT). (Exhibit 14, pages 10, 11, and 42). At 8:00 a.m., Mrs. Bennett was evaluated by the emergency room physician, Wayne Oberti, M.D. Dr. Oberti's history documented a complaint of lower back pain, denial of abdominal pain, minimal chest tightness, no neck pain, no change in vision, and the development of some nausea, vomiting and diarrhea over the course of her admission. Dr. Oberti's physical examination noted the abdomen as soft, nontender; that movement of the right lower extremity precipitated low back pain; and that he was unable to identify fetal heart beat (FHB) with handheld Doppler.4 Other findings were not shown to be remarkable. A one-view lumbar spine x-ray and pregnancy sonogram for fetal heart rate (FHR) were ordered by Dr. Oberti. Mrs. Bennett was removed from the backboard after Dr. Oberti's examination, and at 8:10, following an episode of vomiting, was taken to x-ray via stretcher, where she had an x- ray of her lumbar spine (that was unremarkable). Then Mrs. Bennett was moved into the hallway, where she waited on the stretcher for the sonogram. There she had an episode of nausea, vomiting and diarrhea, was cleaned and taken into a room for the sonogram, and then returned to the emergency room at 9:00 a.m. The extent of Mrs. Bennett's sonogram is a subject of controversy. One film/sheet containing six sonogram images exists for the sonogram study. Each of the images on the film contain the time the image was taken. The first image was timed at 8:45 a.m., and the last image was timed at 9:00 a.m. Two of the six images contain a fetal heart rate, the first reading being 146 beats per minute and the second reading, obtained at 9:00 a.m., being 133 beats per minute, all within normal limits (120 to 160 beats per minute). However, Jessica Knabb, the ultrasound technician, testified it was likely more images were obtained, since there were usually four to five sheets for such a study. (Exhibit 15, page 7). Moreover, at the time it was the hospital's policy to provide the original films if a request to review the study was made by third parties, and the study was requested on a number of occasions. (Exhibit 21). Therefore, it is likely that some of the films from the sonogram study (taken after Mrs. Bennett's episode of nausea and before the film that exists for 8:45 a.m., to 9:00 a.m.) are missing. Although the film of record documents a reassuring fetal heart rate, Dr. Oberti testified that he was advised by "whoever answered the phone in the ER" that the sonogram study revealed a heart rate in the 80s, and he so documented the report on the Emergency/Outpatient Department record as "FHR 80s" and initiated Mrs. Bennett's transfer via helicopter (LifeFlight) to St. Vincent's Medical Center for presumed "fetal distress." The Physician Certificate of Transfer, signed by Dr. Oberti at 9:10 a.m., noted the availability of labor and delivery services, with fetal monitoring and back-up surgical services at St. Vincent's Medical Center, as the reasons for transfer. (Exhibit 16, pages 22, 23, and 79; Exhibit 3). Before transfer, and following her return to the emergency room at 9:00 a.m., Mrs. Bennett was given O2 via nc, normal saline (NS) by IV for hydration, Phenergan for nausea, and a Foley catheter was placed in preparation for her transfer to St. Vincent's Medical Center by LifeFlight. Notably, the records of Baker County EMS and Ed Fraser Memorial Hospital make no mention of Mrs. Bennett being in labor, Dr. Oberti and Mrs. Bennett were of the opinion she was not in labor,5 and monitoring on presentation to St. Vincent's Medical Center, discussed infra, provides support for their opinions. LifeFlight LifeFlight arrived at Ed Fraser Memorial Hospital at 9:25 a.m., and departed with Mrs. Bennett at 9:41 a.m. The LifeFlight records note that Mrs. Bennett complained of high abdominal pain and low back pain following a car accident at a low rate of speed in which she was a restrained driver. The LifeFlight record then states: . . . Pt was taken to x-ray for a sonogram at which FHT were noted to be in the 80's for about a 10 min. period. . . . It was determined that there was fetal distress and LifeFlight was called for emergent transport. Notably, the LifeFlight records do not reflect where the information regarding the "10 min. period" of fetal bradycardia came from, and LifeFlight personnel did not recall who provided the information. Moreover, Dr. Oberti denied that a fetal heart rate in the 80s was ever reported for a 10 minute period, and the hospital records contain no such documentation. (Exhibit 16, pages 32 and 33; Exhibit 3). The LifeFlight records also state that Dr. Oberti performed a vaginal/cervical examination of Mrs. Bennett at Ed Fraser Memorial Hospital: . . . Cervical exam done by Dr. Oberti at 0800 with report of 2cm dilation and no drainage or bloody show. However, Dr. Oberti denied having performed a vaginal examination of Mrs. Bennett, and the hospital records contain no such documentation. (Exhibit 16, pages 38, 53, and 74; Exhibit 3). Here, there is no reason to question the integrity and professionalism of the LifeFlight paramedics. Indeed, they had no apparent reason to fabricate the information reported and the most likely source of the information was hospital personnel. However, under the circumstances, that does not make the information reliable and it remains hearsay which, there being no apparent exception to its admissibility, cannot support a finding of fact. § 120.57(1)(c), Fla. Stat. ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") St. Vincent's Medical Center Mrs. Bennett's transfer via LifeFlight was without incident, and at 9:59 a.m., she was admitted to labor and delivery at St. Vincent's Medical Center and placed on external fetal monitoring. At the time, an "irritable" uterus was noted, with contractions of mild intensity, lasting 30-45 seconds, consistent with placental abruption (at an unknown stage) and not labor.6 Fetal monitoring was reassuring, with a fetal heart rate baseline in the 150s, with average long-term variability and accelerations present. Mrs. Bennett was continuously monitored until 12:47 p.m., when fetal monitoring was discontinued and she was taken to the operating room for a cesarean section delivery. During that period, Mrs. Bennett's contractions were always mild, and did not increase in intensity, did not increase in duration, and demonstrated a pattern consistent with an irritable uterus due to placental abruption, unlikely to produce cervical change.7 Stated otherwise, the record reveals that, more likely than not, Mrs. Bennett was not in labor, when monitoring was discontinued at 12:47 p.m., or, there being no persuasive evidence to support a contrary conclusion, thereafter.8 During the same period, fetal monitoring continued to reveal a reassuring fetal heart rate, with a fetal heart rate baseline in the 160s, with average long-term variability.9 Of note, Dr. Long wrote an Admit Note at 12:15 p.m., which stated: C[hief]/c[omplaint]/ A[utomobile]A[ccident] this AM H[istory] 31 y[ear] o[ld] G[ravida]3 P[ara]2 L[ast]M[enstrual]P[eriod] = 12-31-00 = EDC 10-8-01 [with] E[stimated]G[estational]A[ge]38 wks S[tatus]/P[ost] previous C[esarean]/S[ection] involved in single car A[utomobile]A[ccident] this AM [with] blunt trauma from steering wheel to abd[omen]. Pt was taken by rescue to Frazier Memorial Hosp where eval showed no evidence of sig[nificant] trauma but ? FHT to 80 B[eats]P[er]M[inute]. Pt sent to St V's by helicopter. On arrival here F[etal]H[eart]T[ones] in 150's. Pt c[omplained]/o[f] uterine c[ontraction] & vague discomfort. She has sl[ight] lower back pain. Fetus is active. No vag[inal] bleeding or ROM. P[ast]M[edical]H[istory] Migraines . . . Exam [Blood pressure] 131/86 [Pulse] 87 [Temperature] 99.2 {Respirations] 18 F[etal]H[eart]T[ones] 150-160's . . . Abd[omen] F[undal]H[eight][consistent with] term [gestation] Breech Sl[ightly] tender diffusely. C[ervi]x Post[erior] 1-2 [cm dilated] 30[% effaced] -3 [station] BR[eech] Ext(remities] w[ithin]n[ormal]l[imits] E[lectronic]F[etal]M[onitor] [shows] mild [every] 1-2 min ctx F[etal]H[eart]T[ones] 160. Ass[essment]: Previous C[esarean]/S[ection] at term; Breech; A[utomobile]A[ccident] with ? abruption. Plan: Will proceed with repeat C/S . . . (Exhibit 7; Exhibit 20, pages 40-42). Of further note, Dr. Long wrote an addendum at 12:40 p.m., which stated: Pt has had no urine output since admission. Foley has been replaced [with] only small am[ount] of blood tinged fluid. U[ltra]/S[ound] ? [shows] no fluid vis[ible] in bladder. * * * Ass[essment]: No urine output. Prob[able] adeq[uate] hydration R[ule]/O[ut] Bladder injury; R[ule]/O[ut] developing anemia ? hypovolemia ? ?U[rinary]O[utput]. Pl[an]: Will repeat CBC, PT PTT. Will proceed [with] C[esarean]/S[ection] & abd[ominal] exploration & eval[uation] g[enito]u[rinary] for poss[ible] trauma. With regard to Tristan's delivery, the medical records reveal that at 1:16 p.m., the operation started (the incision was made/delivery began); at 1:21 p.m. Mrs. Bennett's membranes were ruptured, with clear fluid noted; and at 1:22 p.m., Tristan was delivered without difficulty or trauma. Evidence of a partial placental abruption was noted. At delivery, Tristan did not cry, had minimal respiratory effort, and required resuscitation, with bulb, free flow oxygen, mechanical suction, and bag and mask ambu. Apgar scores of 6 and 8 were reported at one and five minutes respectively.10 Cord blood gas revealed profound metabolic acidosis, with an arterial cord pH of 6.76, PCO2 51.2, PO2 of 17, and a base excess (BE) of -28. Venous cord pH was reported as 7.18, PCO2 as 46.6, PO2 as 20 and BE as -10.3. Following delivery, Tristan was transferred to the newborn nursery, where she was received at 1:45 p.m., and placed on a heated warming table. Initial assessment noted slight wetness throughout lung fields, bilateral chest rise, tachypnea, no nasal flaring, occasional expiratory grunting, no retractions, pale pink color with slight acrocyanosis, and improving tone. Arterial blood gas collected at 1:47 revealed a pH of 7.14, PO2 of 90, PCO2 of 31.7, and BE of -16.4. Under the circumstances, Tristan was transferred to the special care nursery for further management, due to moderate respiratory distress and metabolic acidosis. Tristan was admitted to the special care nursery at 2:10 p.m., and placed on a radiant warmer. Initial assessment noted oxygen saturation (SaO2) at 97% on room air; color pale, pink; mild grunting, with slight retractions; and moderate lethargy. Tristan was provided respiratory support (NS bolus, free flow oxygen, and O2 via nc) and bicarbonate therapy; her respiratory distress and metabolic acidosis resolved fairly quickly; and by 9:30 p.m., her respiration was noted as unlabored, skin remained pale/pink, and she was sleeping quietly. Tristan's subsequent neonatal course The medical records related to Tristan's subsequent neonatal course reveal that prior to her pulmonary arrest on October 3, 2001, Tristan suffered from renal failure and acute tubular necrosis (ATN), with resulting oliguria, fluid retention, and hyponatremia; respiratory distress; elevated liver enzymes; and was placed on empiric antibiotics for possible sepsis. However, while Tristan's metabolic acidosis and multi-organ system failure support the conclusion she suffered a hypoxic ischemic insult before, during, and likely immediately following delivery, physician progress notes during the days following her delivery repeatedly document the absence of neurologic involvement or neurological damage. Pertinent entries read: [9/28/01] PE: pink, alert, active . . . appears clinically stable. [9/28/01 3:15 p.m.] Neuro grossly intact, symmetric exam, no focal deficits . . . Suspect renal failure/ATN, and probably . . . hyponatremia . . . Suspect must have suffered some asphyxia damage in MVA. [9/29/01 7:45 a.m.] Neuro-Active Alert . . . [9/30/01 5:30 p.m.] No evidence of CNS [central nervous system] dysfunction at present. [10/1/01 10:05 p.m.] Neuro grossly intact . . . (8)Asphyxia - infant [with] S[ymptoms] C[onsistent]/w[ith] asphyxial/hypoxic organ damage. Remains in ATN, oliguric phase, [with] blood, pro[ein] in urine. Creatinine cont to increase. LFT's also elevated, though actually improving. No other organ damage evident @ this time. * * * (10) CNS - No neuro abnormalities noted . . . . [10/2/01 11:45 a.m.] No focal neuro deficits, Active & Alert . . . . (8) Asphyxia: Multiorgan failure . . . . (10) CNS No obvious neuro abnormalities. [10/3/01 a.m.] #8 Asphyxia: Multiorgan involvement . . . . No evidence of CNS involvement. On October 3, 2001, at approximately 9:30 a.m., the Special Care Nursery Flow Sheet documents that Tristan suffered from a pulmonary hemorrhage, with frank blood noted orally, and a moderate amount of blood was suctioned by bulb. At 10:30 a.m., Tristan was noted to be apneic (not breathing), with a heart rate below 80 beats per minute and slowly decreasing; oxygen saturation (SaO2) was decreasing to the 40 percent (%) range; and a large amount of frank blood was noted coming from the mouth. At 11:00 a.m., Tristan was intubated, placed on a ventilator, and received transfusions of red blood cells and fresh frozen plasma beginning at 11:18 a.m. and 11:30 a.m., respectively. At 3:00 p.m., Tristan's heart rate was noted in the 40s, with saturations at 45%, and suctioning obtained a large amount of blood-tinged mucous. At 3:23 p.m., Tristan's heart rate was 53, saturations decreased from 40% to 23%, and CPR, with Ambu and chest comparisons, was begun. At 3:26 p.m., CPR was stopped; at 3:27 p.m., heart rate was noted at 77 and saturations at 68%; and at 3:29 p.m., heart rate was noted at 90, slowly increasing to 108, and saturations at 65%. Tristan's arterial blood gas collected at 3:34 p.m., showed a pH of 7.03 and a BE of -12.2. At 3:39 p.m., a large amount of thick, blood-tinged mucous was again suctioned, and at 3:43 p.m., more blood-tinged mucous was suctioned. At 3:48 p.m., Tristan's heart rate had decreased to 28, and her saturations to 39%. By 3:55 p.m., Tristan's heart rate had increased slowly to 66, and saturations to 50%, and at 3:57 Tristan's heart rate had increased to 132, and saturations to 89%. Arterial blood gas collected at 4:10 p.m., showed a pH of 6.88 and a BE of -23.5. Tristan remained critically unstable throughout the rest of the day and evening of October 3, 2001, and between 11:20 p.m., and 11:30 p.m., staff noted the likely onset of seizure activity ("Baby having stiffening of legs & arm trembling."). Physician's Progress notes document additional neurologic abnormalities following the October 3 arrest and resuscitation: [10/4/01 11:20 a.m.] Possible seizure last night . . . #10 CNS: Had no obvious CNS dysfunction till last night. [10/5/01 11:00 a.m.] CNS tremors on PB [Phenobarbital] . . . EEG in progress. Dr. Gama consulted office aware. ? Seizures Encephalopathy? (P) Neuro consulted . . . CT when stable. A neurological consult by Dr. Gama on October 5, 2001, describes Tristan's hospital course leading up to the October 3, 2001, arrest and then states: The baby developed thrombocytopenia and then progressively started bleeding with associated pulmonary bleeding. This was controlled with appropriate ventilatory support; however, a second episode of pulmonary hemorrhage occurred, this time associated with significant decline and requiring some resuscitation. This occurred on 10/3. The patient following this was noted to have some jerking movements of her extremities which were easily controlled with pressure. However because of her clinical decline, it was felt that this represented seizure activity. The baby was bloused with phenobarbital. The level was followed but because of recurrence of these symptoms, the patient was rebolused today. The patient's phenobarbital is 23 today. An electroencephalogram has been obtained but is still pending in its results. Neurologic consultation is obtained. * * * PHYSICAL EXAMINATION: The patient's examination demonstrates a head circumference of 33.5 cm. The baby is sedated, intubated, and with an umbilical catheter in place. The head demonstrates a normotensive anterior fontanelle. The sutures are unremarkable. There is some scalp edema secondary to slight fluid overload most likely secondary to her renal disease process. Pupils were 1 mm and equal. Doll's eyes were present. The patient's sucking reflex is decreased. Rooting reflex is decreased. She is intubated through her mouth. The patient's motor examination shows that she is floppy with decreased muscle tone throughout, retraction response is absent, head control is absent, motor reflex is absent. The baby withdraws extremities to touch. The deep tendon reflexes are hypoactive. Babinski could not be elicited. Palmar and plantar grasp are decreased. Spine shows no particular abnormalities . . . . IMPRESSION New onset seizures most likely secondary to multiple factors including: Status post pulmonary hemorrhage. Hypoxic ischemic encephalopathy. Metabolic as well as possible dysmorphogenic causes. Rule out central nervous system hemorrhage. Acute tubular necrosis secondary to hypotension, metabolic acidosis and possibly hypoxemia. Liver dysfunction. Disseminated intravascular coagulation. Status post metabolic acidosis. Status post hypertension. Status post maternal motor vehicle accident and trauma . . . . CT scan performed October 29, 2001, showed multicystic encephalomalacia of the cortex. EEG's performed October 5, 2001, October 8, 2001, October 17, 2001, and November 2, 2001, were all abnormal, showing background disorganization suggestive of diffuse cerebral dysfunction. Tristan was discharged home on November 14, 2001, with follow-up appointments with her primary care physician (Carithers Pediatrics), as well as nephrology (for renal status), neurology (Dr. Gama), and physical and occupational therapy. Thereafter, on November 27, 2001, Dr. Gama reported the results of a follow-up neurologic evaluation to Tristan's pediatrician (Dr. Julie Baker), and concluded: In general, it is my opinion that Tristan is status post severe perinatal distress with hypoxic ischemic encephalopathy, metabolic acidosis, associated with coagulopathy and complicated with one cardiac arrest requiring resuscitation while at the special care nursery. The result of all these complications is culminated with what appears to be a severe hypoxic ischemic encephalopathy with multicystic encephalomalacia and seizure disorder . . . (Exhibit 10). 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired."11 § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, it is undisputed that Tristan suffered brain injury, caused by oxygen deprivation, which rendered her permanently and substantially mentally and physically impaired. What must be resolved is whether the record supports a conclusion that, more likely than not, such injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. As to that issue, Petitioners were of the view that while Tristan may have suffered oxygen deprivation at St. Vincent's Medical Center between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved from labor and delivery to the operating room for a cesarean section delivery) and 1:22 p.m., September 26, 2001 (when Tristan was delivered), Mrs. Bennett was never in labor, and Tristan did not suffer neurologic injury or evidence profound neurologic impairment ("permanent and substantial mental and physical impairment") until after her pulmonary arrest on October 3, 2001. In contrast, NICA was of the view that Tristan's neurologic impairments resulted from a brain injury caused by oxygen deprivation (secondary to a partial placental abruption), that occurred following the automobile accident the morning of September 26, 2001, and prior to her transfer from Ed Fraser Memorial Hospital to St. Vincent's Medical Center, and that Mrs. Bennett was not in labor at the time. Finally, Intervenors were of the view that Tristan suffered a brain injury, and profound neurologic impairment, caused by oxygen deprivation at St. Vincent's Medical Center between 12:47 p.m. and 1:22 p.m., that Mrs. Bennett was in labor when the fetal monitor was disconnected, and that injury likely continued into the immediate postdelivery period. (Prehearing Stipulation). The statutory presumption Pertinent to this case, Section 766.309(1)(a), Florida Statutes, provides: . . . If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2). "Claimant," as that term is used in the Plan, is defined by Section 766.302(3), to mean: . . . any person who files a claim pursuant to s. 766.305 for compensation for a birth related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof. Notably, in this case it is not the Petitioners (Claimants) who seek the benefit of the presumption, but the Intervenors, who urge its application over Petitioners' objection. Consequently, it must be resolved whether any party, other than Petitioners (Claimants) may claim the presumption (i.e., that the injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period"). If so, it must then be resolved whether there was credible evidence produced to support a contrary conclusion and, if so, whether absent the aid of such presumption the record demonstrates, more likely than not, that Tristan's injury occurred during labor, delivery, or resuscitation.12 The ultimate goal in construing a statutory provision is to give effect to legislative intent. Bellsouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003). "In attempting to discern legislative intent, we first look to the actual language used in the statute." Id. at 289. "If the statutory language used is unclear, we apply rules of statutory construction and explore legislative history to determine legislative intent." Id. at 289. "Ambiguity suggests that reasonable persons can find different meanings in the same language." Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992). "[I]f 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." Crutcher v. School Board of Broward County, 834 So. 2d 228, 232 (Fla. 1st DCA 2002). Here, the language chosen by the legislative is clear and unambiguous. The presumption is for Petitioners' (Claimants') benefit, and is not available to aid other parties in satisfying their burden to establish that Tristan's brain injury occurred in the course of labor, delivery, or resuscitation. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal."). Moreover, there was credible evidence produced (in Tristan's medical records) to support a contrary conclusion, and to require resolution of the issue without regard to the presumption. The likely timing of the brain injury that rendered Tristan profoundly, neurologically impaired To address the cause and timing of Tristan's neurologic impairment, the parties offered the medical records related to Mrs. Bennett's antepartal course, as well as those associated with Tristan's birth and subsequent development. Additionally, the parties offered the deposition testimony of many of the health care providers who were involved with Mrs. Bennett's care on September 26, 2001, and Tristan's birth. Finally, the parties offered the testimony of four expert witnesses to support their respective positions. Offered by Petitioners was the testimony of Richard Fields, M.D., a physician board-certified in obstetrics and gynecology, and Norman Pryor, M.D., a physician board-certified in pediatrics and pediatric nephrology; offered by Respondent was the testimony of Donald Willis, M.D., a physician board-certified in obstetrics and gynecology, and maternal-fetal medicine; and offered by Intervenors was the testimony of Gary Hankins, M.D., a physician board-certified in obstetrics and gynecology and maternal-fetal medicine. Oddly, no party offered the testimony of a neurologist or neonatologist to address, apart from the observations of the health care providers who were involved in Tristan's care, the likely timing of the brain injury that rendered Tristan profoundly, neurologically impaired. The medical records, as well as the testimony of the physicians and other witnesses, have been thoroughly reviewed. Having done so, it must be resolved that the record developed in this case compels the conclusion that, more likely than not, Tristan suffered multi-system failure as a consequence of the oxygen deprivation she suffered between 12:47 p.m. (when the fetal monitor was disconnected and Mrs. Bennett was moved to the operating room) and 1:22 p.m. (when Tristan was delivered), that likely continued during the immediate postdelivery resuscitative period. However, it is unlikely Tristan suffered a brain injury or substantial neurologic impairment until after she experienced profound episodes of oxygen deprivation on October 3, 2001, following the onset of pulmonary hemorrhaging and pulmonary arrest. In so concluding, it is noted that Tristan was delivered atraumatically, she responded rapidly to resuscitation immediately after delivery, her neurologic examinations during the first seven days of life were normal, she suffered prolonged and severe decreases in fetal heart rate and saturations on October 3, 2001, she manifested prolonged and severe acidosis following her arrest, and she evidenced seizure activity and neurologic decline thereafter. Given the proof, it is likely, more so than not, that Tristan's profound neurologic impairments resulted from a brain injury caused by oxygen deprivation that occurred October 3, 2001, and not during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Consequently, Tristan was not shown to have suffered a "birth-related neurological injury" as defined by the Plan, and the claim is not compensable. § 766.302(2), Fla. Stat. See also Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words written, the oxygen deprivation or mechanical injury must take place during labor and delivery, or immediately afterward."). The notice issue Apart from contesting compensability, Petitioners also sought the opportunity to avoid a claim of Plan immunity in a civil action, by requesting a finding that the notice provisions were not satisfied by the health care providers. 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 hospital and the participating physician 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 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[13] 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 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), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients.14 (Exhibit 4 to Exhibit 25). Findings related to notice Mrs. Bennett received her prenatal care at St. Vincent's Division I, one of a number of offices in the Jacksonville area operated by North Florida OB/GYN, a group practice comprising numerous physicians. At the time, three obstetricians who delivered babies were on staff at St. Vincent's Division I: Dr. William Long, Dr. Thomas Virtue, and Dr. Scott Wells. Dr. Long, who had delivered Mrs. Bennett's two previous children (boys, born in 1993 and 1997), was Mrs. Bennett's primary ob/gyn. However, as a group practice, all physicians rotated delivery calls at the hospital, so it was possible another physician would participate in the delivery. Consequently, a patient commonly saw all the delivering physicians during prenatal care. Notably, all physicians associated with the St. Vincent's Division I, who delivered babies, were participating physicians in the Plan. On February 5, 2001, Mrs. Bennett presented to St. Vincent's Division I for her initial prenatal visit. At the time, consistent with established routine, Kathryn Becker, R.N., the OB care coordinator, met with Mrs. Bennett to discuss her case, take a patient history, and provide her with a number of forms to complete and sign, including: a Consent for Obstetrical Delivery form; Florida's Healthy Start Prenatal Risk Screening Instrument; a Consent for Human Immunodeficiency Virus form; a Genetic Screening Supplement; and a Notice to Obstetric Patient form (to acknowledge receipt of the NICA brochure) and a NICA brochure. The Notice to Obstetric Patient provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by North Florida OB/GYN prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that they are a participating practice in the 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 , 2001. Attest: ____ Signature of Patient Nurse/Physician (Name of Patient) Printed Date: Social Security Number Witness to Signature Mrs. Bennett signed the form, acknowledging receipt of the NICA brochure and Nurse Becker witnessed her signature. Here, there is no dispute that Mrs. Bennett signed the Notice to Obstetric Patient or any debate that she received a copy of the NICA brochure on her initial visit. Rather, what is at issue is whether the form, which provides "I have been furnished information by North Florida OB/GYN prepared by the Florida Birth-Related Neurological Injury Compensation Association, and have been advised that they are a participating practice in the program," coupled with what Mrs. Bennett was told during her initial visit, was adequate to place Mrs. Bennett on notice that Dr. Long was a participant in the Plan. As described by Nurse Becker, during the course of the initial visit, her custom and practice when discussing NICA was to inform the patient that "all of the doctors in our practice that deliver babies participate" and then "explain the pamphlet . . . [,] point out the information inside, that it tells them briefly about it [,and] [t]he back tells them who it's with and how to contact them." Here, Nurse Becker is confident she followed her routine, since she witnessed Mrs. Bennett's signature on a number of documents, including the Notice to Obstetric Patient, and documented her routine through an entry on the ACOG Antepartum Record. That entry read "NOB [new obstetric] Interview [with] PNV, PNL, Consents, NICA, Healthy Start, prentatal education & literature completed; PTL, SAB & safety info given." (Exhibit 25, pages 6, 15, and 39; Exhibit 1 to Exhibit 25). Giving due consideration to the proof, it must be resolved, contrary to Petitioners' view, that the Notice to Obstetric Patient, although it did not specifically name St. Vincent's Division I, was not misleading, and that when coupled with Nurse Becker's disclosure that "all of the doctors in our practice that deliver babies participate," was adequate to place Mrs. Bennett on notice that all physicians at that office who delivered babies participated in the Plan. In so concluding, it is noted that Mrs. Bennett had been a patient of Dr. Long's for an extended period, that all her prenatal care was at St. Vincent's Division I, and the only logical conclusion a reasonable person could draw from receiving this information was that Dr. Long and the other physicians in the office who did deliveries were participating physicians. Accordingly, the proof demonstrates Dr. Long satisfied the notice provisions of the Plan. See Jackson v. Florida Birth-Related Neurological Injury Compensation Association, 932 So. 2d 1125 (Fla. 5th DCA 2006). In all, Mrs. Bennett had 14 prenatal visits at St. Vincent's Division I, with the last two being on September 18 and 24, 2001. Of note, on September 18, 2001, Mrs. Bennett, who had a previous cesarean section (with her second child) and presented with a breech, voiced her election to proceed with a repeat cesarean section. Accordingly, she met with staff at St. Vincent's Division I that day, staff coordinated with St. Vincent's Medical Center, and surgery was scheduled for October 3, 2001. Notably, there is no proof that at any time prior to her admission of September 26, 2001, Mrs. Bennett visited or otherwise contacted St. Vincent's Medical Center. At or about 9:59 a.m., September 26, 2001, Mrs. Bennett was admitted to labor and delivery at St. Vincent's Medical Center for monitoring, and at or about 11:20 a.m., she was formally admitted. At that time, her attending nurse, Christine May, R.N., provided Mrs. Bennett with a number of forms to sign, including a Consent to Anesthesia, Parental Acknowledgment of Preventative Safety Measures, and a Notice to Obstetric Patient (to acknowledge receipt of the NICA brochure) and a NICA brochure. The Notice to Obstetric Patient provided: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by St. Vincent's Medical Center prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that Dr. Long[15] is a participating physician in the 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 , 2001. Signature of Patient (Name of Patient) Printed Social Security Number Witness to Signature Attest: Nurse or Physician Date: Mrs. Bennett signed the form, acknowledging receipt of the NICA brochure, and Nurse May witnessed her signature. Here, Petitioner contends that "[g]iven the fact that Mrs. Bennett had pre-registered for her scheduled cesarean section delivery, it was practicable for St. Vincent's Medical Center to have given Mrs. Bennett notice of NICA participation prior to two hours before delivery." Therefore, Petitioners conclude, "St. Vincent's Medical Center failed to comply with the notice provisions of the Plan." (Petitioners' Proposed Final Order on Compensability and Notice, paragraph 54). However, as previously noted, the scheduling of Mrs. Bennett's cesarean section with St. Vincent's Medical Center was done by staff at St. Vincent's Division I, and there is no proof that Mrs. Bennett visited or had any contact with St. Vincent's Medical Center. Accordingly, the notice provided Mrs. Bennett on September 26, 2001, was timely, as prior notice was not practicable.16
