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DANIELLE FAIVUS AND SCOTT FAIVUS, AS PARENTS AND NATURAL GUARDIANS OF THE PERSON, RYDER FAIVUS, ON BEHALF OF DANIELLE FAIVUS AND SCOTT FAIVUS INDIVIDUALLY AND ON BEHALF OF RYDER FAIVUS, A MINOR, AND REBECCA G. DOANE ET AL. vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 16-003998N (2016)

Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Jul. 11, 2016 Number: 16-003998N Latest Update: Aug. 22, 2017

The Issue The issue in this case is whether Wellington Regional Medical Center provided the notice required by section 766.316, Florida Statutes.

Florida Laws (11) 395.002, 766.301, 766.302, 766.303, 766.304, 766.305, 766.309, 766.31, 766.311, 766.314, 766.316

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JUANITA RUIZ AND MIGUEL ANGEL RUIZ, AS PARENTS AND NATURAL GUARDIANS OF MICHAEL A. RUIZ, A MINOR, AND JUANITA RUIZ AND MIGUEL ANGEL RUIZ, INDIVIDUALLY vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 03-002749N (2003)

Division of Administrative Hearings, Florida Filed:Miami, Florida Jul. 28, 2003 Number: 03-002749N Latest Update: Dec. 10, 2007

The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether notice was accorded the patient, as contemplated by Section 766.16, Florida Statutes (Supp. 1998), or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (Supp. 1998), or the giving of notice was otherwise not practicable.

Florida Laws (11) 120.68, 395.002, 766.301, 766.302, 766.303, 766.309, 766.31, 766.311, 766.312, 766.314, 766.316

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NINOSHKA RIVERA, AS PARENT AND NATURAL GUARDIAN OF KEVIN TERRON-OTERO, A MINOR vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 11-004320N (2011)

Division of Administrative Hearings, Florida Filed:Orlando, Florida Aug. 22, 2011 Number: 11-004320N Latest Update: Jan. 08, 2016

The Issue The issues in this case are: (1) For the purposes of determining compensability, whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital; and (2) 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)(b), Florida Statutes, or the giving of notice was not practicable.

Findings Of Fact While living in Puerto Rico, Ms. Rivera became pregnant. She had some prenatal care in Puerto Rico prior to moving to Florida in approximately August 2009. She had no prenatal care after coming to Florida until she presented at Osceola on October 21, 2009. In 2009, Osceola contracted with OB Hospitalists Group, LLC (OB Hospitalists), for hospital-based physicians for the provision and management of health care for Osceola's unassigned and emergent obstetrics and gynecology patients. The physicians provided by OB Hospitalists rotated so that a physician from OB Hospitalists was at Osceola at all times. Obstetric patients who did not have an obstetrician and presented to Osceola for obstetrical care would be seen by one of the physicians from OB Hospitalists. Although an obstetrical patient may see one physician from OB Hospitalists during a visit to the emergency room, the patient may see another physician from OB Hospitalists on another visit. The contract between OB Hospitalists and Osceola provided that OB Hospitalists and its representatives were providing services pursuant to the contract as independent contractors and not as "employees, agents, partners of, or joint ventures with" the hospital. The contract also provided that OB Hospitalists would provided medical malpractice coverage for the physicians it provided to Osceola. OB Hospitalists contracted with physicians to provide the services required under the agreement between Osceola and OB Hospitalists. Among the physicians who contracted with OB Hospitalists to provide services to Osceola were Dr. Maki and Dr. Ojeda. OB Hospitalists required its physicians to participate in the NICA Plan and paid their annual assessments for participation in the NICA Plan. In October and November 2009, Dr. Maki provided hospital-based physician services at Osceola pursuant to the contract between Osceola and OB Hospitalists. During this time, he was a participating physician in the NICA Plan, and his assessment was paid by OB Hospitalists. He was a physician licensed in Florida and was practicing obstetrics on a full-time basis. Osceola is a licensed hospital in Florida as evidenced by its license numbers listed on the Hospital Assessment and Record and Admittance form, Joint Exhibit 31, J0925. Osceola paid its 2009 assessment for the NICA Plan. Ms. Rivera, whose primary language is Spanish, presented at the Osceola emergency room on October 21, 2009, complaining of abdominal cramping. She was accompanied by her mother, Jeanette Rivera. A security guard, who spoke Spanish, translated Ms. Rivera's communications to the hospital secretary on duty. Ms. Rivera filled out a sign-in sheet for emergency services upon arrival at the hospital. The form requested that she state her name, address, social security number, telephone number, date of birth, and reason for the visit. Ms. Rivera wrote her name and address on the form. The security guard placed Ms. Rivera in a wheelchair and wheeled her to the nurses' station, where he left her. The triage nurse note on the sign-in sheet indicated that Ms. Rivera had no known allergies and had been taking prenatal vitamins. Ms. Rivera was seen by Dr. Maki on her visit on October 21, 2009, but he did not admit her to the hospital. She was discharged with nurse's instructions, which were in Spanish. Sari Falcon was an out-patient registrar employed by Osceola who was on duty on October 21, 2009, and registered Ms. Rivera. As an out-patient registrar, it was Ms. Falcon's responsibility to collect demographic information, to get the patients to sign the condition of admission form, to verify insurance, and to schedule, if necessary. Ms. Falcon's family is from Puerto Rico, and she is fluent in Spanish, which is her first language. Although Ms. Falcon does specifically remember registering Ms. Rivera, Ms. Falcon has certain practices to which she adheres during the registration process. One of her practices is to converse in Spanish with patients who speak only Spanish. If the patient is an obstetric patient whose pregnancy is over 20 weeks, Ms. Falcon takes the patient to the labor and delivery department to complete the registration process. Ms. Falcon's initial registration of an obstetrical patient occurs during one interaction/transaction, and all pages are reviewed, signed, and witnessed by her during that single transaction. One of her duties is to prepare a registration form or face sheet which contains demographic and other information about the patient. She verifies the information on the registration form with the patient. The registration form for Ms. Rivera indicated that Ms. Rivera was unemployed, that her insurance was in the form of Medicaid, her last menstrual cycle was February 9, 2009, and that she did not have a primary or family physician. The form shows that the person registering Ms. Rivera is Ms. Falcon. On October 21, 2009, Ms. Rivera signed the Conditions of Admission and Consent for Medical Treatment form, which Ms. Falcon presented to Ms. Rivera. Ms. Rivera also initialed a part of the form, indicating that she was given the opportunity to read and ask questions about the information on the form and that she either had no questions or her questions had been answered. Ms. Rivera also initialed the form indicating that she did not have an executed Advance Directive and did not desire to execute one. By her initials, Ms. Rivera also acknowledged that she had received a copy of the hospital's Notice of Privacy Practices. Ms. Falcon signed the Conditions of Admission and Consent for Medical Treatment, indicating that she had witnessed Ms. Rivera signing the form. When Ms. Falcon presents the consent form to a patient, she goes over the information on the form with the patient prior to the patient signing the form. If the patient speaks only Spanish, Ms. Falcon goes over the material in Spanish. She explains the part of the form, which requires the patient to indicate by initialing the appropriate box, whether the patient has an Advance Directive, does not have an Advance Directive and would like to get information on Advance Directives, or does not have an Advance Directive and does not wish to execute one. Another of Ms. Falcon's responsibilities is to give the obstetric patients she registers a copy of the brochure prepared by the Association (NICA brochure). If the patient speaks only Spanish, Ms. Falcon would provide a copy of the NICA brochure which is written in Spanish. Ms. Falcon explains to the patient what the NICA brochure is. Ms. Falcon has the patient sign an acknowledgment form in Ms. Falcon's presence, showing the patient received the NICA brochure. Ms. Rivera executed an acknowledgment form dated October 21, 2009. The form, which is written in English, states: I acknowledge that I have received the Florida Birth Related Neurological Injury Compensation Plan brochure. I acknowledge and understand that I may contact the Florida Birth Related Neurological Compensation Association about the details of the plan at 1-800-398-2129. Ms. Rivera printed her name on the line which had "Print Name" underneath it and signed her name on "Signature" line underneath it. Dr. Maki does not speak English. He did not give Ms. Rivera a NICA brochure on October 21, 2009, and did not advise Ms. Rivera that he was a participating physician in the NICA Plan. Additionally, Ms. Rivera was not advised on October 21, 2009, that any of the obstetric physicians which OB Hospitalists provided to Osceola were participating physicians in the NICA Plan. Ms. Rivera's testimony concerning her October 21, 2009, visit to Osceola is not credible. There are many inconsistencies in Ms. Rivera's testimony, and some of Ms. Rivera's testimony is contradicted by her own mother, who was present at all times during the October 21, 2009, visit. Ms. Rivera stated that the only person who spoke Spanish to her at the hospital, aside from her mother, was the security guard. She also testified that she did not speak, read, or understand English on October 21, 2009. However, she contradicted herself when she testified that she knew what "name" and "address" meant in English because she learned that in school. Ms. Rivera also said that she was able to understand the words "print name" and "signature" because she had signed forms written in English in Puerto Rico with similar requirements. In her deposition, Ms. Rivera's mother testified that a female nurse spoke to them in Spanish after Ms. Rivera was told that she would be discharged and that another nurse came in with some documents for Ms. Rivera to sign. In her deposition, Ms. Rivera testified that the doctor gave her the Conditions of Admission and Consent to Treat form for her to sign, showed her where to initial the appropriate boxes, and said, "Sign and this is to have your baby." At the final hearing, Ms. Rivera changed her testimony and testified that Ms. Falcon gave her the form and told her where to sign and initial. At the final hearing, Ms. Rivera testified that on October 21, 2009, Dr. Maki gave her the acknowledgement form to sign indicating that she had received the NICA brochure and told her where to print her name and where to sign her name. Ms. Rivera's mother testified that Ms. Rivera did not sign any documents in the presence of the doctor and that the doctor only examined Ms. Rivera. In her deposition, Ms. Rivera denied receiving discharge instructions in Spanish and denied signing the discharge instructions. At the final hearing, Ms. Rivera acknowledged that she received the discharge instructions at her October 21, 2009, visit and that she signed the discharge documents. An interpreter was present at the depositions of both Ms. Rivera and her mother and translated from English to Spanish and from Spanish to English for their benefit. An interpreter was also present at the final hearing and translated from English to Spanish and from Spanish to English for their testimonies. Much of the information that is contained on the Registration Form, Joint Exhibit 1, J0003, would require that it be communicated to someone at the hospital. Information such as Ms. Rivera's mother's name and address, the employment status of Ms. Rivera, the date of Ms. Rivera's last menstrual period, and the lack of a primary care or family physician could only have come from Ms. Rivera or her mother, who speaks only Spanish. This information was not contained on the sign-in sheet that Ms. Rivera filled out with the help of the security guard. There is also information that is contained on the OB Triage form that had to have been communicated by Ms. Rivera to the staff at the hospital. Such information includes whether Ms. Rivera had certain allergies, the time of the day that Ms. Rivera's cramping began, pain of three on the pain scale, use of prenatal vitamins, and her level of education. The OB Triage form also stated that Ms. Rivera's primary language was Spanish and that an interpreter would be needed. There is no reason for the triage nurse to make up this information. Ms. Falcon always follows the procedure discussed above when registering obstetric patients, which is the same procedure outlined in Osceola's printed policies. There is no dispute that she speaks fluent Spanish, and there would be no logical reason that she would not speak Spanish to a patient who speaks only Spanish, particularly in a hospital with a 90 percent population of Spanish-speaking patients. Additionally, Ms. Falcon signed the Conditions of Admissions and Consent to Treatment form, as a witness to Ms. Rivera's signature. Ms. Rivera signed the form acknowledging that she received the NICA brochure. The greater weight of the evidence establishes that Ms. Rivera did receive a NICA brochure from Ms. Falcon on October 21, 2009; Ms. Falcon explained in Spanish to Ms. Rivera about the NICA brochure; and Ms. Falcon had Ms. Rivera sign a form acknowledging her receipt of the NICA brochure. On November 4, 2009, Ms. Rivera again presented to the Osceola emergency room at 9:40 a.m., complaining of abdominal cramps "all night long" and leakage of clear vaginal fluid since 9:00 a.m. The OB Triage note stated that Ms. Rivera was having moderate contractions every two to three minutes with a duration of 30 to 50 seconds. Dr. Maki admitted her to the hospital at 2:40 p.m. At 6:06 p.m., Dr. Maki artificially ruptured Ms. Rivera's membranes. Dr. Maki did not advise Ms. Rivera on November 4, 2009, that he was a participating physician in the NICA Plan and did not provide Ms. Rivera with a NICA brochure. After Dr. Maki's shift ended, Dr. Ojeda took over the care of Ms. Rivera. Dr. Ojeda, a licensed physician in Florida, was also an independent contractor with OB Hospitalists. On November 4, 2009, he was a participating physician in the NICA Plan and was practicing obstetrics on a full-time basis. His NICA assessment for 2009 was paid by OB Hospitalists. Dr. Ojeda arrived at Osceola on November 4, 2009, at 7:15 p.m., and first came in contact with Ms. Rivera at 7:26 p.m. At that time Ms. Rivera's membranes had been ruptured, her contractions were coming every one to two minutes, and the duration of the contractions was 60 seconds. Dr. Ojeda did a vaginal examination and reviewed the fetal heart rate tracings. According to Ms. Rivera's mother, when Dr. Ojeda first saw Ms. Rivera, the baby's hair was visible in the birth canal. Petitioner's expert, Berto Lopez, M.D., was of the opinion that at the time that Dr. Ojeda first saw Ms. Rivera, that it was not an appropriate time to transfer Ms. Rivera to another hospital and a new obstetrician. Dr. Ojeda speaks Spanish. When he first met Ms. Rivera, he advised her that he was a participating physician in the NICA plan, and gave her a NICA brochure in Spanish. He regularly keeps NICA brochures with him when he is on duty. Dr. Ojeda noted in the physician's progress notes that he informed Ms. Rivera at 7:40 p.m., that he was an active member of the NICA Plan. When Ms. Rivera came to Osceola on November 4, 2009, a fetal monitor was attached to her to monitor the heart rate of the baby. A normal fetal heart rate is between 120 and 160 beats per minute. Kevin's baseline fetal heart rate was 150 beats per minute. A little after 10:00 a.m., the fetal heart strip registered a variable deceleration of Kevin's heart rate that went down to 90 beats per minute. At approximately 2:14 p.m., the heart decelerated to about 75 beats per minute, which was followed by another deceleration to about 60 beats per minute at 2:19 p.m. From approximately 2:20 p.m., until 8:06 p.m., Kevin experienced small fetal heart rate decelerations, which evidenced an overall poor fetal heart rate variability. At approximately 8:06 p.m., Kevin's heart rate decelerated to about 60 beats per minute and then returned quickly to baseline. Decelerations continued, and at approximately 8:44 p.m., the variable fetal heart rate decelerations became severe and consistent. At this point, Kevin suffered oxygen deprivation. At 9:27 p.m., Dr. Ojeda delivered Kevin. He weighed 3,290 grams. At the time of birth, Kevin had poor muscle tone, no cry, and no respiratory effort and required three minutes of positive pressure ventilation with bag and mask. His Apgar scores at one, five, and ten minutes were two, five, and seven, respectively. At birth the umbilical cord ph was 7.05, which demonstrated that Kevin had acidosis at time of delivery. Acidosis is a sign of oxygen deprivation. After delivery, Kevin was taken to the nursery, at which time the post-delivery resuscitation had ended. His color was pale. Dr. Medina was notified of the delivery and status of Kevin. Dr. Medina ordered laboratory work to be done. About an hour after delivery, blood was drawn. Kevin had a platelet count of 117,000, which is low. Kevin was bathed while in the nursery. Around midnight of November 5, 2009, attempts were made to feed Kevin, and he did not tolerate feeding. At this time, the nurse noted that Kevin had odd movements, his left arm was straight, and his hand was in a tight fist. He had a facial grimace with his mouth slanting to the right side. At 12:23 a.m., the nurse noted that Kevin continued to have odd movements to the right side with arm straightening and fist clenched. His head was turned to the right side. He had a facial grimace with a droop to the right side, and his eyes were turned upward to the right side. His oxygen saturation was down to 82 percent. Dr. Medina, who was notified of Kevin's condition, ordered a consult. No evidence was presented to establish that Dr. Medina or J. Rapha Medical, P.A., provided obstetric services to Ms. Rivera. It was not established that Dr. Medina was a participating physician in the NICA Plan or that J. Rapha Medical, P.A., participated in the NICA Plan. No evidence was presented that either Dr. Medina or J. Rapha Medical, P.A., gave notice they participated in the NICA Plan. Dr. Pera, a neonatologist, was called on consult. Neither Dr. Pera nor Pediatrix rendered any obstetric services to Ms. Rivera. The evidence did not establish that Dr. Pera or Pediatrix participated in the NICA Plan or that they gave notice to Ms. Rivera that they participated in the NICA Plan. At 12:35 p.m., Kevin was admitted to the neonatal intensive care unit, pursuant to orders from Dr. Pera. Kevin moved with both arms straightened and fist clenched. His eyes turned upward to the right side, and his mouth drooped to the right side. These symptoms are indicative of a seizure. His oxygen saturation dropped to the mid 70's. Orders were given for Phenobarbital, which was administered at 2:50 a.m. Kevin was transferred to the Winnie Palmer Hospital for Women and Babies (Winnie Palmer) at 6:45 a.m. Diagnostic studies were done at Winnie Palmer, which showed that Kevin had suffered from oxygen deprivation. The EEG was abnormal; MRI's showed multiple intracranial hemorrhages and a progression to diffuse cystic encephalomalacia; and CAT scans showed intracranial hemorrhage with enlarged ventricles and cystic encephalomalacia. Petitioner retained Robert Cullen, Jr., M.D. (Dr. Cullen), as an expert witness, and Respondent retained Dr. Donald Willis, M.D. (Dr. Willis), and Raymond Fernandez, M.D. (Dr. Fernandez), as expert witnesses. All doctors agree that Kevin sustained a brain injury during labor and delivery due to oxygen deprivation. Dr. Cullen believes that the brain injury, which occurred during labor and delivery, was a significant injury and that Kevin sustained a separate significant brain injury around midnight to 12:30 a.m., on November 5, 2009. He is of the opinion that Kevin's impairment is a result of the combination of the two injuries, and he cannot apportion the impairment between the two injuries. Dr. Cullen bases his opinion that a second injury occurred because Kevin had stabilized by the time that he was placed in the nursery and the seizure activity started over two hours after oxygen deprivation was sustained during labor and delivery. However, Dr. Cullen concedes that an infant may not always show symptoms of a permanent and substantial impairment within three hours of birth. Dr. Fernandez, Respondent's expert pediatric neurologist, opined that Kevin suffered brain injury during labor and delivery and that a brief period of stability after resuscitation is not unusual. He stated: [I]t's not uncommon at all for a baby to then stabilize for a period of time even after sustaining severe injury. There's sort of a period of time when people look pretty good after brain injury; that doesn't last too long. It might last minutes to hours, two or three or four hours, and then decline begins to occur. There are progressive changes that take place that mount gradually and eventually instability recurs, so that period of relative stability or stability immediately after initial resuscitation is not unusual. Dr. Fernandez's testimony is credited. Dr. Willis is of the opinion that the seizure episode that began around midnight to 12:30 a.m., on November 5, 2009, was a manifestation of the brain injury that was sustained during labor and delivery and that the seizure episode was not a separate injury from the oxygen deprivation which occurred during labor and delivery. His opinion is based on the severe and consistent variable heart rate decelerations that Kevin experienced intrapartum; the Apgar scores after birth; the poor respiratory effort after birth requiring positive pressure ventilation with a mask and bag; the low platelet count of 117,000 after delivery; and the low ph of 7.05 of the umbilical cord, indicating acidosis at the time of delivery. The testimony of Dr. Willis is credited. The greater weight of the evidence establishes that Kevin sustained an injury to his brain during labor and delivery due to oxygen deprivation and the seizures and brain hemorrhage after birth were a manifestation or continuation of the early injury and not a separate brain injury. The brain injury sustained during labor and delivery resulted in substantial and permanent mental and physical impairment to Kevin. Dr. Fernandez, was the expert retained by Respondent to opine on Kevin's impairments. Dr. Fernandez opined that Kevin has mental and physical impairments, which are both substantial and permanent. He described Kevin's condition at the time Kevin was examined by Dr. Fernandez on January 18, 2012, as follows: He's virtually non-interactive, responds very little to sound, but otherwise does not interact. He does not speak. I don't think that he has any understanding of language. He has very poor motor control. His head circumference, his brain is very small and there is cystic change within his brain and that's highly predictive of permanent impairment.

Florida Laws (14) 120.57, 395.002, 7.05, 766.301, 766.302, 766.303, 766.304, 766.305, 766.309, 766.31, 766.311, 766.314, 766.316, 90.406

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YAIMA OROZCO AND MAYKEL AMADOR, ON BEHALF OF AND AS PARENTS AND NATURAL GUARDIANS OF YAIKEL AMADOR, A MINOR vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 08-004985N (2008)

Division of Administrative Hearings, Florida Filed:Miami, Florida Oct. 08, 2008 Number: 08-004985N Latest Update: Apr. 05, 2012

The Issue Whether Yaikel Amador, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). Whether the hospital and the participating physicians provided the patient notice, as contemplated by Section 766.316, Florida Statutes (2006), or whether notice was not required because the patient had an "emergency medical condition," as defined by Section 395.002(8)(b), Florida Statutes (2006), or the giving of notice was not practicable.2

Findings Of Fact Stipulated facts related to compensability Petitioners, Yaima Orozco and Maykel Amador, are the parents and natural guardians of Yaikel Amador, a minor. Yaikel was born a live infant on May 20, 2007, at Kendall Regional Medical Center, a licensed Florida hospital located in Dade County, Florida, and his birth weight exceeded 2,500 grams. Yaikel died December 4, 2008. Obstetrical services were delivered at Yaikel's birth by Francisco G. Tudela, 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. Yaikel sustained a "birth-related neurological injury," 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 . . . of a live infant weighing at least 2,500 grams for a single gestation . . . at birth 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. At NICA's request, Donald Willis, M.D., an obstetrician/gynecologist, reviewed the medical records related to Yaikel's birth and subsequent development, and concluded that Yaikel suffered a "birth-related neurological injury." Dr. Willis summarized the basis for his conclusion, as follows: The mother, Yaima Orozco, was a 24 year old . . . with a known complete placenta previa and a prior Cesarean section delivery. Complete placenta previa was well documented by ultrasound during the pregnancy. Ultrasound also identified cleft lip and palate. Repeat Cesarean section delivery was scheduled for the placenta previa. However, a few days before the scheduled delivery, labor began with heavy vaginal bleeding. Hospital records indicate that labor started on the day of delivery (May 20, 2007) at 4:30 in the morning. Delivery occurred [at 7:28 a.m.] about [three] hours after the onset of labor. Cervical exam was not done on admission due to the known placenta previa. Fetal heart rate monitor on admission was abnormal with decreased variability and late decelerations. Uterine contractions were every 2 to 3 minutes. By the time the monitor was taken off for delivery, fetal bradycardia had developed with a heart rate of 80 bpm. Emergency Cesarean section was done for placenta previa in labor with active bleeding. Birth weight was 8 lbs 12 ozs (3,990 grams). The baby was depressed at birth with Apgar scores of 0/0/3/7. The newborn was limp with no respiratory effort or heart beat. CPR was performed for ten minutes before a heart rate was established. The initial blood gas after birth was severely acidotic with a pH of 6.54 and a BE-37.7. The mother lost an estimated 4,500 ml of blood at delivery and was given multiple blood transfusions. Hysterectomy was required. Maternal complications after delivery included DIC, hypovolemic shock, renal failure and adult respiratory distress requiring intubation. The mother survived a stormy post operative course. The baby had a complicated hospital course consistent with hypoxic brain injury. Discharge from the hospital was at 6 weeks of age. Head ultrasound on the day of birth showed slight echogenicity in the periventricular regions. Head ultrasound on DOL 9 showed brain edema with focal infarcts, consistent with hypoxic injury. CT on DOL 23 had extensive changes consistent with severe ischemic hypoxic encephalopathy. Pediatric Neurology office visit at 3 months of age lists diagnoses of spastic quadriparesis, global developmental delay and seizures. The child died on December 4, 2008 of complications related to brain injury and chronic lung disease. In summary: This pregnancy was complicated with a known placenta previa. Labor began with substantial bleeding and fetal distress. The baby was born severely depressed with no heart rate until ten minutes of life. Head ultrasound and CT scans after birth were consistent with hypoxic brain injury. This child suffered severe brain damage due to lack of oxygen during labor, delivery and the immediate post delivery period. (Respondent's Exhibit 1). Here, the parties have stipulated, and the proof is otherwise compelling, that Yaikel suffered a "birth-related neurological injury." Consequently, since obstetrical services were delivered by a "participating physician" at birth, the claim is compensable. §§ 766.309(1) and 766.31(1), Fla. Stat. The notice issue While the claim qualifies for coverage under the Plan, Petitioners would prefer to pursue their civil remedies, and avoid a claim of Plan exclusivity (immunity), as set forth in Section 766.303(2), Florida Statutes. Therefore, Petitioners have averred and requested a finding that the hospital (Kendall Regional Medical Center) and the obstetrician who provided Ms. Orozco's prenatal care (Armando de la Torre, M.D.) failed to comply with the notice provisions of the Plan. See Galen of Florida, Inc. v. Braniff, 698 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."). As for the delivering obstetrician (Dr. Tudela), the parties have stipulated he was not required to give notice because, at the time Ms. Orozco presented to the hospital on May 20, 2007, she had an "emergency medical condition," as defined in Section 395.002(9)(b), Florida Statutes (2006), and Dr. Tudela had no prior opportunity to provide notice. (Joint Pre-Hearing Stipulation; Dr. Tudela Exhibit 1). Consequently, it is necessary to resolve whether Kendall Regional Medical Center and Dr. de la Torre complied with the notice provisions of the Plan. § 766.309(1)(d), Fla. Stat. (2006)("[I]f raised by the claimant or other party, [the administrative law judge shall make] the factual determinations regarding [whether] the notice requirements in s. 766.316 are satisfied.").3 The notice provisions of the Plan At all times material hereto, Section 766.316, Florida Statutes (2006), 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 (2006), defined "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 or rupture of the membranes. The Plan does not define "practicable." However, "practicable" is a commonly understood word that, as defined by Webster's dictionary, means "capable of being done, effected, or performed; feasible." Webster's New Twentieth Century Dictionary, Second Edition (1979). See Seagrave v. State, 802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and ordinary meaning of words [in a statute] can be ascertained by reference to a dictionary."). The NICA brochure Responding to Section 766.316, Florida Statutes, NICA developed a brochure (as the "form" prescribed by the Plan), titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to the participating physicians and hospitals so that they could furnish a copy of it to their obstetrical patients. (Intervenor Exhibit 1 to Hospital Exhibit 2 (the deposition of Mayra Gonzalez)). Findings related to Ms. Orozco's prenatal care and notice Ms. Orozco received her prenatal care from Armando de la Torre, an obstetrician/gynecologist, who maintained an office for the practice of his profession at 7200 Northwest 7th Street, Suite 150, Miami, Florida. At the time, Dr. de la Torre was a sole practitioner, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan, and held staff privileges at, but was not an employee of, Kendall Regional Medical Center. Pertinent to the notice issue, the proof demonstrated that when Ms. Orozco presented to Dr. de la Torre's office on February 21, 2007, for her initial visit, the office had a routine pursuant to which all new obstetric patients were to be given a copy of the NICA brochure by the medical assistant who interviewed them, in this case Mayra Gonzalez, together with a NICA acknowledgment form (RECIBO DE AVISO DE PACIENTE DE OBSTETRICIA), which the patient was asked to complete (by printing her name, social security number, and date) and sign, acknowledging receipt of the NICA brochure and notice of Dr. de la Torre's participation in the Plan. (Hospital Exhibit 2 (the deposition of Mayra Gonzalez), together with Intervenor Exhibits 1 and 2 to that deposition). An Aids & HIV Informed Consent Form (HIV consent form) was also given to the patient to sign. (Petitioners' Exhibit D to Hospital Exhibit 2). According to Ms. Gonzalez, after she gave the patient the NICA brochure and the NICA acknowledgment form to complete and sign, she documented the lab record, under "32-36 WEEK LABS," next to the "NST" (nonstress test) line, with the notation "NICA" followed by the date. (Petitioners' Exhibit 3; Petitioners' Exhibit A to Hospital Exhibit 2). Here, Ms. Gonzalez testified she documented the lab record with the entry "NICA 2/21/07," in her own handwriting, and would not have done so had she not given Ms. Orozco a copy of the NICA brochure. Apart from the foregoing activities, Ms. Gonzalez also completed the first page of the Prenatal Record, except for limited information at the top of the form (related to the date, insurance, patient's name, social security number, age, date of birth, address, and phone number), and then referred the patient to Dr. de la Torre for her initial consultation. (Petitioners' Exhibit 4; a copy of the Prenatal Record is also included among the office records attached to Hospital Exhibit 2). According to Ms. Gonzalez, she paper clipped the NICA acknowledgment form and the HIV consent form together and placed them in the patient chart, to be later hole-punched and secured in the chart by a clerk. In contrast to the proof offered regarding Dr. de la Torre's office routine, Ms. Orozco testified that no one discussed the Plan with her, she did not receive a NICA brochure, she was not asked to sign a receipt for the brochure, and she was not advised of Dr. de la Torre's participation in the Plan. As for the HIV consent form, Ms. Orozco did not recall filling out such a form, but acknowledged the test was done with her consent. (Transcript, pp. 36 and 37). Notably, Ms. Orozco's chart does not include, as it should if the office routine was followed, a copy of the NICA acknowledgment form or the HIV consent form. Nevertheless, the Hospital and NICA contend there is no reason to conclude the office routine was not followed because the HIV analysis was performed and Ms. Gonzalez noted on the lab record that she had provided the NICA brochure to Ms. Orozco (by making the entry that read "NICA 2/21/07"). However, there was no showing that written consent, as opposed to oral consent, was required before an HIV analysis would be performed. See also §§ 381.004(3)(a) and 384.31, Fla. Stat. As for the probative value of the "NICA 2/21/07" entry on the lab record, Petitioners were of the view that such entry did not compare favorably with the acknowledged exemplars of Ms. Gonzalez's writing of the date "2/21/07" that appear on the Prenatal Record she completed, that such entry was likely entered by another person after Ms. Gonzalez's interview, and that such entry is not a reliable indication that the office practice was followed on Ms. Orozco's initial visit or that she was provided a NICA brochure. With regard to the absent NICA acknowledgment form and HIV consent form, there are two possible explanations. First, that such forms were never presented to Ms. Orozco. If that were the case, then the office practice was not followed, and it would be inappropriate to conclude, based on such practice, that Ms. Orozco was given a NICA brochure. A second possible explanation, given the office practice, is that for some inexplicable reason the forms were lost or misplaced. In that case, it would be appropriate to consider the office practice when resolving whether Ms. Orozco was given a NICA brochure. As an explanation for the missing documents, Dr. de la Torre and Ms. Gonzalez opined that they may have been lost, and pointed to the entry of "NICA 2/21/07" on the lab record as proof Ms. Gonzalez followed the office routine and that Ms. Orozco was likely given a copy of the NICA brochure. (Petitioners' Exhibit 1, pp. 33-35, 36, and 37; Hospital Exhibit 2, pp. 27-29). However, the entry of "NICA 2/21/07," which Ms. Gonzalez testified she made is troublesome. Notably, with specific regard to the numeral "2," and to a lesser extent with regard to the other numerals, the entry does not facially resemble the entries Ms. Gonzalez made on the Prenatal Record. Moreover, there being no evidence of a catastrophic event (i.e., wind or fire damage to the office) to account for the missing documents; the importance of the NICA acknowledgment form, and its retention with the medical records; the wealth of identifying information on the documents that makes it easy to assure they are properly filed; and the fact that patient records are kept in a secure area,4 compel the conclusion that it is more likely the forms were never presented to Ms. Orozco, then lost. Accordingly, on this record, it must be resolved that the proof failed to support the conclusion that, more likely than not, the office practice was followed or that Ms. Orozco was given a NICA brochure. Findings related to the hospital and notice On April 6, 2007, at the suggestion of Dr. de la Torre, Ms. Orozco presented to Kendall Regional Medical Center and pre-registered for Yaikel's delivery by cesarean section. At the time, Ms. Orozco was interviewed by a registration clerk, and signed a "Condiciones de admisión" (Conditions of admission) form. (Petitioners' Exhibit 8; Hospital Exhibit 6). However, Ms. Orozco was not given a NICA brochure or otherwise advised of the NICA program, although it was practicable to have done so. At 4:30 a.m., May 20, 2007, a few days before the scheduled delivery, labor began with heavy vaginal bleeding, and on the advice of Dr. Tudela, the physician on-call to cover Dr. de la Torre's patients,5 Ms. Orozco went to Kendall Regional Medical Center, where she was received at or about 6:02 a.m. At the time, Ms. Orozco had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (2006.)6 (Joint Pre-Hearing Stipulation; Dr. Tudela Exhibit 1). Dr. Tudela, like Dr. de la Torre, held staff privileges at, but was not an employee, of Kendall Regional Medical Center. Given Ms. Orozco's condition, a stat cesarean section delivery was called, and at 6:25 a.m., Ms. Orozco was asked to sign, and signed, a number of forms, including a Photography and Videotaping Guidelines in the Maternity Unit form, Consent for Operation form, Consent for Anesthesia form, and Consent for Transfusion form. (Petitioners' Exhibit 8, Orozco Bate Stamp Numbers 00165-00168). At 6:30 a.m., Ms. Orozco was asked to sign, and signed, a Notice to Obstetric Patient form, acknowledging that the hospital had provided her a copy of the NICA brochure. (Petitioners' Exhibit 8, Orozco Bate Stamp Number 00169; Hospital Exhibit 5). Ms. Orozco admits she signed the Notice to Obstetric Patient form, but credibly testified she did not read it because she was ill, and disputes that she was given a NICA brochure. Petitioners also contend the brochure, if given, was not provided a reasonable time prior to delivery to allow for the exercise of an informed choice of providers. As to this contention, Petitioners note that the hospital had an opportunity to provide meaningful notice during Ms. Orozco's pre-registration on April 6, 2007, but failed to do so, and that if a brochure was given to her after she presented in an emergency medical condition, it was not efficacious notice. Petitioners' contention is well-founded. 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."); Weeks v. Florida Birth- Related Neurological Injury Compensation Association, 977 So. 2d 616, 618 (Fla. 5th DCA 2008)("[NICA] notice must be given a reasonable time after the commencement of the [provider- obstetrical] patient relationship and . . . the failure to do so is not excused by the subsequent emergency."); Northwest Medical Center, Inc. v. Ortiz, 920 So. 781, 786 (Fla. 4th DCA 2006). ("Because the purpose of the notice is 'to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies,' . . . notice [given after a patient was admitted in an emergency medical condition] was ineffective . . . ."); University of Miami v. Ruiz, 916 So. 2d 865, 870 (Fla. 3d DCA 2005)("Although we concur that the provision of notice is excused when the patient presents in an emergency medical condition, we find that, if a reasonable opportunity existed to provide notice prior to the onset of the emergency medical condition, the participating health care providers' failure to do so will not be excused and the participating health care providers will lose their NICA Plan exclusivity."). Consequently, it must be resolved that having failed to take advantage of a reasonable opportunity to provide pre-delivery notice, the hospital failed to comply with the notice provisions of the Plan.

Conclusions For Petitioners: Deborah J. Gander, Esquire Ervin A. Gonzalez, Esquire Colson Hicks Eidson 255 Aragon Avenue, No. 200 Coral Gables, Florida 33134 For Respondent: David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest Sixth Court Plantation, Florida 33324 For Intervenor Kendall Regional Medical Center: Scott E. Solomon, Esquire Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A. Two Alhambra Plaza, Suite 750 Coral Gables, Florida 33134 For Intervenors Francisco G. Tudela, M.D., and Francisco G. Tudela, M.D., P.A.: Orlando R. Ruiz, Esquire Law Offices of Orlando R. Ruiz Offices at Pinecrest, Suite 200 7695 Southwest 104th Street Miami, Florida 33156

Florida Laws (12) 120.68, 381.004, 384.31, 395.002, 766.301, 766.302, 766.303, 766.309, 766.31, 766.311, 766.314, 766.316

Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

# 4

JOHN GARRETT PRICE AND MIRANDA E. PRICE, INDIVIDUALLY AND ON BEHALF OF AURORA PRICE, A MINOR vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, A/K/A NICA, 14-005123N (2014)

Division of Administrative Hearings, Florida Filed:Gainesville, Florida Oct. 27, 2014 Number: 14-005123N Latest Update: Aug. 17, 2016

The Issue The issue in this case is whether Intervenors provided notice as required by section 766.316, Florida Statutes, on behalf of both the hospital, and the physicians and nurse midwives, rendering obstetrical services to Petitioner, Miranda E. Price.

Florida Laws (11) 395.002, 766.301, 766.302, 766.303, 766.305, 766.309, 766.31, 766.311, 766.314, 766.316, 90.406

# 5

YVETTE ORTIZ AND ERICK ALBERTO ORTIZ, AS PARENTS AND NATURAL GUARDIANS OF ERICK ALEJANDRO ORTIZ, A MINOR vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 03-001710N (2003)

Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida May 09, 2003 Number: 03-001710N Latest Update: Mar. 06, 2006

The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether notice was accorded the patient, as contemplated by Section 766.316, Florida Statutes (2000),1 or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes, or the giving of notice was otherwise not practicable.

Findings Of Fact Findings related to compensability Yvette Ortiz and Erick Alberto Ortiz are the natural parents and guardians of Erick Alejandro Ortiz, a minor. Erick was born a live infant on December 18, 2000, at Northwest Medical Center, a hospital located in Broward County, Florida, and his birth weight exceeded 2,500 grams. Moulton Keane, 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(7), Florida Statutes, provided obstetrical services during the course of Mrs. Ortiz's labor, as well as Erick's delivery and resuscitation. Also providing obstetrical services during Mrs. Ortiz's labor was Alison Clarke-DeSouza, M.D.; however, Dr. DeSouza was not a participating physician in the Plan. When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury 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(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Erick suffered severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, the claim is compensable and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When, as here, it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes (2000), provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . . Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $1,258.16 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $7,500.00, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. 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 2000). 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, 29 Fla. L. Weekly D227a (Fla. 2d DCA Jan. 14, 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 29 Fla. L. Weekly D216 (Fla. 2d DCA Dec. 17, 2003)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 29 Fla. L. Weekly D226a (Fla. 2d DCA Jan. 14, 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 form (the NICA brochure), which contained an explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy it to their obstetrical patients. Findings related to notice Mrs. Ortiz received her prenatal care at South Florida Women's Health Associates, a group practice dedicated to obstetrics and gynecology. Tara Solomon, M.D., and Moulton Keane, M.D., were among the physicians who practiced with the group. Pertinent to the notice issue, the proof demonstrates that from March 25, 2000, the date of Mrs. Ortiz's first visit to South Florida Women's Health Associates, until her presentation at Northwest Medical Center on December 17, 2000, for Erick's birth, Mrs. Ortiz was primarily seen by Dr. Solomon, who was not a "participating physician" in the plan. However, on three occasions Mrs. Ortiz was seen by Dr. Keane: once when Dr. Solomon was not available for Mrs. Ortiz's regular appointment with Dr. Solomon, and thereafter on June 21, 2000, for an amniocentesis and on October 17, 2000, for an ultrasound. Notably, although Dr. Keane was a "participating physician" in the Plan, Mrs. Ortiz was never provided a copy of the NICA brochure or notice of Dr. Keane's participation in the Plan, either during her prenatal care or Erick's birth. Also pertinent to the notice issue, the proof demonstrates that on August 25, 2000, Mrs. Ortiz presented for pre-registration at Northwest Medical Center, a facility at which she had been told the physicians associated with South Florida Women's Health Associates had staff privileges. At that time, Mrs. Ortiz supplied pertinent pre-admission data, presumably similar to that requested by Northwest Medical Center's pre- admission form (Petitioners' Exhibit 17); signed a Conditions and Consent for Treatment form (Petitioners' Exhibit 12); and was given an advance directives booklet (Petitioners' Exhibit 14) and a Northwest Medical Center Patient Handbook (Petitioners' Exhibit 13). Notably, none of the materials Mrs. Ortiz signed or was given referred to the Plan, and she was not otherwise advised of the Plan or provided a copy of the NICA brochure. On December 17, 2000, with the fetus at term (41+ weeks gestation), Mrs. Ortiz presented at Northwest Medical Center, where she was received in labor and delivery at 6:07 p.m. At the time, Mrs. Ortiz complained of uterine contractions every 10 to 13 minutes since noon, and denied bleeding or rupture of the membranes. Vaginal examination revealed the cervix at fingertip, effacement at 70 percent, and the fetus at -3 station, and contractions were noted as mild, at a frequency of 2-4 minutes, with a duration of 50-60 seconds. Dr. DeSouza, who was covering for Dr. Keane, was called and given a report on Mrs. Ortiz's status. At 7:50 p.m., Dr. DeSouza was noted at bedside. At the time, contractions were strong, at a frequency of 1 to 5 minutes, with a duration of 40 to 80 seconds, and vaginal examination revealed the cervix at 1 centimeter dilation, effacement at 75 percent, and the fetus at -2 station. Artificial rupture of the membranes did not reveal any fluid draining. Routine labor room admitting orders were issued by Dr. DeSouza, and Mrs. Ortiz, who had previously been monitored as an outpatient, was admitted as an impatient, to labor and delivery. Notably, as a matter of course, the hospital did not provide NICA notice, although it could easily have done so, prior to admission as an inpatient. Following admission, the labor and delivery nurse on duty at the time, Patricia Thomas, R.N., presented two forms for Mrs. Ortiz's signature, as well as a Patient Questionnaire (also referred to as an anesthesia questionnaire in this proceeding) for her to complete. The first form was a two-sided document, the front of which contained a Consent for Anesthesia and the back of which contained a Consent for Surgery/Blood Transfusion (the consent form), which were signed by Mrs. Ortiz and witnessed by Nurse Thomas at 8:20 p.m., and 8:30 p.m., respectively. The second form presented for signature was a Notice to Obstetric Patient, regarding the Florida Birth-Related Neurological Injury Compensation Plan. The Notice to Obstetric Patient provided, as follows: NOTICE TO OBSTETRIC PATIENT (See Section 766.316, Florida Statutes) I have been furnished information by NORTHWEST MEDICAL CENTER prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. Not all OB/GYN physicians participate in NICA. For specifics on the program, I understand I can contact the Florida Birth- Related Neurological Injury Compensation Association, P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received and will read a copy of the brochure prepared by NICA. Name of Patient Signature Date/Time Witness Date/Time Contemporaneously with the notice, Mrs. Ortiz was given a copy of the NICA brochure.2 Here, there is no dispute Mrs. Ortiz signed the Notice to Obstetric Patient form (notice form) and no compelling proof that she was not also provided a copy of the NICA brochure. What is disputed is whether the notice form and NICA brochure were provided contemporaneously with the consent form. Petitioners also contend the notice form and the NICA brochure were not provided a reasonable time prior to delivery. Lending confusion to when the notice form and NICA brochure were provided is the fact that the notice form does not include, as the form requires, the time it was signed. Supportive of the conclusion that the notice form was not provided or executed contemporaneously with the consent form is the fact that it was not witnessed by Nurse Thomas, as one would reasonably expect, but by Mr. Ortiz, who was not present at the time the consent form was executed, and who was not present until sometime between 9:30 p.m. and 10:00 p.m. Under the circumstances, the record is not compelling that the notice form or NICA brochure was provided to Mrs. Ortiz prior to 9:30 p.m., and no compelling proof to demonstrate when, thereafter, the NICA notice was provided by the hospital. At 8:45 p.m., Dr. Keane, who had assumed Mrs. Ortiz's care, called to inquire about her status. At the time, Dr. Keane was notified that no accelerations were present, variability was decreased, the fetal heart rate baseline was 150-153 beats per minute, and no fluid was draining. Dr. Keane gave orders for observation and pain medication. At 10:10 p.m., vaginal examination revealed little progress, with the cervix at 1 centimeter, effacement at 80 percent, and the fetus at -2 station. Dr. Keane was beeped and returned the call at 10:20 p.m. At the time Dr. Keane was informed of the results of the vaginal examination; that Mrs. Ortiz was on continuous oxygen, left lateral position; and that there was no change in variability, no accelerations, and occasional late decelerations. Dr. Keane requested the fetal monitor strip be faxed to him. According to the labor record, the strip was faxed to Dr. Keane at 10:30 p.m., and at 10:45 p.m., he called to say he had reviewed the strips. At the time, the labor record notes: . . . M.D. states that at the moment delivery was not indicated. Orders received for pain medication. MD notified that patient was on continuous oxygen . . . via face mask . . . [no] fluid draining; left lateral position[;] occ[asional] late decels; [and no] spontaneous accel[erations]. At 12:10 a.m., December 18, 2000, Dr. Keane was informed that late deceleration had been noted, with decreased variability, and no accelerations. Dr. Keane ordered a labor epidural, as requested by Mrs. Ortiz. Thereafter, at 12:55 a.m., Dr. Keane was informed fetal heart monitoring revealed repetitive late decelerations, with occasional decreased variability; Dr. Keane ordered preparations for a cesarean section; at 1:35 a.m., Dr. Keane was at bedside; at 1:53 a.m., Mrs. Ortiz was moved to the operating room; and at 2:26 a.m., Erick was delivered.

Florida Laws (11) 120.68, 395.002, 766.301, 766.302, 766.303, 766.309, 766.31, 766.311, 766.312, 766.314, 766.316

# 6

JENNIFER DE LA ROSA, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF SOPHIA GRANT, DECEASED vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, A/K/A NICA, 14-003730N (2014)

Division of Administrative Hearings, Florida Filed:Tampa, Florida Aug. 13, 2014 Number: 14-003730N Latest Update: Nov. 18, 2015

Findings Of Fact Sophia Grant was born on May 20, 2012, at St. Joseph’s Hospital in Lutz, Florida. Sophia weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), an obstetrician specializing in maternal-fetal medicine, was requested by NICA to review the medical records for Sophia and her mother. In a report dated September 22, 2014, Dr. Willis summarized his findings as follows: In summary, the mother had a post-dates pregnancy complicated by prolonged labor, non-reassuring FHR pattern during labor and a difficult delivery. The baby was depressed at birth and never recovered. Cord blood gas was consistent with acidosis with a pH of 6.9. Despite cooling protocol for HIE, no electrical activity was noted on EEG and Neurology evaluation was consistent with brain death. There was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in severe brain injury and death. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis. The opinion of Dr. Willis that Sophia did suffer an obstetrical event that resulted in loss of oxygen to the baby’s brain during labor, delivery and continuing into the immediate post-delivery period, which resulted in severe brain injury and death, is credited.

Florida Laws (9) 395.002, 766.301, 766.302, 766.303, 766.305, 766.309, 766.31, 766.311, 766.316

# 7

ARMANDO PAYAS, ESQUIRE AS GUARDIAN AD LITEM AND TRUSTEE FOR LUIS VAZQUEZ, A MINOR AND TERESA VAZQUEZ AND RIGOBERTO VAZQUEZ, INDIVIDUALLY vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 10-002922N (2010)

Division of Administrative Hearings, Florida Filed:Orlando, Florida May 28, 2010 Number: 10-002922N Latest Update: Mar. 14, 2014

The Issue Whether this cause is barred by the statute of limitations found at section 766.313, Florida Statutes; Whether Luis Vazquez, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan; and Whether lawful pre-delivery notice was provided by the hospital and the obstetricians involved in labor, delivery, and resuscitation in the immediate postdelivery period related to Luis Vazquez's birth.

Florida Laws (15) 120.569, 395.002, 7.05, 766.301, 766.302, 766.303, 766.304, 766.305, 766.309, 766.31, 766.311, 766.313, 766.314, 766.316, 90.406

# 8

GIOVANNI PILLONATO, A MINOR, BY AND THROUGH HIS PARENTS AND NEXT BEST FRIENDS, BETSY PINTO AND DUSTIN PILLONATO, INDIVIDUALLY vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 14-001980N (2014)

Division of Administrative Hearings, Florida Filed:West Palm Beach, Florida Apr. 30, 2014 Number: 14-001980N Latest Update: Sep. 23, 2016

The Issue The issues in this case are whether Julie Pass, M.D., and OB/GYN Specialists of the Palm Beaches, P.A., and Wellington Regional Medical Center provided appropriate notice as required by section 766.316, Florida Statutes.

Florida Laws (10) 395.002, 766.301, 766.302, 766.303, 766.305, 766.309, 766.31, 766.311, 766.314, 766.316

# 9

CRISTEN JEAN BROWN (MOTHER), INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LEVI JACE BROWN (DECEASED) vs FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, 19-000927N (2019)

Division of Administrative Hearings, Florida Filed:Tampa, Florida Feb. 13, 2019 Number: 19-000927N Latest Update: Dec. 25, 2024

Findings Of Fact Based on the stipulation of Petitioner and NICA, which Intervenors have not challenged, the following facts are found: Cristen Jean Brown is the mother of Levi Jace Brown (Levi), and is the “Claimant” as defined in section 766.302(3). Levi incurred a “birth-related neurological injury” (the injury) as that term is defined in section 766.302(2), on or about August 28, 2015, which was the sole and proximate cause of his death on September 2, 2015. At birth, Levi weighed 3,190 grams. Heidi E. Disalvo, D.O. and MaryAnne Colalillo, M.D., rendered obstetrical services in the delivery of Levi and, at all material times, each was a “participating physician” as defined in section 766.302(7). Brandon Regional Hospital is a hospital located in Brandon, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Levi was born. On February 11, 2019, Petitioner filed the Petition, seeking compensation from NICA, and that Petition is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth- Related Neurological Injury Compensation Plan (the Plan).

Florida Laws (5) 766.301, 766.302, 766.305, 766.31, 766.311 Florida Administrative Code (1) 28-106.204 DOAH Case (1) 19-0927N

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