The Issue At issue is whether interest should be assessed on an award of attorney's fees and costs under the Florida Birth-Related Neurological Injury Compensation Plan.
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.
