01-001214N Lisa Gilcreast, On Behalf Of, And As Parent And Natural Guardian Of Kara Gilcreast, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, February 5, 2002.

Summary: Residents were not supervised as required by the Plan and, therefore, were not exempt from payment of the assessment required for participation. Consequently, they were not participating physicians and claim was not compensable.

OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA GILCREAST, as parent and )

natural guardian of KARA )

GILCREAST, a minor, )

)

Petitioner, )

)

vs. ) Case No. 01 - 1214N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

BAYFRONT MEDICAL CE NTER, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

he aring in the above - styled case on November 13, 2001, in

St. Petersburg, Florida.

APPEARANCES

For Petitioner: William F. Blews, Esquire

William F. Blews, P.A.

150 Second Avenue North, Suite 1500

St. Petersburg, Florida 33701

For Respondent: B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

For Intervenor: Kirk S. Davis, Esquire

Akerman, Senterfitt & Eidson, P.A.

First Union Building

100 South Ashley Drive, Suite 1500

Tampa, Florida 33601 - 3273

STATEMENT OF THE ISSUES

1. Whether obstetrical service s were delivered by a

participating physician in the course of labor and delivery.

2. If so, whether notice was accorded the patient as

contemplated by Section 766.316, Florida Statutes. 1

PRELIMINARY STATEMENT

By Prehearing Stipulation, filed November 7, 2001, the

parties expressed their respective position on the pending

issues, as follows:

a. It is Petitioners' position that

obstetrical services were not delivered by a

participating physician and notice was not

give[n] under Florida Statute 766.316.

b . It is Respondent's position that

obstetrical services were delivered by a

participating physician. Respondent is mute

on the issue of notice.

c. It is Intervenor's position that

obstetrical services were delivered by a

participating physician and not ice was given

under Florida Statute 766.316.

The parties also stipulated to the following facts:

a. Petitioner, Lisa Gilcreast, is the parent

and natural guardian of Kara Gilcreast, a

minor.

b. Kara Gilcreast was born a live infant on

May 28, 2000, a t Bayfront Medical Center, a

hospital located in Pinellas County, Florida.

c. Kara Gilcreast's birth weight was in

excess of 2,500 grams.

d. Kara Gilcreast suffered a "birth - related

neurological injury" as that term is defined

by Section 766.302(2), Fl orida Statutes.

At hearing, Petitioner Lisa Gilcreast testified on her own

behalf and called John Sipiora, as a witness. Petitioner's

Exhibit 1 (the medical records filed with the Division of

Administrative Hearings (DOAH) on March 30, 2001), Exhibit 2 ( the

deposition of Cynthia Cole) and Exhibit 3 (the deposition of

Isabella Smith) were received into evidence. Respondent called

no witnesses; however, Respondent's Exhibit 1 (a report of

neurological evaluation prepared by Michael Duchowny, M.D., dated

Ju ly 31, 2001) was received into evidence. Intervenor called

Karen Ramier, M.D. and Cynthia McNulty, as witnesses, and

Intervenor's Exhibit 1 (the deposition of Cynthia McNulty),

Exhibit 2 (the deposition of Christina McDaniel), Exhibit 3 (the

deposition of Robert Thornton), Exhibit 4 (the deposition of

Lisa Gilcreast), Exhibit 5 (the affidavit of Cynthia McNulty),

Exhibit 6 (a Women's & Children's Health Center New OB

Orientation form) and Exhibit 7 (the Women's & Children's Health

Center records for Lisa G ilcreast) were received into evidence. 2

Finally, Joint Exhibit 1 (the deposition of Kristina McLean,

M.D.), Exhibit 2 (the deposition of Karen Raimer, M.D.), and

Exhibit 3 (the deposition of Donna Felsman) were received into

evidence.

The transcript of th e hearing was filed December 3, 2001,

and the parties were initially accorded until December 13, 2001,

to file proposed final orders; however, at Intervenor's request

the time for filing was subsequently extended to December 27,

2001. Petitioner and Inter venor elected to file such proposals

and they have been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioner, Lisa Gilcreast, is the mother and natural

guardian of Kara Gilcreast, a minor. Kara was born a live infant

on May 28, 2000, a t Bayfront Medical Center, Inc. (Bayfront

Medical Center), a hospital located in St. Petersburg, Pinellas

County, Florida, and her birth weight exceeded 2,500 grams.

Coverage under the Plan

2. A claim is compensable under the Plan when it can be

shown, m ore likely than not, that the "infant has sustained a

birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth." Section

766.31(1), Florida Statutes. See also Section 766.309(1),

Florida Statute s. Here, the parties have stipulated, and the

proof is otherwise compelling, that Kara sustained a "birth -

related neurological injury," as that term is defined by Section

766.302(2), Florida Statutes. What remains in dispute is whether

obstetrical servic es were rendered by a "participating physician"

at birth.

The "participating physician" issue

3. Section 766.302(7), Florida Statutes, defines the term

"participating physician," as used in the Plan, to mean:

. . . a physician licensed in Florida to

pr actice medicine who practices obstetrics or

performs obstetrical services either full

time or part time and who had paid or was

exempted from payment at the time of the

injury the assessment required for

participation in the birth - related

neurological inju ry compensation plan for the

year in which the injury occurred . . . .

And, Section 766.314(4)(c), Florida Statutes, describes the

circumstances under which a resident physician, assistant

resident physician, or intern may be deemed a participating

physic ian without payment of the assessment otherwise required

for participation in the Plan, as follows:

. . . if the physician is either a resident

physician, assistant resident physician, or

intern in an approved postgraduate training

program, as defined by t he Board of Medicine

or the Board of Osteopathic Medicine by rule,

and is supervised by a physician who is

participating in the plan , such resident

physician, assistant resident physician, or

intern is deemed to be a participating

physician without the pay ment of the

assessment . . . . Supervision shall require

that the supervising physician will be easily

available and have a prearranged plan of

treatment for specified patient problems

which the supervised . . . physician may

carry out in the absence of a ny complicating

features . . . . (Emphasis added)

4. Pertinent to this case, the proof demonstrates that the

physicians providing obstetrical services during the course of

Kara's birth were resident physicians 3 in Bayfront Medical

Center's postgraduate residency program in obstetrics and

gynecology. 4 The proof further demonstrates that during that

time, Dr. Karen Raimer, a participating physician in the Florida

Birth - Related Neurological Injury Compensation Plan (Plan), was

the supervising physician, an d that she was in the hospital and

easily available (by beeper or overhead page through the hospital

operator) to consult with or assist the residents if they

requested. However, Dr. Raimer was never called by the

residents, and she did not provide any ob stetrical services

during the course of Ms. Gilcreast's labor or Kara's birth. 5

5. As heretofore noted, "supervision," as defined by

Section 766.314(4)(c), Florida Statutes, "require[s] that the

supervising physician will be easily available and have a

pr earranged plan of treatment for specified patient problems

which the supervised . . . physician may carry out in the absence

of any complicating features." Here, while the supervising

physician was easily available, there was no compelling proof

that "the supervising physician . . . [had] a prearranged plan

for treatment of specified patient problems which the supervised

. . . physician . . . [could] carry out in the absence of any

complicating features" (the prearranged plan for treatment).

Consequently, the resident physicians and intern who provided

obstetrical services during Kara's birth were not exempt from

payment of the assessment required for participation in the Plan,

and were not "participating physician[s]," as that term is

defined by the Plan.

6. In reaching such conclusion, Dr. Raimer's testimony

regarding the residency program at Bayfront Medical Center, as

well as her perceptions on the existence of a prearranged plan of

treatment, has been considered. In this regard, it is noted that

Dr. Raimer's role as supervising physician, or attending

physician as it was known in the residency program, was to be

available if the residents had any questions or concerns

regarding patient care, and if her assistance was not requested,

as it was not in th is case, she did not involve herself in the

labor and delivery. Under such circumstances, as is the practice

in the residency program, the residents are left to manage the

patient's care, with the more senior resident supervising the

more junior. As for resident supervision in this case,

Dr. Raimer offered the following observations:

Q: And so [w]as . . . [Dr. Marler] the

person for the shift on Sunday, May 28, 2000,

who was responsible for the supervision of

the other residents?

A. . . . [A]s far as I remember, Dr. Marler

was the chief resident on that day, the

fourth - year.

Q. Is there any resident that's higher than

the chief resident?

A. No.

Q. So if he's there -

A. Then he was responsible.

* * *

Q. So he was responsible to supervi se the

senior residents, the third - year residents,

the second - year residents, and the first - year

residents; is that correct?

A. That's correct.

Q. And you relied upon him to do that?

A. Yes.

[Joint Exhibit 2, pages 50 and 51]

As for a preexisting plan of treatment, Dr. Raimer offered the

following observations:

Q. Now, in May 2000, did you have any

prearranged plan of treatment for specified

patient problems which the resident may carry

out in the absence of any complicating

features?

A. All of the residents in their training as

they go through the four years, it’s a

cumulative knowledge base and experience base

that develops. And by the time that they get

through their fourth year and about to

graduate and get to that point, if they are a

fourt h - year, we feel that they are competent

in knowing how to manage cases that have

complicating features, and if not, they can

call their attending physician.

* * *

. . . [Again], residents during their

training are expected to learn how to manage

pati ents throughout their four years of

experience. And, again, by the time they get

to their fourth year, they are expected to

know how to manage patients on an obstetrical

unit and manage complicating features. If

there is any concern or any question, they

are to call their attending physician.

[Joint Exhibit 2, pages 47 and 48]

7. From Dr. Raimer's testimony, it is apparent that, unless

requested to do so, the supervising physician does not

participate in the preparation of a plan of treatment. Rathe r,

it is customary, as was done in the instant case, for the chief

resident to develop the plan. Therefore, as heretofore noted,

the resident physicians and intern who provided obstetrical

services during Kara's birth were not exempt from payment of the

a ssessment required for participation in the Plan, and were not

"participating physician[s]," as that term is defined by the

Plan.

The notice issue

8. Pertinent to the notice issue, the proof demonstrates

that Ms. Gilcreast received her prenatal care at B ayfront Women's

& Children's Health Center (the Clinic), an outpatient facility

established by Bayfront Medical Center to provide obstetrical

services to lower income families in mid - Pinellas County, and

located at 7995 66th Street, North, Pinellas Park, F lorida.

Staffing at the facility included faculty of, and residents

participating in, Bayfront Medical Center's postgraduate

residency program in obstetrics and gynecology, as well as two

perinatologists and three nurse midwives, all of whom were

employed by Bayfront Medical Center. 6

9. Notably, at her first visit to the Clinic, Ms. Gilcreast

(age 18, with her first pregnancy) met with Cynthia McNulty, a

patient representative, for a new patient orientation. During

that orientation, which lasted from 4 5 minutes to 1 hour,

Ms. McNulty addressed a number of matters with Ms. Gilcreast,

including financial matters (Florida Medicaid), Healthy Start

(for which Ms. Gilcreast filled out an application), W.I.C. (a

nutritional counseling program and monthly food check program),

the prenatal care plan she could expect at the clinic, and who to

contact in case of emergency. Ms. McNulty also provided

Ms. Gilcreast with an American Baby Basket packet (which

contained parenting and educational materials, as well as sa mples

of baby products), magazines for parenting and breast feeding,

and scheduled her next appointment. Finally, at some point

during the orientation, Ms. McNulty showed Ms. Gilcreast a

brochure titled "Peace of Mind for an Unexpected Problem." 7 That

br ochure, prepared by NICA, 8 contains a concise explanation of the

patient's rights and limitations under the Plan; however,

Ms. McNulty described the brochure as a

. . . $100,000 . . . insurance policy, that

. . . [if] the baby was neurologically

injured . . . the parents would collect

$100,000, and any further questions they

could call the association, . . . [at] the

number . . . on the back, or talk to the

physicians.

[Transcript, pages 68 and 69.] Copies of all the papers they

discussed, including the NICA brochure, were placed in the

American Baby Basket packet, a clear plastic bag, by Ms. McNulty

and given to Ms. Gilcreast. Subsequently, Ms. Gilcreast

discarded many of the materials she received during the

orientation, and there is no proof of recor d that would lead one

to conclude that she read the NICA brochure or was otherwise

informed of its actual contents.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proce edings. Section 766.301, et seq. , Florida Statutes.

11. The Florida Birth - Related Neurological Injury

Compensation Plan (the "Plan") was established by the Legislature

"for the purpose of providing compensation, irrespective of

fault, for birth - related n eurological injury claims" relating to

births occurring on or after January 1, 1989. Section

766.303(1), Florida Statutes.

12. The injured "infant, his personal representative,

parents, dependents, and next of kin" may seek compensation under

the Plan by filing a claim for compensation with the Division of

Administrative Hearings. Sections 766.302(3), 766.303(2),

766.305(1), and 766.313, Florida Statutes. The Florida Birth -

Related Neurological Injury Compensation Association (NICA),

which administers th e Plan, has "45 days from the date of service

of a complete claim . . . in which to file a response to the

petition and to submit relevant written information relating to

the issue of whether the injury is a birth - related neurological

injury." Section 766 .305(3), Florida Statutes.

13. If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, as it has in

the instant case, it may award compensation to the claimant,

provided that the award is approved by the a dministrative law

judge to whom the claim has been assigned. Section 766.305(6),

Florida Statutes.

14. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whet her the injury claimed is a birth -

related neurological injury. 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

in jury 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. 766.303(2).

(b) Whether obstetric al services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician i n the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital.

Section 766.309(1), Florida Statutes. An award may be sustained

only if the administrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." Section 766.31(1), Florida Statutes.

15. Pertinent to this case, Section 766.302(7), Florida

Statutes, defines the term "participating physi cian," as used in

the Plan, to mean:

. . . a physician licensed in Florida to

practice medicine who practices obstetrics or

performs obstetrical services either full

time or part time and who had paid or was

exempted from payment at the time of the

injury the assessment required for

participation in the birth - related

neurological injury compensation plan for the

year in which the injury occurred . . . .

And, Section 766.314(4)(c), Florida Statutes, describes the

circumstances under which a resident physic ian, assistant

resident physician, or intern may be deemed a participating

physician without payment of the assessment otherwise required

for participation in the Plan, as follows:

. . . if the physician is either a resident

physician, assistant resident p hysician, or

intern in an approved postgraduate training

program, as defined by the Board of Medicine

or the Board of Osteopathic Medicine by rule,

and is supervised by a physician who is

participating in the plan, such resident

physician, assistant reside nt physician, or

intern is deemed to be a participating

physician without the payment of the

assessment . . . . Supervision shall require

that the supervising physician will be easily

available and have a prearranged plan of

treatment for specified patien t problems

which the supervised . . . physician may

carry out in the absence of any complicating

features . . . .

16. The language chosen by the legislature to define the

narrow circumstances under which a resident or intern will be

deemed a participating physician, as well as its mandate as to

what supervision shall require, are clear and unequivocal.

Consequently, it must be resolved that where, as here, the

supervising physician did not have a prearranged plan of

treatment for specified patient problem s which the supervised

physician could carry out, that the resident or intern was not

supervised and, therefore, was not exempt from payment of the

assessment required for participation in the Plan. A.R. Douglas,

Inc. v. McRainey , 102 Fla. 1141, 1144, 137 So. 157, 159 (1931)

(" W hen the language of the statute is clear and unambiguous and

conveys a clear and definite meaning, there is no occasion for

resorting to rules of statutory interpretation and construction;

the statute must be given its plain and obv ious meaning.")

Accord , Holly v. Auld , 450 So. 2d 217 (Fla. 1984). Consequently,

obstetrical services were not delivered by a participating

physician at birth, and the claim does not qualify for coverage

under the Plan.

17. Pertinent to the issue of not ice, Section 766.316,

Florida Statutes, provides as follows:

Each hospital with a participating physician

on its staff and each participating

physician, and 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. 9

18. In Galen of Florida, Inc. v. Braniff , 696 So. 2d 308,

309 (Fla. 1997), the Florida Supreme Court described the

legislative intent and purpose of the notice requirement as

follows:

. . . the only logical reading of the statute

is that before an obstetrical patient's

remedy is limited by the NICA plan, the

patient must be given pre - delivery notice of

the health care provider's participation in

the plan. Section 766.316 requires that

o bstetrical patients be given notice "as to

the limited no - fault alternative for birth -

related neurological injuries." That notice

must "include a clear and concise explanation

of a patient's rights and limitations under

the plan." Section 766.316. This language

makes clear that 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 pre serving her civil

remedies. Turner v. Hubrich , 656 So. 2d 970,

971 (Fla. 5th DCA 1995). In order to

effectuate this purpose a NICA participant

must give a patient notice of the "no - fault

alternative for birth - related neurological

injuries" a reasonable t ime prior to

delivery, when practicable.

Consequently, the court concluded:

. . . as a condition precedent to invoking

the Florida Birth - Related Neurological Injury

Compensation Plan as a patient's exclusive

remedy, health care providers must, when

pract icable, give their obstetrical patients

notice of their participation in the plan a

reasonable time prior to delivery.

19. Here, the proof demonstrated that, during

Ms. Gilcreast's initial visit to the clinic, Ms. McNulty, at the

direction of the hospit al, gave Ms. Gilcreast a copy of the

brochure titled "Peace of Mind for An Unexpected Problem."

However, the proof also demonstrated that the explanation

Ms. McNulty gave of the brochure was misleading and not an

accurate characterization of its contents. Consequently, since

there is no proof of record to demonstrate that Ms. Gilcreast

ever read the brochure or was otherwise informed of its actual

contents, it must be resolved that Ms. Gilcreast was not accorded

an opportunity to make an informal choice b etween using a health

care provider participating in the NICA plan or using a provider

who was not a participant and thereby preserving her civil

remedies.

20. Where, as here, the administrative law judge determines

that " . . . obstetrical services were not delivered by a

participating physician at birth . . . he [is required to] enter

an order [to such effect] and . . . cause a copy of such order to

be sent immediately to the parties by registered or certified

mail." Section 766.309(2), Florida Statutes . Such an order

constitutes final agency action subject to appellate court

review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by

Lisa Gilcreast, as parent and natural guardian of Kara Gilcreast,

a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 5th day of February, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIA M J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of February, 2002.

ENDNOTES

1/ Presumably, Petitioner has placed notice at issue to avoid

the exclusiveness of remedy provisions of the Florida Birth -

Related Neurological Injury Compensation Plan in t he event the

claim is found to be compensable. See Braniff v. Galen of

Florida, Inc. , 669 So. 2d 1051, 1053 (Fla. 1st DCA 1995)("The

presence or absence of notice will neither advance or defeat the

claim of an eligible NICA claimant who has decided to inv oke the

NICA remedy . . . . Notice is only relevant to the defendants'

assertion of NICA exclusivity where the individual to invoke a

civil remedy.", and O'Leary v. Florida Birth - Related Neurological

Injury Compensation Plan , 747 So. 2d 624, 627 (Fla. 5th DCA

2000))("We recognize that lack of notice does not affect a

claimant's ability to obtain compensation from the Plan.")

2/ At hearing, Petitioner's counsel entered an objection to that

portion of the deposition of Cynthia McNulty identified as page

40, line 6 to page 41, line 17 (Intervenor's Exhibit 1), the

admission of the photographs attached as an exhibit to the

deposition of Christina McDaniel (Intervenor's Exhibit 2) and the

admission of the photographs attached to Petitioner's deposition

(Inte rvenor's Exhibit 4). Upon consideration, the objections are

overruled and the documents are received into evidence.

3/ The residents were David Marler, M.D., a fourth - year

resident, Linda Tijerino, M.D., a second - year resident, and

Karen McLean, M.D., a first - year resident (intern). Dr. McLean,

assisted by Dr. Marler, delivered Kara.

4/ The OB/GYN residency program is a four - year postgraduate

training program approved by the Board of Medicine or the Board

of Osteopathic Medicine. Of the 12 residents in the program,

three are in their first year (and are referred to as interns),

three are in their second year, three are in their third year,

and three are in their fourth year.

5/ Dr. Raimer never reviewed the patient records, never spoke

with the res idents or intern, never checked on Ms. Gilcreast, and

was otherwise unaware of Ms. Gilcreast's condition or treatment.

Indeed, Dr. Raimer was not even aware Ms. Gilcreast was in the

hospital.

6/ Under the terms of a Management Agreement, effective

Au gust 31, 1993, and amended effective July 17, 1997, Bayfront

Medical Center and Community Health Centers of Pinellas County,

Inc. (CHC), a non - profit corporation, outlined the manner in

which the facility would be operated. As structured, Bayfront

Medical Center operated the obstetrical and gynecological

(OB/GYN) component of the facility and CHC operated the pediatric

component. CHC also agreed to provide clinical support staff, as

well as administrative and support services for the OB/GYN clinic

in exch ange for a management fee and reimbursement for various

labor and other expenses allocable to the OB/GYN clinic.

While Bayfront Medical Center elected to staff the facility,

apart from the physicians and midwives, with CHC personnel, it is

improbable that any patient, including Petitioner, was not aware

that the OB/GYN clinic was operated by Bayfront Medical Center.

Notably, the signage at the front of the facility, as well as on

the premises, identified the clinic as Bayfront Women's &

Children's Health Center; photographs of the twelve resident

physicians, identified as Bayfront Medical Center OB/GYN

Residents, were prominently displayed on the premises; and each

patient, including Petitioner, knew that delivery would occur at

Bayfront Medical Center.

7 / Ms. McNulty was employed by CHC, and was one of a number of

support staff at the Clinic, under the Management Agreement

between Bayfront Medical Center and CHC. Based on her employment

with CHC, Petitioner suggests she could not give notice on behalf

o f Bayfront Medical Center. That suggestion is rejected.

Indeed, Ms. McNulty distributed the brochures at the express

directions of Donna Kozlowski, then director of Bayfront Family

Health Center, a department of Bayfront Medical Center

responsible for ma nagement of the various residency programs at

the hospital, as well as the oversight of Bayfront Women's &

Children's Health Center.

8/ While apparently not disputed during the course of this

proceeding, Petitioner questions (in her proposed final order)

whether the brochure was furnished by NICA. Here, given the

proof, it is reasonable to infer that the brochure was furnished

by NICA to the hospital for distribution. Petitioner also points

out that the brochure was an older edition, and incorrectly

ide ntified the area code (904 instead of 850) for NICA's

telephone, incorrectly identified NICA's executive director (Lynn

Dickinson instead of Lynn Larson, her current married name) and

incorrectly identified the state agency (the Division of Worker's

Compen sation of the Department of Labor instead of the Division

of Administrative Hearings) where claims should be filed.

However, there was no showing that, notwithstanding such

discrepancies, anyone would experience any differently contacting

NICA. Moreover, such discrepancies do not relate to or adversely

affect the brochure's explanation of a patient's rights and

limitations under the Plan.

9/ Here, by agreement reached by counsel at a hearing held

October 15, 2001, the transcript of which was filed Novem ber 13,

2001, as well as the parties' Prehearing Stipulation, wherein

Intervenor stated its position on the notice issue to be that

"notice was given under Florida Statute 766.316," Intervenor

agreed that its position was that notice was given and not that

the giving of notice was excused because the patient had a

medical emergency. Notwithstanding, at hearing, Intervenor

proposed to offer such proof as an alternative way to satisfy the

notice requirements of the Plan should it be resolved that the

hospita l otherwise failed to give notice. Respondent objected to

such proof, given counsel's understanding of the parties'

agreement, and that objection was sustained. Now, in its

proposed final order, Intervenor proposes that a finding be made,

based on the me dical records, that the giving of notice was

excused because Ms. Gilcreast had an "emergency medical condition

as defined in s. 395.002(9)(b)," since there was evidence of

labor when she presented to Bayfront Medical Center for delivery.

This I decline to do because the issue was foreclosed. Moreover,

by foreclosing that issue, proof regarding the related issue of

whether a failure to give notice should be excused when the

hospital had the opportunity to give notice a reasonable time

prior to the patient' s presentation for delivery was also not

considered.

COPIES FURNISHED:

(By certified mail)

William F. Blews, Esquire

William F. Blews, P.A.

150 Second Avenue North, Suite 1500

St. Petersburg, Florida 33701

Kirk S. Davis, Esquire

Akerman, Senterfitt & Eidson, P.A.

First Union Building

100 South Ashley Drive, Suite 1500

Tampa, Florida 33601 - 3273

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32317 - 4567

B. Forest Hamilton, Esquire

Post Office Box 38454

Tallahassee, Florida 32315 - 8454

Kristina McLean, M.D.

3962 14th Lane, Northeast

St. Petersburg, Florida 33703

Bayfront Medical Center

701 6th Street, South

St. Peter sburg, Florida 33701

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Fl orida 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 one copy of a Notice of Appeal with the Agency Clerk of the

Division of Administrative Hearings and a second copy, accompanied

by filing fees prescribed by law, with the appropriate District

C ourt of Appeal. See Section 120.68(2), 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 t o

be reviewed.