02-003277N Clarice Tabb, Individually And As Next Friend Of Dylan Tabb, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, November 1, 2004.

Summary: Claim was compensable; however, physician did not comply with notice provisions of the plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CLARICE TABB (Mother), )

individually and as next friend )

of DYLAN TABB, a minor, )

)

Petitioners, )

)

vs. ) Case No. 02 - 3277N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

GRACE M. VALENTE, M.D. and )

MEMORIAL HEALTHCARE GROUP, )

INC., d/b/a MEMORIAL HOSPITAL )

JACKSONVILLE, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

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

hearing in the above - styled case on February 18, 2003, and

May 28, 2003, in Jacksonville, Florida.

APPEARANCES

For Petitioners: Richard L. Nichols, Esquire

3000 Hartley Road, Suite 5

Jacksonville, Florida 32257

For Respondent: Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

For Intervenor Grace Valente, M.D.:

Mary Bland Love, Esquire

Gobelman, Love, Gavin, Blazs & Mathis

815 South Main Street, Suite 300

Jacksonville, Florida 32207

For Intervenor Memorial Healthcare Group, Inc., d/b/a

Memorial Hospital Jacksonville:

James C. Rinaman, Jr., Esquire

Marks Gray, P.A.

Post Office Bo x 447

Jacksonville, Florida 32201

STATEMENT OF THE ISSUES

1. Whether Dylan Tabb, a minor, qualifies for coverage

under the Florida - Birth Related Neurological Injury Compensation

Plan (Plan) and, if so, the amount of compensation t hat should be

awarded.

2. Whether the notice provisions of the Plan were satisfied

by the participating physician and the hospital.

PRELIMINARY STATEMENT

On August 19, 2002, Clarice Tabb, individually and as mother

and next friend of Dylan Tabb (Dylan), a minor, filed a petition

(claim) with the Division of Administrative Hearings (DOAH) for

compensation under the Florida Birth - Related Neurological Injury

Compensation Plan. Pertinent to this case, apart from contending

that Dylan suffered an injury compe nsable under the Plan,

Petitioners also sought an opportunity to avoid any claim of Plan

immunity by contending that, and requesting a finding that, the

participating physician and hospital failed to comply with the

notice provisions of the Plan.

DOAH serv ed the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

August 20, 2002, and on November 7, 2002, NICA served its

response to the petition and agreed the claim was compensable.

In the interim, Grace Val ente, M.D., and Memorial Healthcare

Group, Inc., d/b/a Memorial Hospital Jacksonville (Memorial

Hospital) were accorded leave to intervene.

Given the pleadings, a hearing was held on February 18,

2003, and May 28, 2003, to resolve whether NICA's proposal t o

accept the claim for compensation should be approved; how much

compensation, if any, should be awarded; and whether the notice

provisions of the Plan were satisfied by the participating

physician and the hospital.

At hearing, Clarice Tabb testified on he r own behalf, and

called Grace Valente, M.D., Diana Bartlett, Abigail Mohammed,

Nicole Hicks, and Melanie R. Milton, as witnesses. Petitioners'

Exhibits 1A - F (the medical records filed with DOAH on August 19,

2002) and 2 - 16 were received into evidence. R espondent called no

witnesses; however, its Exhibits 1 - 3 were received into evidence.

Intervenor Grace Valente, M.D., testified on her own behalf, and

called Erica Shearn as a witness, and Intervenor Memorial

Hospital called Clarice Tabb and Leslie Joseph as witnesses.

Dr. Valente's Exhibits (Doctor's Exhibits) 1 - 7 and Memorial

Hospital's Exhibits (Hospital's Exhibits) 1 - 5 were received into

evidence.

The hearing transcripts were filed April 29, 2003, and

June 19, 2003, and the parties were initially acco rded until

June 30, 2003, to file proposed orders. However, at the request

of Intervenor Grace Valente, M.D., the time for filing was

subsequently extended to July 11, 2003. Here, all parties

elected to file proposed orders and they have been duly

consid ered.

FINDINGS OF FACT

Findings related to compensability

1. Petitioner, Clarice Tabb, is the natural mother and

guardian of Dylan Tabb, a minor. Dylan was born a live infant on

September 26, 2001, at Memorial Hospital, a hospital located in

Jacksonvil le, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Dylan's

birth was Grace Valente, M.D., who, at the time, was a

"participating physician" in the Florida Birth - Related

Neurological Injury Compensati on Plan, as defined by Section

766.302(7), Florida Statutes.

3. 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." Section 766.302(2), Florida

Statutes. See als o Section 766.309(1)(a), Florida Statutes.

4. Here, the parties have stipulated, and the proof is

otherwise compelling, that Dylan suffered a "birth - related

neurological injury," as that term is defined by the Plan.

Consequently, since obstetrical servic es were provided by a

participating physician at birth, the claim is compensable.

Sections 766.309(1) and 766.31(1), Florida Statutes.

Findings related to the award

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

that the infant has sustained a birth - related neurological injury

and that obstetrical services were delivered by a participating

physician at birth, he is required to make a determination as to

how much compensation should be awarded. Section 766.31, Florida

Statutes. Here, should Petitioners elect to accept benefits

under the Plan, the parties have stipulated to the following

award:

A. There are no past medical expenses

recoverable under Section 766.31(1)(a),

Florida Statutes, since any such expenses

have been paid by Medicaid.

B. Petitioner, Clarice Tabb, as the natural

mother and guardian of Dylan Tabb, a minor,

be accorded a lump sum award of $100,000.00,

pursuant to Section 766.31(1)(b), Florida

Statutes.

C. NICA pay Petitioners the sum of

$9,465.26, which represents reaso nable

attorney's fees ($7,500.00) and costs

($1,965.26) incurred in connection with the

filing of the claim. Section 766.31(1)(c),

Florida Statutes.

D. NICA, consistent with Section

766.31(1)(a), Florida Statutes, shall pay all

future expenses as incurr ed. Section

766.31(2), Florida Statutes.

The notice requirements of the Plan

6. 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 hospital and p articipating

physician failed to comply with the notice provisions of the

Plan. See Galen of Florida, Inc. v. Braniff , 696 So. 2d 308, 309

(Fla. 1997)("[A]s a condition precedent to invoking the Florida

Birth - Related Neurological Injury Compensation Plan as a

patient's exclusive remedy, health care providers must, when

practicable, give their obstetrical patients notice of their

participation in the plan a reasonable time prior to delivery.")

Consequently, it is necessary to resolve whether, as alleged by

the health care providers, appropriate notice was given. O'Leary

v. Florida Birth - Related Neurological Injury Compensation

Association , 757 So. 2d 624 (Fla. 5th DCA 2000).

7. Pertinent to this case, at the time of Ms. Tabb's

initial visit to Dr. Valen te's office (February 19, 2001), as

well as at the time of Dylan's birth, Section 766.316, Florida

Statutes, prescribed the notice requirement, as follows:

Each hospital with a participating physician

on its staff and each participating physician

. . . sha ll 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

patien t'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

rebuttab le 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.

8. Responding to Secti on 766.316, Florida Statutes, NICA

developed a brochure titled "Peace of Mind for an Unexpected

Problem" (the NICA brochure) to comply with the statutory

mandate, and distributed the brochure to participating physicians

and hospitals so they could furnish the brochure to their

obstetrical patients. 1

The dispute regarding notice

9. With regard to the notice issue, Ms. Tabb contends the

participating physician and hospital failed to provide her with a

copy of the NICA brochure, and thereby failed to comply with the

notice provisions of the Plan. In contrast, the health care

providers contend they had a routine practice to provide their

obstetrical patients with a copy of the NICA brochure (in the

case of the participating physician, at the time of the patie nt's

initial visit, and in the case of the hospital, at the time of

pre - registration) and that, given such practice, it must be

resolved that, more likely than not, Ms. Tabb was provided a NICA

brochure and the notice provisions of the Plan were satisfied.

See , e.g. , Watson v. Freeman Decorating, Co. , 455 So. 2d 1097,

1099 (Fla. 1st DCA 1984)("There is a general presumption that the

ordinary course of business has been followed absent a showing to

the contrary.")

Findings related to the participating physi cian and notice

10. With regard to the participating physician, it must be

resolved that the proof fails to support the conclusion that

Dr. Valente satisfied the notice provisions of the Plan. Such

conclusion is based on the more persuasive proof which

demonstrated that on February 19, 2001, when Ms. Tabb presented

to Dr. Valente's office for her initial visit, Dr. Valente's

office did not have, as she contends, a routine practice whereby,

on their initial visit, obstetrical patients were provided a NICA

brochure (either at the front desk at check - in or in a "goody

bag" at the end of their first visit), 2 and that Ms. Tabb was

never provided a NICA brochure prior to Dylan's birth. 3

Findings related to the hospital and notice.

11. As for Memorial Hospital and the notice issue, it is

resolved that on September 20, 2001, when Ms. Tabb presented to

Memorial Hospital for pre - registration, the hospital had an

established routine whereby the registration clerk would provide

the prospective patient with a preadmi ssion packet, which

included a copy of the NICA brochure. Consequently, there being

no compelling proof to the contrary, it must be resolved that,

she presented for pre - registration, the hospital provided

Ms. Tabb a copy of the NICA brochure. Watson v. F reeman

Decorating Co. , supra .

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

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

these proceedings. Section 766.301, et seq. , Florida Statutes.

13. The Florida Birth - Related N eurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or after January 1, 1989. Section 766. 303(1),

Florida Statutes.

14. The injured "infant, her or 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

76 6.302(3), 766.303(2), 766.305(1), and 766.313, Florida

Statutes. The Florida Birth - Related Neurological Injury

Compensation Association, which administers the Plan, has "45

days from the date of service of a complete claim . . . in which

to file a respons e 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.

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

is a compens able 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 administrative law

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

Florida Statutes .

16. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether 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

injury and that the infant was thereby

rendered permanently and substantially

mentally and physicall y impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resus citation

in the immediate post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospi tal.

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 physi cian

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

17. Pertinent to this case, "birth - related neurological

injury" is defined by Section 766.302(2), Florida Statutes, to

mean:

. . . injury to the brain or spinal cord of a

live infant weighing at le ast 2,500 grams at

birth caused by oxygen deprivation or

mechanical injury 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. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

18. As the proponents of the issue, the burden rested on

Petitioners to demonstrate compensabil ity. Section

766.309(1)(a), Florida Statutes. See also Balino v. Department

of Health and Rehabilitative Services , 348 So. 2d 349, 350 (Fla.

1st DCA 1977)("[T]he burden of proof, apart from statute, is on

the party asserting the affirmative issue before an

administrative tribunal.")

19. Here, it has been established that the physician who

provided obstetrical services at birth was a "participating

physician," as that term is defined by the Plan, and that Dylan

suffered a "birth - related neurological injur y," as that term is

defined by the Plan. Consequently, Dylan qualifies for coverage

under the Plan. Sections 766.309 and 766.31, Florida Statutes.

20. While Dylan qualifies for coverage under the Plan,

Petitioners have sought to avoid the health care pr oviders'

attempt to invoke the Plan as Petitioners' exclusive remedy by

averring that the participating physician and hospital failed to

comply with the notice provisions of the Plan. Consequently, it

was necessary for the administrative law judge to reso lve

whether, as alleged by the health care providers, appropriate

notice was given. O'Leary v. Florida Birth - Related Neurological

Injury Compensation Plan , supra . As the proponent of such issue,

the burden rested on the health care providers to demonstra te,

more likely than not, that the notice provisions of the Plan were

satisfied. See Galen of Florida, Inc. v. Braniff , 696 So. 2d

308, 311 (Fla. 1997)("[T]he assertion of NICA exclusivity is an

affirmative defense."); Id. , at page 309 ("[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."); Balino v. Department of Health and

Rehabilitative Services , supra , ("[T]he burden of proof, apart

from statute, is on the party asserting the affirmative issue

before an administrative tribunal.") Here, for reasons appearing

in the Findings of Fact, Memorial Hospital demonstrated that it

complied with the notice provisions of the Plan, but Dr. Valente

did not.

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

that the infant has sustained a birth - related neurological injur y

and that obstetrical services were delivered by a participating

physician at birth, he is required to make a determination as to

how much compensation, if any, should be awarded. Section

766.31, Florida Statutes. In this case, the parties have

stipulat ed to the award, as set forth in paragraph 5 of the

Findings of Fact. Such award is reasonable, and it is hereby

approved.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Clarice Tabb, individually and as mother and next friend of

Dylan Tabb, a minor, and NICA's proposal to accept the claim as

compensable be and the same are hereby approved.

It is FURTHER ORDERED that, should Petitioners elect to

accept compensation under the Plan, the following benefits are

awarded:

1. Petitioner, Clarice Tabb, is accorded a

lump sum award of One hundred thousand

dollars ($100,000.00). Section 766.31(1)(b),

Florida Statutes.

2. Petitioner is accorded an award of Nine

thousand four hund red sixty - five dollars and

twenty - six cents ($9,465.26) for attorney's

fees and other expenses incurred in pursuing

the subject claim. Section 766.31(1)(c),

Florida Statutes.

3. There being no past medical expenses

recoverable under Section 766.31(1)(a) ,

Florida Statutes, no award is made for past

medical expenses. Section 766.31(2), Florida

Statutes.

4. NICA, consistent with Section

766.31(1)(a), Florida Statutes, shall pay all

future expenses, as incurred. Section

766.31(2), Florida Statutes.

It i s FURTHER ORDERED that Memorial Hospital complied with

the notice provisions of the Plan, but Dr. Valente (the

participating physician) did not.

It is FURTHER ORDERED that the Division of Administrative

Hearings retains jurisdiction over this matter to res olve any

disputes, should they arise, regarding the parties' compliance

with the terms of this Final Order. Section 766.312, Florida

Statutes.

DONE AND ORDERED this 17th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

__________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 17th day of July, 2003.

ENDNOTES

1/ NICA also de veloped a sample form titled "Notice to Obstetric

Patient," which hospitals and participating physicians could

adapt for their use and have their obstetrical patients sign

acknowledging receipt of the brochure. NICA also distributed

that form to participa ting physicians and hospitals. The form

developed by NICA provided, as follows:

NOTICE TO OBSTETRIC PATIENT

(See Section 766.316, Florida Statutes)

I have been furnished information by NAME OF

DOCTOR/AND OR HOSPITAL prepared by the

Florida Birth Related Neurological Injury

Compensation Association (NICA), and have

been advised that ( NAME OF DOCTOR ) is a

participating physician in that program,

wherein certain limited compensation is

available in the event certain neurological

injury may occur during labo r, delivery or

resuscitation. 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 a

copy of the brochure prepared by NICA.

DATED this ____ day of _____________, 200__.

_______________________

Signature of Patient

________________________

( Printed name of patient)

Social Security No.:_______________________

Attest:

_______________________

Nurse or Physician

Date: ________________

This form is informational only, and

each person, participating physician or

hospital should contact their own

attorney to ensure compliance with

Section 766.315, Florida Statutes.

2/ Dr. Valente also contended that, at the time of Ms. Tabb's

initial visit, her office routinely had the patient sign a Notice

to Obstetric Patient form, acknowledging receipt of the NICA

brochure; however, the more persuasive proof is to the contrary.

Accordingly, it is unnecessary to address Dr. Valente's

explanation for the absence of such a form in Ms. Tabb's file.

3/ Briefly stated, the testimony of Dr. Valente and her office

manager (Erica Shearn) on the issue was less than credible, and

the testimony offered on behalf of Petitioners was most

persuasive and consistent with the other proof of record.

COPIES FURNISHED:

(By certified mail)

Richard L . Nichols, Esquire

3000 Hartley Road, Suite 5

Jacksonville, Florida 32257

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Flor ida 32308

Ronald A. Labasky, Esquire

Landers & Parson, P.A.

310 West College Avenue

Tallahassee, Florida 32301

Mary Bland Love, Esquire

Gobelman, Love, Gavin, Blazs & Mathis

815 South Main Street, Suite 300

Jacksonville, Florida 32207

James C. Rinama n, Jr., Esquire

Marks Gray, P.A.

Post Office Box 447

Jacksonville, Florida 32201

Grace M. Valente, M.D.

1522 Oak Street

Jacksonville, Florida 32204

Memorial Healthcare Group

3625 University Boulevard, South

Jacksonville, Florida 32216

Ms. Charlene W illoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

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 766.3 11,

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, ac companied 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.