03-000985N Craig Joshnick And Debbie Joshnick, As Parents And Natural Guardians Of Austin K. Joshnick, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, April 7, 2004.

Summary: Obstetrical services were not provided by a participating physician at birth, and the facts failed to support a finding that the Florida Birth-Related Neurological Injury Compensation Association was estopped to deny coverage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRAIG JOSHNICK AND DEBBIE )

JOSHNICK, as parents and )

natural guardians of AUSTIN K. )

JOSHNICK, a minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 0985N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Resp ondent, )

)

and )

)

MICHAEL A. DAWSON, M.D.; )

DAVID O. PETERFREUND, M.D.; )

PATRICIA ST. JOHN, M.D.; BAY )

AREA WOMEN'S CARE, INC.; and )

MORTON PLANT HOSPITAL )

ASSOCIATION, INC., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

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

in the above - styled case on January 20 and 21, 2004, in

St. Petersburg, Florida.

A PPEARANCES

For Petitioners: John P. Fenner, Esquire

2840 Northwest Boca Raton Boulevard

Suite 107

Boca Raton, Florida 33431

For Respondent: Donald H. Whittemore, Esquire

Andrew W. Rosin, Esquire

Phelps Dunbar LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

For Intervenors: James A. Martin, Jr., Esquire

MacFarlane, Ferguson & McMullen

Post Office Box 1669

Clearwater, Florida 33757

STATEMENT OF THE ISSUES

1. When, as here, obstetrical services were not provided by

a "participating physician" at t he infant's birth, does the

administrative law judge have jurisdiction to resolve whether the

Respondent may, nevertheless, be estopped to deny coverage under

the Florida Birth - Related Neurological Injury Compensation Plan

(Plan), and, if so, whether the p roof supports a claim of

estoppel.

2. If the proof supports a claim of estoppel, whether

Austin K. Joshnick (Austin), a minor, suffered a "birth - related

neurological injury," as defined by the Plan.

PRELIMINARY STATEMENT

On March 14, 2003, Craig Joshnick and Debbie Joshnick, as

parents and natural guardians of Austin K. Joshnick, a minor,

filed a petition (claim) with the Division of Administrative

Hearings (DOAH) for compensation under the Florida Birth - Related

Neurological Injury Compensation Plan.

DOA H served the Florida Birth - Related Neurological Injury

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

March 25, 2003, and on April 16, 2003, NICA responded with a

Motion for Summary Final Order, based on the premise that,

indisputably, the phy sicians who provided obstetrical services

during Austin's birth (Michael A. Dawson, M.D.; David O.

Peterfreund, M.D.; and Patricia St. John, M.D.) were not

"participating physician[s]," as defined by the Plan, and,

consequently, Petitioners did not qualify for Plan coverage.

§§ 766.309(1) and 766.31(1), Fla. Stat. 1

Petitioners did not respond to the Motion for Summary Final

Order, and on May 1, 2003, an Order to Show Cause was entered

which provided "that within 10 days of the date of this Order,

Petitione rs show good cause in writing, if any they can, why the

relief requested by Respondent should not be granted."

Subsequently, Dr. Dawson; Dr. Peterfreund; Dr. St. John; Bay Area

Women's Care, Inc.; and Morton Plant Hospital Association, Inc.

(Morton Plant Hospital), requested and were accorded leave to

intervene.

On June 30, 2003, the extended deadline, Petitioners filed

their response to the Motion for Summary Final Order and Order to

Show Cause, and averred that, if obstetric services were not

rendered by a participating physician at birth, Respondent was

estopped to deny coverage. Petitioners' response also included a

request for leave to file an amended petition to raise their

claim of estoppel.

On July 28, 2003, a hearing was held to address Respondent 's

Motion for Summary Final Order and Petitioners' Motion to Amend

Petition and to Supplement Petition. The results of that hearing

were memorialized by Order of July 29, 2003, as follows:

1. Ruling on Respondent's motion is deferred

for 15 days. Within such period, the parties

are accorded a final opportunity to identify

any participating physician who delivered

obstetrical services in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in the hospital, or, if a

teaching hospital, by a certified nurse

midwife supervised by a participating

physician. Sections 766.309(1) and

766.314(4)(c), Florida Statutes.

2. Respondent and Intervenors are accorded

10 days from the date of this order to file,

if they be so advised, any response to

Petitioners' claims of estoppel.

3. Petitioners' Motion to Amend Petition and

to Supplement Petition is granted.

Subsequently, by Order of August 14, 2003, Respondent's

Motion for Summary Final Order was denied. Respondent was

accorded 20 d ays to file its response to the amended petition.

On November 7, 2003, the extended deadline, NICA filed its

response to the amended petition. By its response, NICA averred

Petitioners were not entitled to Plan coverage because

obstetrical services were n ot provided by a participating

physician at birth and because Austin did not suffer a birth -

related neurological injury. §§ 766.309(1) and 766.31(1), Fla.

Stat. As for Petitioners' claim of estoppel, NICA was of the

view that the administrative law judge was without jurisdiction

to address the issue, and that the facts did not support a claim

of estoppel. Subsequently, given the pleadings, a hearing was

scheduled to resolve the issues of compensability and estoppel.

At hearing, Petitioners Craig Joshnick and Debbie Joshnick

testified on their own behalf, and called Teena Herschowsky,

Keith Decker, Lisa Weisickle, Kelly Case, Helen K. Shipley,

Paul Gatewood, M.D., and Robert Nahouraii, M.D., as witnesses.

Petitioners' Exhibits 1 - 10, 12 - 25, and 27 - 37, were received into

evidence. 2 Respondent called Michael Duchowny, M.D., as a

witness, and Respondent's Exhibits 1 - 3, 5, 6, 8, 11A, 11B, 11C,

and 12 - 14, were received into evidence. 3 No other witnesses were

called, and no further exhibits were offered.

The tr anscript of the hearing was filed on February 20,

2004, and the parties were accorded, at their request, until

March 8, 2004, to file proposed orders. Consequently, the

parties waived the requirement that an order be rendered within

30 days after the tran script has been filed. See Fla. Admin.

Code R. 28 - 106.216(2). The parties' proposals have been duly

considered.

FINDINGS OF FACT

Preliminary findings

1. Craig Joshnick and Debbie Joshnick are the natural

parents and guardians of Austin K. Joshnick, a minor. Austin was

born a live infant on January 18, 2001, at Morton Plant Hospital,

a hospital located in Pinellas County, Florida, and his birth

weight exceeded 2,500 grams.

2. None of the physicians who provided obstetrical services

during Austin's b irth (Doctors Michael A. Dawson, David O.

Peterfreund, or Patricia St. John) were "participating

physician[s]" in the Florida Birth - Related Neurological Injury

Compensation Plan, as defined by Section 766.302(7), Florida

Statutes. 4

Coverage under the Plan

3. In resolving whether a claim is covered by the Plan, the

administrative law judge must resolve "[w]hether the injury

claimed is a birth - related neurological injury" 5 and "[w]hether

obstetrical services were delivered by a participating physician

in th e course of labor, delivery, or resuscitation in the

immediate postdelivery period." § 766.309(1), Fla. Stat. 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 the birth." § 766.31(1), Fla.

Stat.

4. In this case, Petitioners and Intervenors are of the

view that the claim is compensable since, in their opinion,

Austin suffered a "birth - re lated neurological injury" (because he

suffered an "injury to the brain . . . caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period . . . which render[ed] . . . [ him] permanently and

substantially mentally and physically impaired"), and because,

while obstetrical services were not rendered by a "participating

physician" at Austin's birth, Respondent is estopped from denying

coverage on that basis.

5. In contrast, NICA is of the view that the claim is not

compensable since, in its opinion, Austin did not suffer a

"birth - related neurological injury" (because his impairments are

not associated with any event that occurred during labor,

delivery, or resuscitation, and because Austin is not permanently

and substantially mentally and physically impaired), and because

obstetrical services were not rendered by a "participating

physician" at Austin's birth. As for the claim of estoppel, NICA

is of the opinion that the admin istrative law judge is without

jurisdiction to address the issue and, if subject to resolution

in the administrative forum, the facts do not support a claim of

estoppel.

6. Here, for reasons appearing in the Conclusions of Law,

it is concluded that the issue of estoppel is appropriately

resolved in the administrative forum. As for the claim of

estoppel, it must be resolved, based on the Findings of Fact and

Conclusions of Law which follow, that the record does not support

such a claim. Consequently, gi ven the lack of a participating

physician at birth, the claim is not compensable, and it is

unnecessary to address whether Austin suffered a birth - related

neurological injury.

Findings relating to Austin's birth and the giving

of NICA notice by the hospita l

7. At or about 11:30 p.m., January 16, 2001, Mrs. Joshnick

(with an estimated date of delivery of February 28, 2001, and the

fetus at 34 weeks' gestation) experienced the onset of severe

abdominal pain and was advised by her obstetrician

(Dr. Peterfreu nd), to proceed to the hospital for evaluation.

Mrs. Joshnick's husband called 911, and Mrs. Joshnick was

transported by ambulance to Morton Plant Hospital, where she was

received at 1:04 a.m., January 17, 2001.

8. On arrival, Mrs. Joshnick complained of uterine cramping

(since 11:30 p.m., January 16, 2001) and severe pain. Initial

evaluation revealed the membranes were intact, no vaginal

bleeding, and the cervix at 1 centimeter dilation, effacement at

30 percent, and the fetus at - 3 station. Evaluation further

revealed the fetus was active, and fetal monitoring revealed a

reassuring fetal heart rate, with a baseline of 145 - 155 beats per

minute.

9. Mrs. Joshnick was admitted for evaluation and pain

relief, and at 7:50 a.m., Terbutaline was started to di scourage

premature labor. Evaluation by renal ultrasound was negative,

without evidence of stone, mass, or hydronephrosis, and

urinalysis failed to reveal any evidence of infection.

Nevertheless, Mrs. Joshnick was started on antibiotics, with the

expecta tion that if her pain was associated with a urinary tract

infection, it would resolve with the antibiotics.

10. However, Mrs. Joshnick's abdominal pain persisted, and

at 5:00 p.m., her attending obstetrician (Dr. Dawson) made the

following observations:

. . . abd[ominal] pain - ? etology - doubt

kidney stone or U[terine] T[ract] I[nfection]

@ present . . . in light of fetal tachycardia

(although variability reassuring) and

abdominal pain w/uterine irritability - must

consider possible abruption or

chorioamn ionities [an infection of the

placental and fetal membranes] . . . .

D[iscussed]/W[ith] pt. above differential

. . . [and] decision made to proceed

w/amnio[centesis] to evaluate F[etal] L[ung]

M[aturity]/infection.

11. At 6:30 p.m., the amniocentes is was performed by

Dr. Dawson, with Dr. St. John assisting. The amniocentesis

revealed a large number of maternal blood cells, and Dr. Dawson

made the following observations:

. . . in light of continued pain/uterine

irritability & blood on amnio & fetal

tachycardia consider at least partial

placental separation - will plan for delivery

@ this time by induction[.] Will monitor

baby closely for sym[ptoms] of intolerance to

labor or fetal distress. Pt & husband aware

of R[isks]/B[enefits]/A[lternatives] of

expectant mgmt vs active

induction/augmentation of labor of preterm

infant. They are aware of risks of fetal

lung immaturity, interventricular hemorrhage

& necrotizing enterocolitis. They were

understanding & agree w/plan to proceed

w/induction of labor . Will start Petocin for

augmentation.

At 7:15 p.m., Mrs. Joshnick was admitted to labor and delivery

for active induction/augmentation of labor.

12. Following admission, at or about 10:00 p.m., the labor

and delivery nurse on duty at the time, Cynthia Collins, R.N.,

presented three forms for Mrs. Joshnick or, if she were unable to

do so, Mr. Joshnick's signature: an Informed Consent for

Epidural Anesthesia Authorizing Anesthesia Associates of Pinellas

County to administer an epidural anesthetic; a Reco rd of Informed

Consent and Consent for Procedure, authorizing Mrs. Joshnick's

obstetrician to perform a vaginal delivery with possible

episiotomy, forceps - assisted vaginal delivery, or vacuum

extraction or cesarean section, and acknowledgment of receipt of

a "NICA Pamphlet"; and a Record of Informed Consent for

Procedure, authorizing Austin's circumcision. (Petitioners'

Exhibit 2, Tab 2, page 5, and Tab 3, pages 3 and 4).

Mrs. Joshnick signed the consent for epidural anesthesia, and

Mr. Joshnick, who was present at the time, signed the consent for

procedure and acknowledgment of receipt of the NICA pamphlet, as

well as the consent for Austin's circumcision. Notably, it is

the circumstances surrounding the giving of NICA notice,

discussed infra , which form the predicate for Petitioners' claim

of estoppel. 6

13. At or about 2:17 a.m., January 18, 2001, following

execution of the consents, hydration and other preparations,

epidural anesthetic was started, and, at 3:30 a.m., Petocin was

started via pump. Ther eafter, Mrs. Joshnick's labor steadily

progressed, and at 12:46 p.m., 7 Austin was delivered. 8

Petitioners' claim of estoppel

14. In this case, Petitioners' claim of estoppel, although

occasionally blurred, is two - fold. First, Petitioners contend

that ce rtain comments made by Nurse Collins when she delivered

the NICA pamphlet, together with Mrs. Joshnick's reliance on

those statements in deciding not to insist on a cesarean section,

support a finding of coverage by estoppel. On that issue,

Mrs. Joshnick offered the following testimony, at hearing:

Q. Did you have medical care during the

pregnancy?

A. Yes.

* * *

Q. . . . who was your primary obstetrician?

A. Dr. St. John.

* * *

Q. On one of your initial visits, did

Dr. St. John discuss a nything with you?

A. Yeah. She discussed the fact that I had

a small pelvis and that they had to use

smaller speculums, so must likely I'd be

having a C - section.

* * *

Q. . . . [A]t the time you got the NICA

pamphlet [were you in pain?]

A. Oh, yeah. I was out of it. I would say

I was in severe pain.

Q. Had you been sedated?

A. No. I wasn't given any drugs up until --

you know, after that pamphlet and signatures

came.

Q. No drugs for pain?

A. No.

Q. And you were in substantial pain?

A. Yes.

Q. In fact, did you sign the receipt for the

NICA pamphlet?

A. I think I had Craig handle that. I

believe Craig signed for it . . . .

* * *

Q. What did Nurse Collins say to you about

the NICA pamphlet?

A. She said it was like an in surance policy.

We were covered if anything were wrong with

the baby at delivery.

Q. Okay. Had Dr. St. John mentioned any --

for reasons to do a vaginal delivery in your

discussions? Did she mention any problems

you might have?

A. She -- when I ques tioned her about the C -

section, she said that I was in grave

condition and I had lost too much blood. And

I said, really, because I didn't realize I

had lost that much blood. So I was like,

okay. I believed that I was in grave

condition and lost too mu ch blood to have a

C - section.

Q. So in short, you understood that there

were dangers to you from a Cesarean Section?

A. Yes.

Q. Okay. At the same time, you had

testified you were entertaining the

possibility of leaving the hospital?

A. I had said to my brother, Keith, quite

frankly, get me some drugs or get me the hell

out of here; there's a problem. I felt we

were going on too long without pain

medication, and the baby was in duress [sic]

and all these other things. I wanted some

action taken.

* * *

Q. I guess I'm leading up to the question.

Did you feel even at that stage that you had

options?

A. Yes.

Q. And what did those options include?

A. Leaving -- you mean leaving the hospital?

My options were to, you know, seek other

m edical advice or get a second opinion or do

something, because I felt it was lagging. I

felt that this was going terribly wrong.

Q. Okay. Okay. Did the NICA pamphlet and

the nurse's explanation give you some

comfort?

A. Yes.

* * *

Q. And that 's not your signature on the

. . . [receipt for the NICA pamphlet?]

A. No.

Q. And that signature, is that of your

husband?

A. Correct.

Q. So this nurse comes in; you were in

severe pain; you were in and out of it, as

you said before, but you sp ecifically

remember the nurse coming in and describing

this NICA pamphlet?

A. Yes.

Q. Now, do you recall where your husband

signed this? Was this at the bedside, or did

-- because earlier you testified that you

told your husband, just take care of it,

which I guess is one reason why his

signature's on it. Did they step to the side

and sign it, or did he sign it right there at

the bedside with you?

A. I believe what happened was he stepped to

the side -- the nurse came over here in the

corner. The re was a sink on this side, if I

remember correctly.

* * *

Q. . . . [Y]ou testified that Dr. St. John

consulted with four other doctors --

A. Correct.

Q. . . . Do you remember what that

consultation was about?

A. About natural delivery versus the C -

section.

Q. And it was those four doctors that agreed

that you were to have a vaginal delivery;

isn't that correct?

A. That was my interpretation, yes.

* * *

Q. . . . so it's fair to say that you had a

lot of faith and confidence in Dr. St . John?

A. Yes. I trusted her.

Q. And she advised you that a vaginal

delivery was the best means to go; is that

correct?

A. Well, yeah. She told me that's what I

was having.

Q. So regardless of you ever seeing a NICA

pamphlet, you followed Dr. S t. John's orders

on her advices; is that correct?

A. Well, I was relying upon my doctor's

final say.

Q. Okay. Which was to have a vaginal

delivery; is that correct?

A. Correct.

* * *

Q. Earlier, you testified that the two times

that you sign ed for the receipt of the NICA

pamphlet, as we've been calling it, neither

of those times you ever read the pamphlet; is

that correct?[ 9 ]

A. That's correct.

Q. And you didn't read the pamphlet until,

you would say, two weeks or a week after --

A. I w ould say the first week . . . .

15. Also speaking to the estoppel issue was Mr. Joshnick,

who testified at hearing, as follows:

Q. This is the consent . . . and also . . .

a receipt for the NICA form. Is that your

signature?

A. Yes, it is.

Q. Okay. Why did you sign this document?

A. Well, the nurse handed me the pamphlet of

the NICA and gave a brief explanation for

what it was, and I figured, well, I guess I

should sign.

* * *

THE COURT: . . . When did you ultimately

read the pamphlet?

T HE WITNESS: Actually, I really didn't read

the pamphlet until quite a while later when I

-- when we were realizing that things had

gone wrong.

THE COURT: You're talking about months

later?

THE WITNESS: I really don't even know how

long [it] was.

THE COURT: After Austin's discharge from the

hospital?

THE WITNESS: Yes.

* * *

Q. What do you recall the nurse -- Nurse

Collins saying about the pamphlet, the NICA?

A. Just saying that it was somewhat like an

insurance policy. If things went wrong with

delivery and all that we'd be covered to a

certain degree.

* * *

Q. And when you signed for that, did you

sign for that at the bedside or away from the

bedside?

A. At the bedside.

Q. Were you given any other papers to sign?

A. It's very p ossible. It's quite a while

ago. I don't really recall. A lot of things

were happening.

Q. And did the nurse describe any of those

other papers that you saw?

A. I really don't recall anything on that,

no.

Q. So you recall the nurse discussing the

NICA pamphlet but no other documentation; is

that correct?

A. Correct.

16. Contrasted with Petitioners' testimony, Respondent

offered the deposition testimony of Nurse Collins. Not

unexpectantly, Nurse Collins did not recall the incident, but

offered the following testimony regarding her normal practice:

Q. . . . What was your normal business

practice of saying to patients about the NICA

pamphlet?

A. I would hand them the form that needed to

be signed, and I would tell them there were

two places th at needed to be signed. The

first one, I would usually hand them the

pamphlet and say -- customarily say, "Here is

this pamphlet. You are signing that you

received this pamphlet; not that you've read

it, just that you've received it. And you

need to sig n here, and then you need to sign

down at the bottom here for consent for these

procedures," and I would read over those

procedures with them.

Q. Would you volunteer anything about the

pamphlet?

A. If I volunteered anything at all, it

would only have b een that if it was the

neurological information -- well, what is it?

-- Neurological Injury Compensation

Association, and that if somebody [sic]

happened, you might have the possibility of

being covered.

* * *

Q. In your normal practice, what is you r

understanding of the NICA pamphlet . . . [?]

A. I didn't really -- I never read the

pamphlet. But I guess my understanding was

that if during the course of the birth of a

baby there was some neurological accident or

impairment, there might possibly be some

compensation available to them.

17. Finally, in the opinion of Dr. St. John, which stands

uncontradicted, there was no medical justification to deliver

Austin by cesarean section, and absent medical justification

surgery would be contraindicated and against her ethical

obligations. (Respondent's Exhibit 6, pages 21, 27 and 30).

18. Here, the testimony and other proof offered on the

issue of estoppel, predicated on Nurse Collins' remarks, have

been carefully considered, and found less than compe lling on some

key issues. First, the proof failed to demonstrate, with the

requisite degree of certainty, that Nurse Collins made an

affirmative assurance, without limitation, as opposed to a

general comment as to the nature of the program. In so

conclud ing, it is noted that, given the passage of time and

anxieties of the moment, it is unlikely either Mr. or

Mrs. Joshnick would recall any comment Nurse Collins made

regarding the NICA program, much less recall her remarks with any

degree of accuracy, and t hat the remarks they attribute to her

are so general, as not to reasonably support an assurance of

coverage, without limitation. Moreover, given Mrs. Joshnick's

condition on presentation to the hospital, and the events that

ensued, it is evident that it w as Dr. St. John's opinion that

vaginal delivery, not cesarean delivery was medically

appropriate, that Petitioners accepted that opinion, and that

Petitioners did not rely in whole or in part on NICA coverage in

deciding not to insist on a cesarean deliver y.

19. Finally, apart from Nurse Collins' comments,

Petitioners contend that NICA should be estopped to deny coverage

based on the NICA brochure. Pertinent to this claim, the

brochure provided:

Criteria and Coverage

Birth - related neurological injuries h ave been

defined as an injury to the spinal cord or

brain of a live - born infant weighing at least

2500 grams at birth. In the case of multiple

gestation, the live birth weight is 2000

grams for each infant. The injury must have

been caused by oxygen depr ivation or

mechanical injury, which occurred in the

course or labor, delivery or resuscitation in

the immediate post delivery period in a

hospital. Only hospital births are covered.

The injury must have rendered the infant

permanently and substantially m entally and

physically impaired. The legislation does

not apply to genetic or congenital

abnormalities. Only injuries to infants

delivered by participating physicians, as

defined in s. 766.302(7), Florida Statutes,

are covered by the Plan.

* * *

Yo u are eligible for this protection if your

doctor is a participating physician in the

NICA Plan. If your doctor is a participating

physician, that means that your doctor has

purchased this benefit for you in the event

that your child should suffer a birth - related

neurological injury, which qualifies under

the law. If your health care provider has

provided you with a copy of this

informational form, your health care provider

is placing you on notice that one or more

physician(s) at your health care provid er

participates in the NICA Plan.

(Petitioners' Exhibit 3) According to Petitioners:

A reasonable person would have concluded, "If

[Morton Plant] has provided [Petitioners]

with a copy of [the Pamphlet], . . . one or

more physician(s) at [Morton Plant]

p articipates in the NICA Plan." A fair

reading of the Pamphlet as a whole, is that

this participation of a Morton Plant

physician -- regardless of particular

obstetricians' participation -- was enough to

give Petitioners NICA coverage.

(Petitioners' Proposed Findings of Fact & Conclusions of L aw,

paragraph 20) However, a "fair reading" of the NICA pamphlet

does not support Petitioners' interpretation. Rather, the

brochure provides, unequivocally, that "[o]nly injuries to

infants delivered by participating p hysicians, as defined in s.

766.302(7), Florida Statutes, are covered by the Plan."

Moreover, Petitioners never read the pamphlet until well after

Austin's birth and, therefore, could not have relied,

detrimentally or otherwise, on its provisions.

CONCLUS IONS OF LAW

Jurisdiction

20. The Division of Administrative Hearings has

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

these proceedings. § 766.301, et seq. , Fla. Stat.

Compensability

21. In resolving whether a claim is covered by the Plan,

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

administrati ve law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption sh all 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 resuscitation

in the immediate postdelivery 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 postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An awar d 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 the birth."

§ 766.31(1), Fla. Stat.

22. Here , even though admittedly obstetrical services were

not delivered by a participating physician at Austin's birth and,

consequently, the claim is not covered by the Plan, Petitioners

contend they are entitled to recover under a theory of coverage

by estoppel . In response, NICA contends the Division of

Administrative Hearings is without jurisdiction to address the

issue of estoppel or, alternatively, that the facts do not

support a claim of estoppel. For the reasons that follow, it is

resolved that the Divis ion of Administrative Hearings has

jurisdiction to decide the issue of estoppel, but that the facts

do not support such a claim.

Jurisdiction to resolve the issue of estoppel

23. Effective July 1, 1998, the Legislature adopted Chapter

98 - 113, Laws of Flo rida, which amended Sections 766.301 and

766.304, Florida Statutes. Pertinent to this case, the

amendments (underlined) to Sections 766.301 and 766.304, Florida

Statutes, were, as follows:

766.301 Legislative findings and intent. --

(1) The Legislature m akes the following

findings:

* * *

(d) The costs of birth - related neurological

injury claims are particularly high and

warrant the establishment of a limited system

of compensation irrespective of fault. The

issue of whether such claims are covered by

this act must be determined exclusively in an

administrative proceeding.

* * *

766.304 Administrative law judge to

determine claims. -- The administrative law

judge shall hear and determine all claims

filed pursuant to ss. 766.301 - 766.316 and

shall exercise the full power and authority

granted to her or him in chapter 120, as

necessary, to carry out the purposes of such

sections. The administrative law judge has

exclusive jurisdiction to determine whether a

claim filed under this act is compensable .

No civil action may be brought until the

determinations under s. 766.309 have been

made by the administrative law judge. If the

administrative law judge determines that the

claimant is entitled to compensation from the

association, no civil action may b e brought

or continued in violation of the

exclusiveness of remedy provisions of s.

766.303 . . . . An action may not be brought

under ss. 766.301 - 766.316 if the claimant

recovers or final judgment is entered . . . .

Ch. 98 - 113, § 1, at 524, Laws of Fla.

24. By the amendments to Sections 766.301 and 766.304,

Florida Statutes, the Legislature expressed its intention that

the administrative law judge resolve all issues relative to

coverage. Fundamentally, whether the "infant . . . sustained a

birth - relate d neurological injury" and whether "obstetrical

services were delivered by a participating physician at birth,"

are clearly questions related to coverage. § 766.31(1), Fla.

Stat. Moreover, promissory estoppel may, under certain

circumstances, also suppor t a claim of coverage. See Crown Life

Insurance Co. v. McBride , 517 So. 2d 660 (Fla. 1988)(The general

rule is that the doctrine of estoppel based upon the conduct of

an insurer or its agent does not operate to create coverage where

coverage does not exis t. There is, however, a narrow exception

to this general rule, as when to refuse to enforce a promise

would sanction the perpetration of fraud or other injustice.)

Accord Wheeland v. State Farm Fire & Casualty Co. , 668 So. 2d 337

(Fla. 3d DCA 1996). Con sequently, given the language used by the

Legislature in its amendment to the Plan, it is resolved that all

questions of coverage, including those related to coverage by

estoppel, are properly decided in the administrative forum. See ,

e.g. , Warren v. Depa rtment of Administration , 554 So. 2d 568

(Fla. 5th DCA 1989).

Petitioners' claim of estoppel

25. When, as here, a party claims coverage by estoppel,

they must establish the facts necessary to support such claim by

clear and convincing evidence. Jarrard v. Associates Discount

Corp. , 99 So. 2d 272, 277 (Fla. 1957). ("[T]he burden of proving

all the facts essential to the working of an estoppel rests on

the party asserting it or on whose behalf it is applied . . . .

Before an estoppel can be raised, there must be certainty and the

facts necessary to constitute it cannot be taken by argument or

inference, nor supplied by intendment. They must be clearly and

satisfactorily proved.") Accord Barber v. Hatch , 380 So. 2d 536

(Fla. 5th DCA 1980). That standard requires that "the evidence

must be found to be credible; the facts to which the witnesses

testify must be distinctly remembered; the testimony must be

precise and explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evid ence must be of such

weight that it produces in the mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established." Slomowitz v. Walker , 429

So. 2d 797, 800 (Fla. 4th DCA 1983). In t his case, Petitioners

failed to sustain their burden or proof.

26. As heretofore noted, Petitioners' claim of estoppel is

two - fold. First, Petitioners contend that the comments made by

Nurse Collins when she delivered the NICA pamphlet, together with

Mrs . Joshnick's reliance on those statements in deciding not to

insist on a cesarean section, support a finding of estoppel.

Moreover, Petitioners contend, since NICA provided the pamphlet

to the hospital for distribution to its patients, NICA cloaked

Nurse Collins with apparent agency to act on its behalf and is

bound by her representations. Petitioners' contentions are

unpersuasive.

27. "Florida case law provides that an insurer may be held

accountable for the actions of those it cloaks with 'apparent

age ncy'." Almerico v. RLI Insurance Company , 716 So. 2d 774, 777

(Fla. 1998). "Further, a review of the case law on agency

indicates that evidence of indicia of agency may be demonstrated

if the insurer furnishes an insurance agent or agency with 'any

blank forms, applications, stationery, or other supplies to be

used in soliciting, negotiating, or effecting contracts of

insurance'." Id. Indicia of agency may likewise be demonstrated

when the company holds a person out to the public as an agent by

printing and delivering business cards designating him as such.

Hughes v. Pierce , 141 So. 2d 280 (Fla. 1st DCA 1961).

28. In this case, Nurse Collins was not NICA's agent or

employee, and the only evidence relied upon by Petitioners to

establish apparent agency was the pamphlet NICA prepared and

delivered to the hospital for distribution to its obstetrical

patients; notably, the pamphlet developed by NICA and furnished

to participating physicians and hospitals, such as Morton Plant

Hospital, so they could furnish a copy of the brochure to their

obstetrical patients, was required by law. 10 § 766.316, Fla.

Stat. Under such circumstances, the pamphlet did not cloak Nurse

Collins, or any other employee of the hospital, with apparent

authority to bind NICA, and it wo uld be unreasonable to conclude

otherwise. Consequently, there being no other evidence relied

upon by Petitioners to establish apparent authority, their claim

of apparent agency is rejected. Moreover, Petitioners' claim of

estoppel, based on the substanc e of Nurse Collins' statement,

must also fail.

29. To demonstrate estoppel, the following elements must be

established: "1. A representation as to a material fact that is

contrary to a later - asserted position; 2. A reasonable reliance

on that represent ation; and 3. A change in position detrimental

to the party claiming estoppel caused by the representation and

reliance thereon." Warren v. Department of Administration ,

545 So. 2d at 570.

30. As noted in the Findings of Fact, the proof failed to

demons trate, with the requisite degree of certainty, that

Nurse Collins made an affirmative assurance, without limitations,

as opposed to a general comment on the nature of the program.

Moreover, given the general nature of Nurse Collins' remarks,

without furth er elaboration or inquiry, it would not have been

reasonable to rely on her remarks as an affirmative assurance of

coverage. Additionally, as noted in the Findings of Fact,

Petitioners' testimony that Dr. St. John changed from a planned

cesarean delivery, to a vaginal delivery, or that Petitioners

relied in whole or in part on NICA coverage, not to insist on a

vaginal delivery, is not compelling or credible. Consequently,

the proof also failed to support a claim of estoppel based on

Nurse Collins' remarks .

31. Finally, Petitioners' claim of estoppel, predicated on

the NICA pamphlet, must also be rejected for two reasons. First,

as previously noted, the wording of the pamphlet is not

misleading, as Petitioners contend. Rather, the pamphlet is

unequivocal that "[o]nly injuries to infants delivered by

participating physicians, as defined in s. 766.302(7), Florida

Statutes, are covered by the Plan." Second, the wording of the

pamphlet would not under any circumstance support a claim of

estoppel, since Petit ioners did not read the pamphlet until well

after Austin's birth and could not have detrimentally relied on

its provisions. Consequently, the wording of the pamphlet does

not and could not support a claim of estoppel.

CONCLUSION

Based on the foregoing Fin dings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Craig Joshnick and Debbie Joshnick, as parents and natural

guardians of Austin K. Joshnick, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 7th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM 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 7th day of April, 2004.

ENDNOTES

1/ All citations a re to Florida Statutes (2000) unless otherwise

indicated.

2/ Petitioners' Exhibits 11 and 26 were marked for

identification only, and were not moved into evidence.

3/ With the parties' agreement, by Order of March 1, 2004,

Dr. Nahourii's deposition, ma rked as Respondent's Exhibit 11A at

hearing, and the exhibits to that deposition, marked as

Respondent's Exhibits 11B and 11C at hearing, were received into

evidence. Respondent's Exhibit 4 (the deposition of Keith

Decker) and Exhibit 7 (the deposition of Lisa Weisickle) were

marked for identification but, given Petitioners' objection, not

received into evidence. Respondent's Exhibit 9A (the deposition

of Dr. Duchowny) and 9B (the exhibits to Dr. Duchowny's

deposition) were marked for identification, but not moved into

evidence. Respondent's Exhibit 10 (the deposition of

Kelly Chase) was initially marked for identification, but was

physically withdrawn and is not a part of the record developed at

hearing.

4/ "Participating physician" is defined by Secti on 766.302(7),

Florida Statutes, 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

i njury the assessment required for

participation in the birth - related

neurological injury compensation plan for the

year in which the injury occurred. Such term

shall not apply to any physician who

practices medicine as an officer, employee,

or agent of th e Federal Government.

5/ "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 least 2,500 grams at

birth caused by oxygen deprivation or

me chanical 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. This definition shall apply to

live b irths only and shall not include

disability or death caused by genetic or

congenital abnormality.

6/ At some time following Mrs. Joshnick's presentation to Morton

Plan Hospital at 1:04 a.m., January 17, 2001, and most likely the

morning of January 17, 2 001, Mrs. Joshnick signed a Patient

Admission Agreement and Consent, which also included an

acknowledgment of "Receipt of NICA Information." (Petitioners'

Exhibit 2, Tab 2, pages 3 and 4). Here, the parties have

stipulated that Mrs. Joshnick also receive d a copy of the NICA

pamphlet on the signing of this document; however, there was no

proof offered regarding the circumstances surrounding the giving

of this notice, and it does not form a basis for Petitioners'

claim of estoppel.

7/ The hour of Austin's birth is noted on the Delivery Record by

Dr. St. John as 12:44 p.m., but otherwise noted in the medical

records as 12:46 p.m.

8/ Since it was unnecessary to address whether Austin suffered a

"birth - related neurological injury," details regarding

Mrs. Jo shnick's labor, as well as Justin's delivery and

subsequent development have been omitted.

9/ See Endnote 6.

10/ Pertinent to this case, at the time of Austin's birth,

Section 766.316, Florida Statutes, prescribed, as it does today,

the notice requirem ent, as follows:

Each hospital with a participating physician

on its staff and each participating physician

. . . 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 acknowle dging 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. (Emphasis

added)

Responding to Section 766.316, NICA developed a pamphlet titled

"Peace of Mind for an Unexpected Problem" (the NICA pamphlet 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. See , e.g. , Florida

Birth - Related Neurological Injury Compensation Association v.

Feld , 793 So. 2d 1070, 1071 (Fla. 4th DCA 2001)("NICA was

required by statute to furnish physicians forms providing notice

to obstetrical patients that the physicians' participation would

limit . . . [their] remedy for . . . [birth - related neurological

injuries]".)

COPIE S FURNISHED:

(By certified mail)

John P. Fenner, Esquire

2840 Northwest Boca Raton Boulevard

Suite 107

Boca Raton, Florida 33431

James A. Martin, Jr., Esquire

MacFarlane, Ferguson & McMullen

Post Office Box 1669

Clearwater, Florida 33757

Donald H. Whi ttemore, Esquire

Andrew W. Rosin, Esquire

Phelps Dunbar LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308 - 4567

Morton Plant Hospital

323 Jeffords Street

Clearwater, Florida 33756

Michael A. Dawson, M.D.

Bay Area Women's Care

1055 South Fort Harrison Avenue

Clearwater, Florida 33756

David O. Peterfreund , M.D.

Bay Area Women's Care

1055 South Fort Harrison Avenue

Clearwater, Florida 33756

Patricia St. John, M.D.

Bay Area Women's Care

1055 South Fort Harrison Avenue

Clearwater, Florida 33756

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypres s 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 766.311,

Florida Statutes. Review proceedings are g overned 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, wit h 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 o f rendition of the order to

be reviewed.