03-002749N Juanita Ruiz And Miguel Angel Ruiz, As Parents And Natural Guardians Of Michael A. Ruiz, A Minor, And Juanita Ruiz And Miguel Angel Ruiz, Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, September 28, 2004.

Summary: The Final Order resolved that the claim was compensable, an award was made, and it was resolved that the hospital gave notice but the participation physicians did not give notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUANITA RUIZ AND MIGUEL ANGEL )

RUIZ, as parents and natural )

guardians of MICHAEL A. RUIZ, a )

minor, and JUANITA RUIZ and )

MIGUEL ANGEL RUIZ, )

individually, )

)

Petitioners, )

) Case No. 03 - 2749N

vs. )

)

FLORIDA BIRTH - RELATED )

N EUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

PUBLIC HEALTH TRUST OF DADE )

COUNTY, d/b/a JACKSON NORTH )

MATERNITY CENTER and UNIVERSITY )

OF MIAMI, d/b/a UNIVERSITY OF )

MIAMI SCHOOL OF MEDICINE, )

)

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 J une 17, 2004, by

video teleconference, with sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioners: Lincoln J. Connolly, Esquire

Charles H. Baumberger, Esquire

Rossman, Baumberger & Reboso, P.A.

44 West Flagler Street, Suite 2300

Miami, Florida 33130 - 1808

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6 C ourt

Plantation, Florida 33324

For Intervenor Public Health Trust of Dade County, d/b/a

Jackson North Maternity Center:

Stephen A. Stieglitz, Esquire

Metro - Dade Center

111 Northwest First Street, Suite 2800

Miami, Florida 33128 - 1993

For Intervenor University of Miami, d/b/a University of

Miami School of Medicine:

Steven E. Stark, Esquire

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast Second Street

Miami, Florida 33131

STATEMENT OF THE IS SUES

1. Whether Respondent's proposal to accept the claim as

compensable should be approved.

2. If so, the amount and manner of payment of the parental

award, the amount owing for attorney's fees and costs incurred

in pursuing the claim, and the amount owing for past expenses.

3. Whether notice was accorded the patient, as

contemplated by Section 766.16, Florida Statutes (Supp. 1998),

or whether the failure to give notice was excused because the

patient had an "emergency medical condition," as defined b y

Section 395.002(9)(b), Florida Statutes (Supp. 1998), or the

giving of notice was otherwise not practicable.

PRELIMINARY STATEMENT

On July 17, 2003, Juanita Ruiz and Miguel Angel Ruiz, as

parents and natural guardians of Michael A. Ruiz (Michael), a

min or, and Juanita Ruiz and Miguel Angel Ruiz, individually,

filed a petition (claim) with the Division of Administrative

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

Neurological Injury Compensation Plan (Plan). Pertinent to this

case, a part from contending that Michael suffered an injury

compensable under the Plan, Petitioners also sought to avoid a

claim of Plan immunity in a civil action, by averring that, and

requesting a finding that, "Petitioners were provided with

notice of Jackson North Maternity Center's participation in

. . . [the Plan] prior to the birth, but were never provided

notice of the University of Miami's, or its physicians'

participation in . . . [the Plan]."

DOAH served the Florida Birth - Related Neurological Injur y

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

July 30, 2003, and on March 29, 2004, following a number of

extensions of time to do so, NICA filed a Notice of

Compensability, wherein it agreed the claim was compensable, and

requested that th e issues of compensability and notice be

bifurcated from those related to an award. In the interim, by

Order of March 3, 2004, the Public Health Trust of Dade County,

d/b/a Jackson North Maternity Center and the University of

Miami, d/b/a University of Mi ami School of Medicine, were

accorded leave to intervene.

On April 7, 2004, Petitioners served an amended petition

which, apart from contending that Michael suffered an injury

compensable under the Plan, also sought to avoid Plan immunity

by averring that, and requesting a finding that, Jackson North

Maternity Center, the facility at which the birth occurred, was

not a "hospital," as that term is used in the Plan; that neither

Paul Norris, M.D., nor Bel Barker, M.D., physicians who provided

obstetrical serv ices at birth, was a "participating physician,"

as that term is defined by the Plan; and that neither the

physicians nor Jackson North Maternity Center gave notice, as

required by the Plan. NICA responded to the amended petition on

April 8, 2004, wherein it again agreed the claim was

compensable, and requested that the issues of compensability and

notice be bifurcated from those related to an award. By Order

of April 13, 2004, NICA's request for bifurcation was denied,

and the case progressed toward a sch eduled June 17 and 18, 2004,

hearing date. Notably, prior to hearing, Petitioners agreed

that Jackson North Maternity Center was a "hospital," as that

term is used in the Plan, and that Doctors Norris and Barker

were "participating physicians," as that te rm is defined by the

Plan. Consequently, the case proceeded to hearing on the issues

heretofore set forth in the Statement of the Issues.

At hearing, Juanita Ruiz testified on her own behalf, and

Petitioners' Exhibits 1, 2, 4 - 9, 11 - 17, 19, and 20, were

re ceived into evidence. 1 Respondent's Exhibits 1 - 3, Intervenor

Public Health Trust of Dade County's (PHT's) Exhibits 1 - 6, and

Intervenor University of Miami's Exhibits 1, 2 (except the

Public Health Trust of Dade County's answer to Interrogatory

1(c)), 3 an d 4, were received into evidence. No other witnesses

were called, and no further exhibits were offered.

The transcript of the hearing was filed July 9, 2004, and

the continued deposition of Barry Materson, M.D., was filed

July 23, 2004. Consequently, the parties were initially

accorded 10 days from July 23, 2004, to file proposed final

orders; however, at their request, the time for filing proposed

orders was later extended to August 9, 2004. Petitioners and

Intervenor University of Miami elected to file such proposals

and they have been duly considered.

FINDINGS OF FACT

Findings related to compensability

1. Juanita Ruiz and Miguel Angel Ruiz, are the natural

parents and guardians of Michael A. Ruiz, a minor. Michael was

born a live infant on August 1 4, 1998, at Jackson North

Maternity Center, a hospital located in Dade County, Florida,

and his birth weight exceeded 2,500 grams.

2. Among the physicians providing obstetrical services at

Michael's birth were Paul Norris, M.D., and Bel Barker, M.D.,

who, at all times material hereto, were "participating

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

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

Statutes (1997). 2

3. When it has been established that obstetrical services

were provided by a participating physician at the infant's

birth, coverage is afforded by the Plan if it is also shown the

infant suffered a "birth - related neurological injury," defined

as an "injury to the brain . . . of a live infant weighing at

least 2,500 grams at birth caused by oxygen deprivation . . .

occurring in the course of labor, delivery, or resuscitation in

the immediate postdelivery period in a hospital, which renders

the infant permanently and substantially mentally and physically

impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and

766.31(1), Fla. Stat.

4. In this case, it is undisputed, and the proof is

otherwise compelling, that Michael suffered severe brain injury

caused by oxygen deprivation occurring in the course of labor,

delive ry, or resuscitation in the immediate postdelivery period

in the hospital which rendered him permanently and substantially

mentally and physically impaired. Therefore, the claim is

compensable, and NICA's proposal to accept the claim is

approved. §§ 766. 309 and 766.31(1), Fla. Stat.

Findings related to the award

5. When it has been resolved that a claim qualifies for

coverage under the Plan, the administrative law judge is

required to make a determination of how much compensation should

be awarded. § 766.31(1), Fla. Stat. Pertinent to this case,

Section 766.31(1), Florida Statutes, provided for an award of

compensation for the following items:

(a) Actual expenses for medically necessary

and reasonable medical and hospital,

habilitative and training, residential, and

custodial care and service, for medically

necessary drugs, special equipment, and

facilities, and for related travel . . . .

(b) Periodic payments of an award to the

parents or legal guardians of the infant

found to have sustained a birt h - related

neurological injury, which award shall not

exceed $100,000. However, at the discretion

of the administrative law judge, such award

may be made in a lump sum.

(c) Reasonable expenses incurred in

connection with the filing of a claim under

ss. 7 66.301 - 766.316, including reasonable

attorney's fees, which shall be subject to

the approval and award of the administrative

law judge . . . .

6. In this case, Petitioners and NICA have agreed that,

should Petitioners elect to accept benefits under the Plan,

Petitioners recover the following award:

(a) Reimbursement of actual expenses

already incurred in the sum of $190.65

together with the right to receive

reimbursement of actual expenses for future

medical bills pursuant to § 766.31(1)(a),

Fla. Stat.

(b) A lump sum payment of $100,000.00 to

the Petitioners in accordance with

§ 766.31(1)(b), Fla. Stat.

(c) Reimbursement of reasonable expenses,

inclusive of attorney's fees and costs to

the Petitioners, in the total sum of

$10,580.33, pursuant to § 76 6.31(1)(c), Fla.

Stat.

The notice provisions of the Plan

7. While the claim qualifies for coverage under the Plan,

Petitioners have responded to the health care providers' claim

of Plan immunity in a pending civil action, by averring that the

health c are providers failed to give notice, as required by the

Plan. Consequently, it is necessary to resolve whether the

notice provisions of the Plan were satisfied. O'Leary v.

Florida Birth - Related Neurological Injury Compensation

Association , 757 So. 2d 624 , 627 (Fla. 5th DCA 2000)("All

questions of compensability, including those which arise

regarding the adequacy of notice, are properly decided in the

administrative forum.") Accord University of Miami v. M.A. , 793

So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Fl orida Birth - Related

Neurological Injury Compensation Association , 29 Fla. L. Weekly

D1982b (Fla. 1st DCA August 30, 2004). See also Behan v.

Florida Birth - Related Neurological Injury Compensation

Association , 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All

Children's Hospital, Inc. v. Department of Administrative

Hearings , 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying

conflict); Florida Health Sciences Center, Inc. v. Division of

Administrative Hearings , 871 So. 2d 1062 (Fla. 2d DCA

2004)(same); and Flor ida Birth - Related Neurological Injury

Compensation Association v. Ferguson , 869 So. 2d 686 (Fla. 2d

DCA 2004)(same).

8. At all times material hereto, Section 766.316, Florida

Statutes (Supp. 1998), prescribed the notice provisions of the

Plan, as follow s:

Each hospital with a participating physician

on its staff and each participating

physician, other than residents, assistant

residents, and interns deemed to be

participating physicians under s.

766.314(4)(c), under the Florida Birth -

Related Neurological Injury Compensation

Plan shall provide notice to the obstetrical

patients as to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shall

include a clear and co ncise 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)][ 3 ] or when notice is not

pra cticable.

9. Pertinent to this case, Section 395.002(9)(b), Florida

Statutes (Supp. 1998), defined "emergency medical condition" to

mean:

(b) With respect to a pregnant woman:

1. That there is inadequate time to effect

safe transfer to another hospita l prior to

delivery;

2. That a transfer may pose a threat to the

health and safety of the patient or fetus;

or

3. That there is evidence of the onset and

persistence of uterine contractions or

rupture of the membranes.

10. Responding to Section 766.3 16, Florida Statutes, NICA

developed a brochure, titled "Peace of Mind for an Unexpected

Problem" (the NICA brochure), which contained a clear and

concise explanation of a patient's rights and limitations under

the Plan, and distributed the brochure to par ticipating

physicians and hospitals so they could furnish a copy of it to

their obstetrical patients. (Petitioners' Exhibit 15, the NICA

brochure, "This brochure is prepared in accordance with the

mandate of § 766.316, Florida Statutes.")

Findings related to the hospital and notice

11. Pertinent to the hospital and the notice issue, the

proof demonstrates that on Wednesday, July 22, 1998, Mrs. Ruiz,

accompanied by her husband, presented for pre - registration at

Jackson North Maternity Center, a hospital o wned and operated by

the Public Health Trust of Dade County at 14701 Northwest 27th

Avenue, Opa Locka, Florida. At the time, consistent with

established practice, Mrs. Ruiz was interviewed by a health

service representative, and asked to provide pertinent personal

and financial information for herself and her husband, including

address, telephone number, place of employment, monthly wages

and expenses, and the identity of any commercial insurer, so the

service representative could complete a number of form s. At

this time, the service representative also entered pertinent

data regarding the Ruizes in the hospital computer data base.

12. During the interview process, four or six forms were

routinely completed, depending on whether the patient had

commerci al coverage, in which case four forms were completed, or

whether the patient desired to apply for Medicaid, in which case

six forms were completed. (Petitioners' Exhibit 6, pages 24 - 29

and Petitioners' Exhibit 5, pages 18 and 20). According to the

proof, the first form was referred to as "Chronological notes,"

on which the service representative noted the need for any

additional information or follow - up, and is not pertinent to

this case. The second, third, and fourth forms that were

completed in all cas es, were the Application for Credit (on

which the service representative noted the personal and

financial information provided for the patient and her

guarantor, here, Mr. Ruiz, including address, telephone number,

place of employment, monthly wages and ex penses, and the

identity of any commercial insurer, and to which the patient and

her guarantor attested by signing), the Indigent Income

Attestation form (on which the service representative noted the

gross family income for the past 12 months, as disclose d by the

patient, and to which the patient and her guarantor attested by

signing), and the Patient Funding Source form (on which the

patient and her spouse attested that they had no other source of

funding, other than that disclosed on the insurance benefi ts

worksheet). (Petitioners' Exhibit 6, pages 24 - 29 and PHT's

Exhibit 1, E xhibits 5 - 7). If the patient wished to apply for

Medicaid, the service representative completed a Referral to

Medicaid for the patient's signature (form five) and gave the

patient an Application for Medicaid (form six) to complete and

sign. 4 Here, there is no compelling proof that Mrs. Ruiz chose

to apply for Medicaid at pre - registration. Indeed, the only

forms she signed at pre - registration, that are of record, are

the Applicatio n for Credit, Indigent Attestation form, and

Patient Funding Source form, and the only Medicaid Assistance

Referral form of record was dated August 14, 1998, following

Michael's birth. (PHT's Exhibit 1, E xhibits 5 - 7 and 9, and

Petitioners' Exhibit 5, page s 18 - 22).

13. Following completion of the interview process,

Mrs. Ruiz was given three pamphlets, an Advance Directives

brochure (a pamphlet that explained the living will), a NICA

brochure, in Spanish, titled "Peace of Mind for an Unexpected

Problem," 5 a nd a Patient's Bill of Rights brochure. According to

the proof, the pamphlets were stapled together, with the Advance

Directives brochure, being the longest, on the bottom, followed

by the NICA brochure, which was a little smaller, and then the

Patient's Bill of Rights brochure, which was the smallest, on

top. As configured, all three brochures were visible when

presented or held. Contemporaneously, Mrs. Ruiz was asked to

sign a form acknowledging receipt of the NICA brochure. (PHT's

Exhibit 1, pages 26 and 27). That form provided, as follows:

He recibido el folleto intitulado

"Tranquilidad Mental" preparado por la

Asociacion de Compensaciones por Lestones

Neurologicas Relacionadas con el Nacimiento,

del Estado de la Florida (Florida Birth -

Related Neuro logical Injury Compensation

Association).

___________________________________________

Firma del Paciente

Fecha: ___________________________________

Testigo: _________________________________

Mrs. Ruiz signed the form, acknowledging receipt of the NIC A

brochure, and the service representative witnessed and dated the

form. 6 Thereafter, the service representative provided Mrs. Ruiz

with a gift package for expectant mothers, and the pre -

registration process was completed. In all, pre - registration

typica lly took 10 to 15 minutes to complete.

Findings related to the participating

physicians and notice

14. Pertinent to the participating physicians and the

notice issue, the proof demonstrates that the participating

physicians in this case (Doctors Paul Nor ris and Bel Barker)

held appointments as full - time members of the faculty at the

University of Miami, with the rank of assistant professors of

clinical obstetrics and gynecology, and also held contracts with

the Public Health Trust to provide, inter alia , supervision for

physicians in the Trust's resident physician training program.

(Petitioners' Exhibits 13 and 14, and PHT's Exhibits 4 and 5).

Among the terms of their agreement with the Public Health Trust,

Doctors Norris and Barker, as attending physici ans in the

resident physician training program, agreed

4. To supervise medical care to patients

provided by resident physicians to regularly

review the medical charges of these

patients.

5. To supervise the completion of medical

records by residents phy sicians.

Of note, at all times material hereto, Doctor Norris was the

medical director of Jackson North Maternity Center and, together

with Dr. Barker and others, an attending physician in the Public

Health Trust's resident training program at the facilit y.

15. Regarding Michael's birth, the proof demonstrates that

at or about 4:00 p.m., August 13, 1998, with the fetus at term,

Mrs. Ruiz presented to Jackson North Maternity Center, in labor.

Following an initial assessment, Mrs. Ruiz was examined by

Wayn e McCreath, a physician in the resident training program,

who noted the cervix at 2 centimeters dilation, effacement at

90 percent, and the fetus at - 1 station, and regular uterine

contractions every 3 minutes. Membranes were noted to have

ruptured sponta neously at 3:00 a.m. Dr. McCreath's impression

was intrauterine pregnancy, at 39 weeks gestation, in labor,

and he proposed to admit Mrs. Ruiz to labor and delivery.

Dr. McCreath's assessment and proposal to admit Mrs. Ruiz was

reviewed by Dr. Norris, t he attending physician at the time, and

approved.

16. Dr. McCreath continued to provide medical care for

Mrs. Ruiz, under the supervision of Dr. Norris, until the

7:00 p.m., shift change, when Dr. Barker assumed the duties of

attending (supervising) physi cian, and some time thereafter

George Butler, another physician in the resident training

program, was noted to be providing medical care. Ultimately, at

6:01 a.m., August 14, 1998, Michael was delivered by cesarean

section, due to arrest in descent and a nonreassuring fetal

heart rate pattern. The operating report names Dr. Barker as

the attending surgeon and Dr. Butler as a resident surgeon.

Notably, with regard to the notice issue, neither Doctor Norris

nor Doctor Barker provided NICA notice to Mrs. Ru iz at or

following her admission of August 13, 1998, and the only notice

she received was that provided by the hospital at pre -

registration.

Resolution of the notice issue, with regard

to the hospital

17. Petitioners do not dispute that the hospital prov ided

Mrs. Ruiz with a copy of the NICA brochure at pre - registration

or that she signed the form acknowledging receipt of the

brochure. Rather, they contend, first, that Mrs. Ruiz did not

receive notice because she never read the documents she signed

or th e NICA brochure, and that her failure to read the documents

or NICA brochure was reasonable or excusable given that, in

their opinion, the procedure the hospital employed to secure her

signature and deliver the brochure was not adequate to alert her

to the ir significance. Second, Petitioners contend that neither

the acknowledgment form nor the brochure was sufficient, for

reasons hereafter addressed, to satisfy the hospital's notice

obligation under the Plan.

18. To support their first contention, Petit ioners offered

the testimony of Mrs. Ruiz who, to support Petitioners'

contention that her failure to read the documents she signed and

the NICA brochure she received was reasonable, observed that the

service representative (Machele Lockhart Wadley) simply flipped

the bottom up of each page she wanted Mrs. Ruiz to sign, never

gave Mrs. Ruiz time to read before signing, never gave Mrs. Ruiz

the documents to read before signing or told her to read before

signing, and never told Mrs. Ruiz the documents were of any

legal significance. Moreover, as for the NICA brochure,

Mrs. Ruiz observed that, at the time, she was of the opinion it

was simply another baby advertisement, and of no significance.

19. Considering the proof, Petitioners' first contention,

and th e testimony of Mrs. Ruiz that was offered to support it,

must be rejected for a number of reasons. First, given the

routine nature of pre - registration and the passage of time since

it occurred, it is unlikely that Mrs. Ruiz would have any

specific recolle ction of the events that transpired at the time.

Moreover, given the limited number of forms Mrs. Ruiz signed

during the interview process, discussed supra , and the fact that

her husband also signed as guarantor or spouse, it is also

unlikely that the pro cess was hurried or that Mrs. Ruiz was

seriously deprived of an opportunity to read the forms or the

NICA brochure had she chosen to do so. Finally, and most

pertinent to the notice issue, Mrs. Ruiz acknowledged in her

testimony that, while she did not re ad the acknowledgment form,

she was specifically advised that by signing the form she was

agreeing that she received the NICA brochure. (PHT's Exhibit 1,

pages 26 and 27). Under such circumstances, and considering

that the brochure was also delivered wit h two other pamphlets of

legal significance (the Advance Directives brochure and the

Patient's Bill of Rights brochure), if Mrs. Ruiz failed to

accord the NICA brochure significance, her act of doing so was

not reasonable.

20. Petitioners' second contenti on, regarding the adequacy

of notice with regard to the hospital, was premised on their

view that, as worded, neither the acknowledgment form nor the

NICA brochure was adequate to satisfy the notice provisions of

the Plan. As for this contention, Petition ers first posit that,

since the NICA brochure stated only injuries that "have occurred

in the course of labor, delivery or resuscitation in the

immediate postdelivery period in a hospital " (emphasis added)

were covered, Mrs. Ruiz was not on notice that del ivery at

Jackson North Maternity Center was covered by the Plan because

Jackson North Maternity Center was not described as a hospital

in the acknowledgment form, the NICA brochure, the facility

signage, or otherwise. Petitioners also posit that, because

neither the acknowledgment form nor the NICA brochure states

that Jackson North Maternity Center has participating physicians

on its staff, Mrs. Ruiz was not on notice that delivery at

Jackson North Maternity Center was covered by the Plan.

21. Here, Pe titioners' second contention must also be

rejected. First, Petitioners have stipulated that Jackson North

Maternity Center is a hospital, as that terms is used in the

Plan, and there is no evidence of record that Mrs. Ruiz suffered

any confusion over Jack son North Maternity Center's status as a

hospital. Second, there is no requirement under the notice

provisions of Section 766.316, Florida Statutes, for the

hospital to advise patients that it has participating physicians

on staff. Rather, such is presum ed if notice is given, and the

obligation to disclose their participating status rests with the

physician.

Resolution of the notice issue, with regard to

the participating physicians

22. With regard to the participating physicians, it is

undisputed that Mrs. Ruiz was never given notice by Doctors

Norris and Barker that they were participating physicians in the

Plan, and that the only NICA notice she received was that

provided by the hospital at pre - registration, which failed to

identify any physician asso ciated with the hospital, or reveal

their status as participating physicians. 7 Nevertheless, it was

the position of Intervenors that the acknowledgment form signed

by Mrs. Ruiz at pre - registration, and delivery of the NICA

brochure, satisfied the notice p rovisions of the Plan for the

hospital, as well as the participating physicians.

Alternatively, the Intervenors were of the view that the

participating physicians were not required to give notice, since

Mrs. Ruiz presented to the hospital on August 13, 19 98, with an

"emergency medical condition," as defined by Section

395.002(a)(b), Florida Statutes, or the giving of notice was

"not practicable." § 766.316, Fla. Stat.

23. Given the proof, it must be resolved that Doctors

Norris and Barker failed to comp ly with the notice provisions of

the Plan. In so concluding, it is noticed that Intervenors'

contention that the giving of notice by the hospital also

satisfied the participating physicians' independent obligation

to give notice must be rejected as lackin g a rational basis in

fact or, stated otherwise, any compelling proof that a patient,

similarly situated as Mrs. Ruiz, would reasonably conclude, from

the hospital's notice, that notice was also given on behalf of

Doctors Norris and Barker. Notably, the a cknowledgment form

signed by Mrs. Ruiz at pre - registration did not reveal that it

was also given on behalf of any physician associated with the

hospital and did not reveal that any physician associated with

the hospital was a participating physician in the Plan. Under

such circumstances, the giving of notice by the hospital could

not satisfy the participating physicians' independent obligation

to provide notice. 8 With regard to the Intervenors' contention

that the giving of notice was not required or was not

practicable, it is noted that, while the Legislature clearly

expressed its intention in Section 766.316, Florida Statutes,

that notice was not required when a patient presented with an

"emergency medical condition," the Legislature did not absolve a

he alth care provider from the obligation to give notice when the

opportunity was previously available. Consequently, while

Doctors Norris and Barker were not required to give notice when

they assumed Mrs. Ruiz's care at the hospital, because there was

"evid ence of the onset and persistence of uterine contractions

or rupture of the membranes," they nevertheless failed to comply

with the notice provisions of the Plan because, although there

was a reasonable opportunity for them to do so, they failed to

give Mr s. Ruiz notice at pre - registration. 9 See Galen of

Florida, Inc. v. Braniff , 696 So. 2d 308 (Fla. 1997); Board of

Regents of the State of Florida v. Athey , 694 So. 2d 46 (Fla.

1st DCA 1997); Schur v. Florida Birth - Related Neurological

Injury Compensation A ssociation , 832 So. 2d 188 (Fla. 1st DCA

2002); Turner v. Hubrich , 656 So. 2d 970 (Fla. 5th DCA 1995).

CONCLUSIONS OF LAW

Jurisdiction

24. The Division of Administrative Hearings has

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

these pr oceedings. § 766.301, et seq. , Fla. Stat.

Compensability and award

25. 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 administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

t he 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 obstetrical services wer e

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 award may be sustained only if the

administrative law judge concludes that the "infant has

sustained a birth - related neurological injury a nd that

obstetrical services were delivered by a participating physician

at the birth." § 766.31(1), Fla. Stat.

26. "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

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

27. In this case, it has been established that the

physicians who provided obstetrical services at Michael's birth

were "participating physician[s]," and that Michael suffered a

"birth - related neurological injury." Consequently, Michael

qualifies for coverage under the Plan, and Petitioners are

entitled to an award of c ompensation. §§ 766.309 and 766.31,

Fla. Stat. Here, the parties have stipulated to such award, as

set forth in paragraph 6 of the Findings of Fact.

Notice

28. While the claim qualifies for coverage, Petitioners

have sought the opportunity to avoid a c laim of Plan immunity in

a civil action, by requesting a finding that the notice

provisions of the Plan were not satisfied. As the proponent of

the immunity claim, the burden rested on the health care

providers to demonstrate, more likely than not, that t he notice

provision 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 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. Depart ment 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.")

29. At all times material hereto, Section 766.316, Florida

Statutes (Supp. 1998), prescribed the notice provisions of the

Plan, as follows:

Each hospital with a participating physician

on its staff and each participating

physician, other than residents, assistant

residents, and interns deemed to b e

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 ac knowledging 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 h as an emergency

medical condition as defined in s.

[395.002(9)(b)] or when notice is not

practicable.

"Emergency medical condition" is defined by Section

395.002(9)(b), Florida Statutes (Supp. 1998), to mean:

(b) With respect to a pregnant woman:

1. Th at there is inadequate time to effect

safe transfer to another hospital prior to

delivery;

2. That a transfer may pose a threat to the

health and safety of the patient or fetus;

or

3. That there is evidence of the onset and

persistence of uterine cont ractions or

rupture of the membranes.

30. Under circumstances similar to those presented in this

case, the court in Board of Regents v. Athey , 694 So. 2d 46

(Fla. 1st DCA 1997), spoke to the independent obligation of the

participating physician and the h ospital to accord the patient

notice, as mandated by Section 766.316, Florida Statutes, as

follows:

Under the plan, a "participating physician"

is one who is "licensed in Florida to

practice medicine who practices obstetrics

or performs obstetrical servic es 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 NICA. Section 766.302(7),

Fla. Stat. (1989). Thus, if a hospital has

a "participating physician" on sta ff, to

avail itself of NICA exclusivity the

hospital is required to give pre - delivery

notice to its obstetrical patients. In

addition, except for residents, assistant

residents and interns who are exempted from

the notice requirement, a participating

phys ician is required to give notice to the

obstetrical patients to whom the physician

provides services. Under section 766.316,

therefore, notice on behalf of the hospital

will not by itself satisfy the notice

requirement imposed on the participating

physici an(s) involved in the delivery . . .

. [Conversely, it reasonably follows,

notice on behalf of the participating

physician will not by itself

satisfy the notice requirement imposed on

the hospital.]

Id. at 49. The court concluded that "health care prov iders who

have a reasonable opportunity to give notice and fail to give

pre - delivery notice under section 766.316, will lose their NICA

exclusivity . . . ." Id. at 50. Accord Schur v. Florida Birth -

Related Neurological Injury Compensation Association , 83 2 So. 2d

188 (Fla. 1st DCA 2002). Consequently, as noted in the Findings

of Fact, the hospital demonstrated that it complied with the

notice provisions of the Plan, but the participating physicians,

who had a reasonable opportunity to do so, did not.

CONC LUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Juanita Ruiz and Miguel Angel Ruiz, as parents and natural

guardians of Michael A. Ruiz, a minor, and Juanita Ruiz and

Miguel Ang el Ruiz, individually, be and the same is hereby

approved.

It is FURTHER ORDERED that the hospital complied with the

notice provisions of the Plan, but the participating physicians

did not.

It is FURTHER ORDERED that the following benefits are

awarded:

1. Petitioners, Juanita Ruiz and Miguel Ruiz , are awarded

$190.65 for expenses previously incurred. § 766.31(1)(a), Fla.

Stat. Such award shall be paid immediately, and all future

expenses shall be paid as incurred. § 766.31(2), Fla. Stat.

2. Petitioner s, Juanita Ruiz and Miguel Ruiz , are awarded

a lump sum of $100,000.00. § 766.31(1)(b), Fla. Stat.

3. Petitioners, Juanita Ruiz and Miguel Ruiz , are awarded

$10,580.33 for attorney's fees and other expenses incurred in

connection with the filing of the c laim. § 766.31(1)(c), Fla.

Stat.

It is FURTHER ORDERED that pursuant to Section 766.312,

Florida Statutes, jurisdiction is reserved to resolve any

disputes, should they arise, regarding the parties' compliance

with the terms of this Final Order.

DONE AN D ORDERED this 28th day of September, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

123 0 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 28th day of September, 2004.

ENDNOTES

1/ Petition ers' Exhibit 3 (the deposition of Paul Norris, M.D.)

was initially marked for identification, but was physically

withdrawn and is not among Petitioners' exhibits. However,

Dr. Norris' deposition is of record, having been marked and

received into evidence as University of Miami's Exhibit 1.

Petitioners' Exhibits 10 and 18 were marked for identification

but, given the objection of Intervenor University of Miami, not

received into evidence. Petitioners' Exhibit 20, the continued

deposition of Barry Materson , M.D., was taken post - hearing, on

June 28, 2004, and, there being no objection, received into

evidence.

2/ All citations are to Florida Statutes (1997) unless

otherwise indicated.

3/ Re - designated as Section 395.002(9)(b), from Section

395.002(8)(b), to conform to amendments by Chapter 98 - 89,

Section 23, Laws of Florida, and Chapter 98 - 171, Section 37,

Laws of Florida. See § 766.316, Fla. Stat. (Supp. 1998), note

2.

4/ The Application for Medicaid was a simple fill - in - the - blank

form that should hav e required no more than two minutes to

complete and sign. (Petitioners' Exhibit 6, page 28).

5/ Mrs. Ruiz was conversant and literate in Spanish, but no

other language.

6/ Translated, the form read, as follows:

I have received the brochure entitled 'Peace

of Mind' prepared by the Association of

Compensation for Neurological Injuries

Related to Birth of the State of Florida

(Florida Birth - Related Neurological Injury

Compensation Association).

(Transcript, pages 84 and 85, and PHT's Exhibit 1, pag es 65

and 66).

7/ The acknowledgment form signed by Mrs. Ruiz is actually

stamped on a Jackson Memorial Hospital form C - 255 (Progress

Record). (PHT's Exhibit 3). In the lower right hand corner of

the Progress Record appears a "Patient imprint," which i ncludes

Mrs. Ruiz's name, as well as the name of Dr. Norris. Notably,

the Patient imprint is not generated or applied to the patient's

medical records, until admission. (Petitioners' Exhibit 6,

pages 47 - 50). Consequently, the Patient imprint was not on the

document when it was signed by Mrs. Ruiz.

8/ In so concluding, the participating physicians' expectation

that the hospital would provide notice on their behalf,

generally before admission, has not been overlooked. (PHT's

Exhibit 2, pages 24 - 34). Ho wever, as heretofore noted, the

hospital's notice did not reveal that it was also given on

behalf of the physicians or that any physicians were

participating physicians in the Plan. Consequently, although

joint notice may have been the intention of the hos pital, and

the participating physicians, the notice provided was inadequate

to achieve that result.

9/ In so concluding, it is noted that all attending physicians

at the hospital were participating physicians in the Plan;

services at the hospital were li mited to maternity services, as

well as some outpatient gynecological services, but no prenatal

care was provided; and, typically, the first services a patient

received followed the onset of labor, when the patient presented

to the hospital for the birth o f her child. (PHT's Exhibit 2,

page 65, Petitioners' Exhibit 9, pages 6 and 15, Petitioners'

Exhibit 6, pages 12 and 20). Consequently, it was commonly

known that the only contact a patient had with the hospital

prior to the onset of labor, and the only opportunity the

hospital and the physicians it employed had to give notice prior

to the onset of labor, was at pre - registration

COPIES FURNISHED:

(By certified mail)

Charles H. Baumberger, Esquire

Rossman, Baumberger & Reboso, P.A.

44 West Flagler Stree t, Suite 2300

Miami, Florida 33130 - 1808

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6 Court

Plantation, Florida 33324

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308

Stephen A. Stieglitz, Esquire

Metro - Dade Center

111 Northwest First Street, Suite 2800

Miami, Florida 33128 - 1993

Steven E. Stark, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast Second Street

Miami, Florida 33131

Bel Barker, M.D.

Jackson North Maternity Center

14701 Northwest 27th Avenue

Opa Locka, Florida 33054

Jackson North Maternity Center

14701 Northwest 27th Avenue

Opa Locka, F lorida 33054

Ms. Charlene Willoughby

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 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administr ative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth - Related Neurological Injury

Compensation Association v. Carreras , 598 So. 2d 2 99 (Fla. 1st

DCA 1992). The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.