04-001533N Jennifer Castillo And Peter Borowiak, On Behalf Of And As Parents And Natural Guardians Of Lievens Borowiak, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, March 22, 2005.

Summary: The claim is compensable and an award was made contingent upon acceptance of benefits. It was also found that the hospital complied with the notice provisions of the plan, but the physicians did not.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER CASTILLO AND PETER )

BOROWIAK, on behalf of and as )

parents and natural guardians )

of LIEVENS BOROWIAK, a minor, )

)

Petitioners, )

)

vs. ) Case No. 04 - 1533N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION AS SOCIATION, )

)

Respondent, )

)

and )

)

UNIVERSITY OF MIAMI and PUBLIC )

HEALTH TRUST, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administr ative

Hearings, by Administrative Law Judge William J. Kendrick, held

a final hearing in the above - styled case on February 2, 2005, in

Miami, Florida.

APPEARANCES

For Petitioners: Andrew L. Ellenberg, Esquire

Janice Gallagher, Esquire

Sally Gross, Esquire

Needle, Gallagher, Areces

& Ellenberg, P.A.

Banco Santander Building, Suite 900

1401 Brickell Avenue

Miami, Florida 33131 - 3504

James D. Robinson, Esquire

Robinson and Pecaro, P.A.

633 Southeast Third Avenue, Suite 303

Fort Lauderdale, Florida 333 01

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

For Intervenor University of Miami:

James D. DeChurch, Esquire

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast Second Street

Miami, Florida 33131

For Intervenor Public Health Trust:

Ronald J. Bernstein, Esquire

Stephen P. Clark Center

111 Northwest First Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUES

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 the hospital and the participating physicians

gave the patient notice, as contemplated by Section 766.16,

Florida Statutes, or whether the failure to give notice was

excused because the patient had an "emergency medical

condition," as defined by Section 395.002(9)(b), Florida

Statutes, or the giving of notice was otherwise not practicable.

PRELIMINARY STATEMENT

On April 23, 2004, Jennifer Castillo and Peter Borowiak, as

parents and natural guardians of Lievens Borowiak (Lievens), a

minor, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) to resolve whether their son

suffered an injury covered by the Florida Birth - Related

Neurological Injury C ompensation Plan (Plan), and whether the

healthcare providers complied with the notice provisions of the

Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

April 27, 2004, and on July 26, 2004, following a number of

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

Compensability and Request for Evidentiary Hearing on

Compensability, wherein it agreed the claim was compensable. In

the interim, the University of Miami an d the Public Health Trust

were granted leave to intervene. Thereafter, by Notice of

Hearing, dated August 24, 2004, a hearing was scheduled for

February 2 and 3, 2005, to resolve the issues heretofore noted.

At hearing, Intervenors called Phyllisan Goodwi n, LPN, and

Charmin Campbell, LPN, as witnesses, and Intervenors' Exhibits

1 - 12 1 ; Petitioners' Exhibits 1 - 4, 5A, 5B, and 6 - 16; and

Respondent's Exhibits 1 and 2, were received into evidence.

Post - hearing, Intervenors' Exhibit 13 was offered and received

i nto evidence, without objection. No other witnesses were

called, and no further exhibits were offered.

The transcript of the hearing was filed February 23, 2005,

and the parties were initially accorded 10 days from that date

to file proposed orders. Howe ver, at Petitioners' request the

opportunity to file proposals was extended to March 14, 2005.

The Petitioners and the University of Miami elected to file such

proposals, and the Public Health Trust belatedly adopted the

proposal filed by the University o f Miami. The parties'

proposals have been duly considered.

FINDINGS OF FACT

Findings related to compensability

1. Jennifer Castillo and Peter Borowiak, are the natural

parents and guardians of Lievens Borowiak, a minor. Lievens was

born a live infant on April 18, 2001, at Jackson Memorial

Hospital, a hospital owned and operated by the Public Health

Trust in Miami, Dade County, Florida, and his birth weight

exceeded 2,500 grams.

2. Obstetrical services were provided during the course of

Lievens' birth by Salih Y. Yasin, M.D., Mary Jo O'Sullivan,

M.D., Armando Hernandez, M.D., and Victor H. Gonzales - Quintero,

M.D., who, at all times material hereto, were "participating

physicians" in the Florida Birth - Related Neurological Injury

Compensation Plan, as de fined by Section 766.302(7), Florida

Statutes. More particularly, Doctors Yasin, and O'Sullivan,

were members of the faculty at the University of Miami, School

of Medicine, and also held contracts with the Public Health

Trust to provide, inter alia , super vision for physicians in the

Trust's resident physician training program. These physicians,

referred to as attending physicians, were "participating

physician[s]" in the Plan, since the assessment required for

participation had been paid on their behalf b y the University of

Miami. Doctors Hernandez and Gonzales - Quintero were

"participating physician[s]," since they were residents in the

Trust's postgraduate residence program in obstetrics and

gynecology, and were exempt from payment of the assessment.

§§ 766.302(7) and 766.313(4) and (5), Fla. Stat.

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 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, Fla. Stat.

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

otherwise compelling, that Lievens suffered a "birth - related

neurological injury." Consequently, since obstetrical services

were provided by a "participating physician" at birth, the claim

is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat.

Findings related to an award

5. When it has been resolved that a claim is compensable,

the administrative law judge is required to make a determination

of how much compensation should be award ed. § 766.31(1), Fla.

Stat. Pertinent to this case, Section 766.31(1), Florida

Statutes (2000), 2 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.

However, such expenses shall not include:

1. Expenses for items or services that

the infant has recei ved, or is entitled to

receive, under the laws of any state or the

Federal Government, except to the extent

such exclusion may be prohibited by federal

law.

* * *

3. Expenses for which the infant has

received reimbursement, or for which the

infant is entitled to receive reimbursement,

under the laws of any state or the Federal

Government, except to the extent such

exclusion may be prohibited by federal law.

* * *

(b) Periodic payments of an award to the

parents or legal guardians of the infa nt

found to have sustained a birth - 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. 766.301 - 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 el ect to accept benefits under the Plan,

Jennifer Castillo and Peter Borowiak, as the parents of Lievens,

be awarded $100,000.00, to be paid in lump sum, and $8,321.44

for attorney's fees ($8,000.00) and costs ($321.44) incurred in

connection with the filing of the claim. § 766.31(1)(b) and

(c), Fla. Stat. The parties have further agreed that no monies

are owing for past expenses, and that Respondent pay future

expenses as incurred. § 766.31(1)(a) and (2), Fla. Stat.

The notice provisions of the Plan

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

Petitioners have responded to the healthcare providers' claim of

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

healthcare providers failed to comply with the notice provisions

of the Pl an. 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. Florida Birth - Related

Neurological Injury Compensation Assoc iation , 880 So. 2d 1253

(Fla. 1st DCA 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); Florida Birth - Related Neurological

Injury Compensation Association v. Ferguson , 869 So . 2d 686

(Fla. 2d DCA 2004)(same); and, Bayfront Medical Center, Inc. v.

Florida Birth - Related Neurological Injury Compensation

Association , 30 Fla.L.Weekly D452a (Fla. 2d DCA February 16,

2005)(same).

8. At all times material hereto, Section 766.316, F lorida

Statutes, 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 be

participating physici ans 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 provide d on

forms furnished by the association and shall

include a clear and concise explanation of a

patient's rights and limitations under the

plan. The hospital or the participating

physician may elect to have the patient sign

a form acknowledging receipt of the notice

form. Signature of the patient

acknowledging receipt of the notice form

raises a rebuttable presumption that the

notice requirements of this section have

been met. Notice need not be given to a

patient when the patient has an emergency

medical condition as defined in s.

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

practicable.

9. Section 395.002(9)(b), Florida Statutes, defines

"emergency medical condition" to mean:

(b) With respect to a pregnant woman:

1. That there is inadequate time to effect

sa fe 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 contractions or

rupture of the membranes.

Th e Plan does not define "practicable." However, "practicable"

is a commonly understood word that, as defined by Webster's

dictionary, means "capable of being done, effected, or

performed; feasible." Webster's N ew Twentieth Century

Dictionary, Second Editi on (1979). See Seagrave v. State ,

802 So. 2d 281, 286 (Fla. 2001)("When necessary, the plain and

ordinary meaning of words [in a statute] can be ascertained by

reference to a dictionary.")

10. Responding to Section 766.316, Florida Statutes, NICA

develop ed a brochure, titled "Peace of Mind for an Unexpected

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

explanation of a patient's rights and limitations under the

Plan, and distributed the brochure to participating physicians

and hospitals so they could furnish a copy of the brochure to

their obstetrical patients. (Intervenors' Exhibit 1)

11. Here, given the provision of Section 766.316, Florida

Statutes, the hospital and attending physicians (Doctors Yasin

and O'Sullivan), provided they had a reasonable opportunity to

do so, were required to provide pre - delivery notice. 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 a reasonable

time prior to delivery."); Board of Regents v. Athey , 694 So. 2d

46, 50 (Fla. 1st DCA 1997)("[H]ealth care providers who have a

reasonable opportunity to give notice and fail to give pre -

delivery notice under section 766.316, will lose their NICA

exclusivity . . . .). Doctors Hernandez and Gonzales - Quintero,

as residents, deemed to be a participating phy sician under

Section 766.314(4)(c), Florida Statutes, were not required to

provide notice.

Findings related to notice

12. At or about 9:45 a.m., Wednesday, April 11, 2001,

Ms. Castillo, aged 23, with an estimated delivery date of

April 26, 2001, and th e fetus at 38 weeks' gestation, presented

to Jackson Memorial Hospital (JMH) on the advice of her primary

care physician, as a high - risk pregnancy, secondary to cardiac

dysfunction. Notably, Ms. Castillo had a history of congenital

heart disease, with car diac surgery at aged 10 for transposition

of the great vessels, and a recent diagnosis of marked pulmonary

hypertension and severe aortic insufficiency. Under the

circumstances, Ms. Castillo's primary care physician concluded

delivery at a community hospi tal was inadvisable, and he

referred her to JMH for evaluation, as to the timing of, as well

as the management of, her delivery.

13. On presentation, Ms. Castillo was initially assessed

in OB Triage. At the time, existing protocol required that,

follow ing initial assessment, "[t]he HUS/Nurse places the

patient on the triage log (in the computer at JMH) and gives the

'Peace of Mind' (OB) and 'Advance Directives' brochures in their

respective languages." (Petitioners' Exhibit 11) Here, the

proof demonst rates that Phyllisan Goodwin, an LPN employed by

the hospital, initially assessed Ms. Castillo in OB Triage, and

completed the Triage Treatment Record, which documented that,

consistent with existing protocol, she provided Ms. Castillo

with a copy of the A dvanced Directives pamphlet and the Peace of

Mind (NICA) brochure. (Intervenors' Exhibits 3 and 10) At or

about the same time, Nurse Goodwin gave Ms. Castillo a General

Consent for Treatment form. (Intervenors' Exhibit 2) That

form, insofar as Interven ors deem it pertinent to the notice

issue, included the following provisions:

1. I, the undersigned patient or Jennifer

Castillo (name of authorized representative

acting on behalf of patient) consent to

undergo all necessary tests, medication,

treatments and other procedures in the

course of the study, diagnosis and treatment

of my illness(es) by the medial staff and

other agents and/or employees of the Public

Health Trust/Jackson Memorial Hospital

(PHT/JMH) and the University of Miami School

of Medicine, including medical students.

2. I have been told the name of the

physician who has primary responsibility for

my care, as well as the names, professional

status and professional relationships of

other individuals who will be involved in my

care. It has been explained to me that in a

large teaching hospital environment like the

Public Health Trust/Jackson Memorial

Hospital, there may be additional or other

physicians and staff involved in my care as

well.

The consent was signed by Ms. Castillo, and witne ssed by Nurse

Goodwin, at 11:32 a.m., April 11, 2001.

14. Following triage, Ms. Castillo was admitted to the

antepartum floor for further evaluation and management. There,

Ms. Castillo was evaluated by Charmin Campbell, LPN, who

completed the OB Nursing Admission Assessment, which included

the observation that Ms. Castillo had previously received the

Advanced Directives and the Peace of Mind brochures.

(Intervenors' Exhibit 4) Ms. Castillo's subsequent hospital

course was summarized in Dr. Yasin's Disc harge Summary, as

follows:

The Patient was admitted for a cardiology

workup in preparation for a controlled

delivery. She was seen by both anesthesia

and cardiology. Cardiology recommended an

echocardiogram to evaluate heart function

which was done and t he patient was found to

have sever pulmonary hypertension with

moderate right ventricular dysfunction and

dilatation in addition to a moderate aortic

insufficiency. The patient also had an

official ultrasound which showed I UGR

[intrauterine growth retarda tion] . . . .

After long consultation with both anesthesia

and cardiology the plan was made on

April 13th to induce the patient in a

controlled setting on [Monday] April 16th.

It was felt that the patient would benefit

from a central line and that she wo uld

deliver on the labor floor, because with the

IUGR should the patient need a cesarean

section it could potentially be stat, and a

better outcome would be ensured by

delivering the patient on the labor floor as

opposed to the cardiac care unit. The

pati ent while on antepartum had daily NST'S

[ nonstress tests] . S he was followed closely

both by cardiology and anesthesia. On April

16th the patient went to the labor floor for

an induction. The induction continued and

the patient delivered on April 18th. I t was

a baby boy with Apgar scores of 2 4 5. The

infant weighed 2,641 grams. The delivery

was vacuum assisted secondary to poor

maternal effort, and it was noted that there

was a tight nuchal cord times one. Both

anesthesia and cardiology were present a t

the delivery. Postpartum the patient went

to the cardiac care unit for close

monitoring. The following day she was sent

to the normal postpartum floor. The patient

was doing incredibly well. She was

asymptomatic. No shortness of breath. She

had no chest pain. She was ambulating

without difficulty. She was discharged home

on postpartum day number two.

(Petitioners' Exhibit 5A, page 004.) See also Petitioners'

Exhibit 5A, pages 024 - 027, Dr. Yasin's progress note of

April 13, 2001, and Petitioners' Exhibit 5A, pages 093 - 095,

Dr. Yasin's Vaginal Delivery Record.

15. Notably, during the 5 days that preceded induction of

labor, Ms. Castillo was continuously monitored by hospital

staff; underwent numerous evaluations, by cardiology, radiology,

and anes thesiology, among others; and was called upon to sign a

number of forms, in addition to the General Consent for

Treatment form discussed supra , including: an Advance

Directives Checklist, on April 11, 2001; a Consent to Operations

or Procedures for a ches t x - ray, at 5:00 p.m., April 11, 2001; a

Release of Liability for Loss of Personal Property, at

12:45 a.m., April 12, 2001; a Consent Form for sterilization, on

April 13, 2001; a Consent to Operations or Procedures for the

delivery of her child, at 6:30 a. m., April 16, 2001; and, a

Consent to Operation or Procedures for a chest x - ray, at

10:50 a.m., April 16, 2001. (Petitioners' Exhibit 5B)

Moreover, the record reveals that during that 5 - day period,

Doctors Yasin and O'Sullivan, the attending physicians,

provided obstetrical services to Ms. Castillo on numerous

occasions; on April 16, 2001, Dr. Yasin supervised

Ms. Castillo's induction; and on April 18, 2001, Dr. Yasin

delivered Lievens. Consequently, the hospital and the attending

physicians had numerou s opportunities to provide notice to

Ms. Castillo.

16. It is also notable that, on presentation to JMH at

9:45 a.m., April 11, 2001, Ms. Castillo was not in labor, and

insofar as the record reveals she was not thereafter in labor

until sometime after 11:5 5 a.m., April 16, 2001, when labor was

induced, with Petocin. More particularly, there was no

"evidence of the onset and persistence of uterine contractions[ 3 ]

or rupture of the membranes[ 4 ]" until after her labor was

induced. Moreover, there was no proo f that, upon admission or

until her labor was induced, "there was inadequate time to

effect safe transfer to another hospital prior to delivery" or

"[t]hat a transfer may pose a threat to the health and safety of

the patient or fetus." Consequently, until some time after

11:55 a.m., April 16, 2001, some 5 days after she presented to

the hospital, Ms. Castillo did not have an "emergency medical

condition," as defined by Section 395.002(9)(b), Florida

Statutes, that would have excused the giving of notice.

Moreover, there was no proof to support a conclusion that the

giving of notice was not practicable.

Resolution of the notice issue, with

regard to the hospital

17. With regard to the hospital and the notice issue, the

more persuasive evidence supports th e conclusion that, more

likely than not, Nurse Goodwin, consistent with established

practice, provided Ms. Castillo a copy of the NICA brochure in

OB Triage. In so concluding, it is noted that the giving of

notice in OB Triage was an established protocol (Petitioners'

Exhibit 11); the Triage Treatment Record prepared by Nurse

Goodwin documented that the NICA brochure was provided

(Intervenors' Exhibit 3); except for the entry regarding the

NICA brochure, Ms. Castillo acknowledged the information Nurse

Goo dwin entered in the Triage Treatment Record was accurate

(Intervenors' Exhibit 7, pages 52 - 53); it is unlikely, given

such consistency, Nurse Goodwin would not have also provided

Ms. Castillo with the NICA brochure; and Ms. Castillo's

possession of the NIC A brochure, following OB Triage, was

confirmed by Nurse Campbell on the Nursing Assessment Record,

when Ms. Castillo was admitted to the antepartum floor

(Intervenors' Exhibit 4). Consequently, the proof compels the

conclusion that the hospital complied w ith the notice provisions

of the Plan.

Resolution of the notice issue, with regard

to the attending - participating physicians

18. With regard to the attending physicians and the notice

issue, it is undisputed that the attending physicians never

provided n otice, and relied on the hospital to provide notice on

their behalf. 5 Therefore, to demonstrate compliance, Intervenors

posit that, "under the circumstances of this case," the notice

the hospital provided was sufficient to satisfy both its notice

obligati on, and that of the attending physicians. (Intervenors'

Amended Joint Pre - Hearing Stipulation, paragraph B) The

"circumstances" were stated to be, as follows:

10. Upon presenting at the OB Triage,

Ms. Castillo was provided an English -

language NICA Peac e of Mind brochure by

Phyllisan Goodwin, LPN, who electronically

notated Ms. Castillo's chart on the triage

treatment record to that effect.

11. At or about the same time that she

received the NICA brochure, Ms. Castillo

signed an English - language Genera l Consent

for Treatment form, wherein Ms. Castillo

consented to undergo all necessary tests,

medication, treatments and other procedures

in the course of the study, diagnosis and

treatment by the medial staff and other

agents and/or employees of the Public Health

Trust/Jackson Memorial Hospital and the

University of Miami School of Medicine.

(Intervenors' Amended Joint Pre - Hearing Stipulation, paragraphs

E10 and 11). Given such "circumstances," Intervenors contend

that a patient, similarly situated as M s. Castillo, would

reasonably conclude from the delivery of the NICA brochure and

the General Consent for Treatment form, that the brochure was

given on behalf of the hospital and the attending physicians.

(Hospital Proposed Final Order, paragraph 18) Ho wever,

Intervenors do not suggest, and the proof does not support a

conclusion that, the notice also disclosed, or compelled a

conclusion that, the attending physicians were "participating

physician[s]" in the Plan.

19. Here, contrary to Intervenors' cont ention, it must be

resolved that the notice provided by the hospital did not

satisfy the attending physicians' obligation. In so concluding,

it is noted that the General Consent for Treatment form is

clearly unrelated to NICA notice, and the duality of pu rpose

Intervenors contend the brochure was intended to serve, as

notice for the hospital and the participating physicians, was

not communicated to the patient. Moreover, a reading of the

brochure would not, absent speculation, lead one to believe the

broc hure was also given on behalf of the physicians, and the

brochure did not inform the patient that any physician was a

"participating physician" in the Plan. Indeed, the brochure

simply stated:

You are eligible for this protection if your

doctor is a parti cipating physician in the

Association. Membership 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. (Emphasis added)

Consequently, alt hough joint notice may have been the intention

of the hospital, and the expectation of the attending

physicians, the notice provided was inadequate to achieve that

purpose. 6

CONCLUSIONS OF LAW

Jurisdiction

21. 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 and award

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

the administrative law judge must make the following

deter mination 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 co rd 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 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

resuscitation in the immediate postdelivery

period in a hospital; or by a certified

nurse midwife in a teach ing 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 conclude s 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.

23. "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 po stdelivery 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 .

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

physicians who provided obstetrical services at Lievens' birth

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

"birth - related neurological injury." Consequently, Lievens

qualifies for c overage under the Plan, and Petitioners are

entitled to an award of compensation. §§ 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

25. While the claim qualifi es for coverage, Petitioners

have sought the opportunity to avoid a claim 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 t he health care

providers to demonstrate, more likely than not, that the notice

provisions of the Plan were satisfied. Tabb v. Florida Birth -

Related Neurological Injury Compensation Association , 880 So. 2d

1253, 1260 (Fla. 1st DCA 2004). See also 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. Department of

Health and Rehabilitative Services , 348 So. 2d 349, 3 50 (Fla.

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

the party asserting the affirmative issue before an

administrative tribunal.")

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

Statutes, prescribed the notice provisions o f 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 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

i nclude a clear and concise explanation of a

patient's rights and limitations under the

plan. The hospital or the participating

physician may elect to have the patient sign

a form acknowledging receipt of the notice

form. Signature of the patient

acknowle dging 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.

27. 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 hospital 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 services either f ull

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 staff, to

avai l 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

physician is re quired 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

physician(s) invol ved in the delivery.

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

have a reasonable opportunity to give notice and fail to give

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

exclusivity regardless of whether the circ umstances precluded

the patient making an effective choice of provider at the time

notice was provided." Id. at 50. Accord Schur v. Florida

Birth - Related Neurological Injury Compensation Association , 832

So. 2d 188, 192 (Fla. 1st DCA 2002)("This court in Athey

established a bright - line rule requiring pre - delivery notice

from each health care provider in order to preserve his or her

NICA plan immunity.") Here, for reasons noted in the Findings

of Fact, the hospital demonstrated that it complied with the

n otice provisions of the Plan, but the attending physicians, who

had a reasonable opportunity to do so, did not.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Jennifer Cast illo and Peter Borowiak, as parents and natural

guardians of Lievens Borowiak, a minor, 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

who were r equired to give notice (Doctors Yasin and O'Sullivan)

did not.

It is FURTHER ORDERED that the following benefits are

awarded:

1. Since no monies are owing for past expenses, no award

is made for expenses previously incurred. § 766.31(1)(a), Fla.

Stat. A s for future expenses, Respondent shall pay all future

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

2. Petitioners, Jennifer Castillo and Peter Borowiak, are

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

3. Petitioners, Jennifer Castil lo and Peter Borowiak, are

awarded $8,321.44 for attorney's fees and other expenses

incurred in connection with the filing of the claim.

§ 766.31(1)(c), Fla. Stat.

It is FURTHER ORDERED that the Stipulation and Joint

Petition Between Petitioners and Resp ondent with R espect to the

C laim A rising O ut of Florida Birth - Related Neurological Injury

Pursuant to Chapter 766, Florida Statutes (the Stipulation),

filed January 27, 2005, is approved and the parties are directed

to comply with the provisions thereof.

I t 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 and the Stipulation filed

January 27, 2005.

D ONE AND ORDERED this 22nd day of March, 2005, 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 22nd day of March, 2005.

ENDNOTES

1/ With regard to Intervenors' Exhibit 7, the deposition of

Jennifer Castillo, Petitioners reserved certain objections, and

were directed to designate post - hearing, by page and line

number, the questions and answers to which they had objection.

(Transcript, pages 134 and 135) On March 14, 2005, Peti tioners

filed their objections to the following questions and answers:

page 24, lines 8 - 25; page 25, lines 1 - 25; page 65, lines 12 - 25;

page 66, lines 1 - 25; page 67, lines 1 - 4; page 72, lines 14 - 25;

and page 73, lines 1 - 5. Upon review, it is resolved that such

inquiry impermissibly invites conjecture. Drackett Products,

Co. v. Blue , 152 So. 2d 463 (Fla. 1963). As importantly, given

the objective standard established by the court in Athey , such

line of inquiry is not relevant. See Braniff v. Galen of

Flo rida, Inc. , 694 So. 2d 46, 50 (Fla. 1st DCA 1997), approved ,

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

(The giving of notice is a condition precedent to the health

care provider invoking the Plan as the patient's exclusive

remedy. "In short, we reject the notion that a NICA health care

provider can ignore the notice requirement and then assert NICA

exclusivity to defeat a civil action."); Board of Regents v.

Athey , 694 So. 2d 46, 50 (Fla. 1st DCA 1997), ("We believe the

use of a bright - line rule . . . will be most in keeping with the

legislative intent of the notice requirement in section 766.16.

We hold that health care providers who have a reasonable

opportunity to give notice and fail to give pre - delivery notice

under section 766.31 6, will lose their NICA exclusivity

regardless of whether the circumstances precluded the patient

making an effective choice of provider at the time notice was

provided . . . . [ S tated otherwise, h]aving failed to take

advantage of a reasonable opportunity to provide pre - delivery

notice, a health care provider will not be heard to complain

that notice, if given, would have been ineffective.") Accord

Schur v. Florida Birth - Related Neurological Injury Compensation

Association , 832 So. 2d 188, 192 (Fla. 1st D CA 2002)("This court

in Athey establish a bright - line rule requiring pre - delivery

notice from each health care provider in order to preserve his

or her NICA plan immunity.") Consequently, Petitioners'

objections are sustained.

2/ Subsequent amendments to paragraph (b) of subsection (1) of

Section 766.31, Florida Statutes, are not applicable to this

proceeding. Ch. 2001 - 277, § 150, Laws of Fla.; Ch. 2003 - 416,

Laws of Fla.

3/ The first stage of "labor" is commonly understood to begin

"with the onset o f regular uterine contractions " Dorland's

Illustrated Medical Dictionary, Twenty - eight Edition (1994).

4/ Ms. Castillo's membranes were artificially ruptured at

12:51 p.m., April 17, 2001. (Petitioners' Exhibit 5A, page 153)

5/ According to the proo f, all University of Miami

obstetricians were participating physicians in the Plan, and

whether they gave notice of their participation depended on

whether they were functioning as a private practitioner, when

the patient would be seen at a University of M iami Medical Group

office, or as an attending physician at Jackson Memorial

Hospital. When functioning as a private physician, the patient

was always provided a copy of the NICA brochure on her initial

visit, was advised the physicians were participating physicians

in the Plan, and signed a form acknowledging receipt of the

brochure. As an attending physician at Jackson Memorial

Hospital, the physicians never gave notice, and relied on the

hospital to give notice on their behalf. Usually, it was

expected notice would be given on the patient's first prenatal

visit to a trust facility or upon admission to the hospital.

(Intervenors' Exhibits 8, 9, and 10)

6/ In their Proposed Final Order, at paragraph 20, Intervenors

contend, alternately, that "even if t he Petitioners' contention

that the participating physicians failed to satisfy the notice

requirements was correct, such failure should not preclude NICA

exclusivity under the circumstances." The predicate for their

contention was stated, as follows:

Th e purpose of the notice requirement is "to

give an obstetrical patient an opportunity

to make an informed choice between using a

health care provider participating in the

NICA Plan or using a provider who is not a

participant and thereby preserving her civ il

remedies." Galen of Florida v. Braniff , 696

So. 2d 308, 309 - 10 (Fla. 1997); Schur v.

Florida Birth - Related Neurological , 832 So.

2d 188, 192 (Fla. 1st DCA 2002); Turner v.

Hubrich , 656 So. 2d 970, 971 (Fla. 5th DCA

1995). Ms. Castillo, however, testif ied

several times under oath that she would have

accepted care and treatment from her

physicians regardless of whether they were

participants in the NICA Plan . . . .

[Consequently, Intervenors conclude] the

purpose of the notice requirements was

fulfille d.

Intervenors' alternative contention is rejected. See Endnote 1,

and cases cited therein.

COPIES FURNISHED:

(By certified mail)

Andrew L. Ellenberg, Esquire

Janice Gallagher, Esquire

Sally Gross, Esquire

Needle, Gallagher, Areces & Ellenberg, P.A.

Banco Santander Building, Suite 900

1401 Brickell Avenue

Miami, Florida 33131 - 3504

James D. Robinson, Esquire

Robinson and Pecaro, P.A.

633 Southeast Third Avenue, Suite 303

Fort Lauderdale, Florida 33301

David W. Black, Esquire

Frank, Weinberg & Bla ck, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

James D. DeChurch, Esquire

Marc J. Schleier, Esquire

Fowler, White, Burnett, P.A.

Bank of America Tower, 17th Floor

100 Southeast Second Street

Miami, Florida 33131

Ronald J. Bernstein, Esqu ire

Stephen P. Clark Center

111 Northwest First Street, Suite 2810

Miami, Florida 33128

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tal lahassee, Florida 32308 - 4567

Victor H. Gonzalez - Quintero, M.D.

University of Miami Hospital and Clinics

1475 Northwest 12th Avenue

Miami, Florida 33136

Yolangel Hernandez - Suarez, M.D.

University of Miami Hospital and Clinics

1475 Northwest 12th Avenue

Miami, Florida 33136

Mary Josephine O'Sullivan, M.D.

University of Miami Hospital and Clinics

1475 Northwest 12th Avenue

Miami, Florida 33136

Salih Y. Yasin, M.D.

University of Miami Hospital and Clinics

1475 Northwest 12th Avenue

Miami, Florida 33136

Jackson Memorial Hospital

1611 Northwest 12th Avenue

Miami, Florida 33136

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDI CIAL REVIEW

A party who is adversely affected by this F inal O rder 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 Administrative 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 299 (Fla. 1st

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

rendition of the order to be reviewed.