04-003173N Bethany Weeks, As Personal Representative Of The Estate Of David Weeks, A Minor, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, October 25, 2005.

Summary: The claim was compensable, an award was made, and it was resolved that the physician and hospital were exempt from the pre-delivery notice requirement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETHANY WEEKS, as P ersonal )

R epresentative of the E state of )

DAVID WEEKS, a minor, deceased , )

)

Petitioner, )

)

vs. ) Case No. 04 - 3173N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

an d )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM, INC., d/b/a SOUTH )

SEMINOLE HOSPITAL ; CHRISTOPHER )

QUINSEY, M.D.; DAVID GOSS, )

M.D.; JOHN V. PARKER, M.D. ; and )

ADVANCED WOMEN'S HEALTH )

SPECIALISTS, )

)

Intervenor s . )

)

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 August 29, 2005, by video

te leconference, with sites in Tallahassee and Orlando , Florida.

APPEARANCES

For Petitioner: David J. White, Esquire

Searcy, Denney, Scarola, Barnhart

& Shipley, P.A.

2139 Palm Beach La kes Boulevard

West Palm Beach, Florida 33401

For Respondent: Wendell B. Hayes, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 328 01

For Intervenor Orlando Regional Healthcare System, Inc.,

d/b/a South Seminole Hospital:

Henry W. Jewett, II, Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahue & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32801

For Intervenors Christopher Quinsey, M.D., and Advanced

Women's Health Specialists:

Ruth C. Osborne, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802 - 0753

For Intervenors David Goss, M.D., John V. Parker, M.D., and

Advanced Women's Health Specialists:

James J. Evangelista, Esquire

Fowler, White, Boggs & Banker

501 East Kennedy Boulevard, Suite 1600

Tampa, Florida 33601 - 1438

STATEMENT OF THE ISSUES

1. Whether David Weeks, a deceased minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

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 a mount owing for past expenses.

3. Whether the hospital and the participating physician

gave the patient notice, as contemplated by Section 766.316,

Florida Statutes, o r 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 not practicable.

PRELIMINARY STATEMENT

On September 3, 2004, Bethany Weeks, as Personal

Representative of the Estate of David Weeks, a deceased minor ,

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

Hearings (DOAH) for compensation under the Plan, and for a

determination of whether the healthcare providers complied with

the notice provisions of the Plan.

DOAH served the Florida Birth - Rela ted Neurological Injury

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

September 8, 2004 , and on October 13, 2004, NICA responded to

the claim and gave notice that it was of the view that the claim

was compensable, and requested that a hearing be scheduled "to

determine the compensability of the instant claim, notice, and

all other matters . . . deem[ed] necessary." Such a hearing was

ultimately held on August 29, 2005. In the interim, Orlando

Regional Healthcare System, Inc., d/b/a South Sem inole Hospital ;

Christopher Quinsey, M.D. ; David Goss, M.D. ; John V. Parker,

M.D. ; and Advanced Women's Health Specialists, were granted

leave to intervene.

At hearing, Petitioner presented the testimony of

Bethany Weeks and Diana Dietrick, and Petitioner' s Exhibits 1 - 7

and Respondent's Exhibit 1 were received into evidence. The

physicians and Advanced Women's Health Specialists presented the

testimony of Bonnie Mladec 1 and Christopher Quinsey, M.D. , and

their exhibits (marked Doctors' Exhibits) 1 - 10 were received

into evidence. Orlando Regional Healthcare System, Inc. (ORHS)

presented the testimony of Cheryl Ingram, R.N., and

Bernadette Charles, R.N., and ORHS' Exhibits 1 - 8 were received

into evidence. 2

The transcript of the hearing was filed October 3, 2 005,

and the parties were accorded 10 days from that date to file

written argument or proposed orders. The parties elected to

file written argument or proposed orders, and they have been

duly - considered.

FINDINGS OF FACT

Findings related to compensabilit y

1. Bethany Weeks and Michael Weeks are the natural parents

of David Weeks (David), a deceased minor, and Bethany Weeks is

the Personal Representative of her deceased son's estate. David

was born a live infant at 11:00 p.m., November 3, 2002, at South

Seminole Hospital, a hospital located in Longwood, Florida, and,

following the termination of resuscitation efforts, was

pronounced dead at 11:30 p.m. David's birth weight was 2,925

grams.

2. The physician providing obstetrical services at David's

birth was Christopher Quinsey, M.D., who, at all times material

hereto, was a "participating physician" in the Florida Birth -

Related Neurological Injury Compensation Plan, as defined by

Section 766.302(7), Florida Statutes.

3. Pertinent to this case, coverage i s 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 peri od

in a hospital, which renders the infant permanently and

substantially mentally and physically impaired. " § 766.302(2),

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

4. Here, the proof is compelling that David suffered an

injury to the brain caused by oxygen deprivation, secondary to

placental abruption , in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in the

hospital , that led inevitably to his death short ly after birth.

Consequently, the record d emonstrated that David suffered a

"birth - related neurological injury" and, since obstetrical

services were provided by a " participating physician " at birth,

the claim is compensable. §§ 766.309(1) and 766.31(1), Fla.

Stat.

Findings related to the award

5 . Where, as here, 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 awarded.

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

766.31(1), Florida S tatutes, provides for an award of the

following items:

(a) Actual expenses for medically necessary

and reasonable medical and hospital,

habilitative and training, family

residential or custodial care, professional

residential, and custodial care and servi ce,

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 received, or is entitled to

receive, under the laws of any s tate or the

Federal Government, except to the extent

such exclusion may be prohibited by federal

law.

2. Expenses for items or services that

the infant has received, or is contractually

entitled to receive, from any prepaid health

plan, health maintenan ce organization, or

other private insuring entity.

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 s uch

exclusion may be prohibited by federal law.

4. Expenses for which the infant has

received reimbursement, or for which the

infant is contractually entitled to receive

reimbursement, pursuant to the provisions of

any health or sickness insurance polic y or

other private insurance program.

* * *

(b)1. Periodic payments of an award to

the parents or legal guardians of the infant

found to have sustained a birth - related

neurological injury, which award shall not

exceed $100,000. However, at the di scretion

of t he administrative law judge, such award

may be made in a lump sum.

2. Death benefit for the infant in an

amount of $10,000.

(c) Reasonable expenses incurred in

connection with the filing of a claim under

ss. 766.301 - 766.316, including re asonable

attorney's fees, which shall be subject to

the approval and award of the administrative

law judge. In determining an award for

attorney's fees, the administrative law

judge shall consider the following factors:

1. The time and labor required, th e novelty

and difficulty of the questions involved,

and the skill requisite to perform the legal

services properly.

2. The fee customarily charged in the

locality for similar legal services.

3. The time limitations imposed by the

claimant or the circumst ances.

4. The nature and length of the

professional relationship with the claimant.

5. The experience, reputation, and ability

of the lawyer or lawyers performing

services.

6. The contingency or certain ty of a fee.

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

should Petitioner elect to accept benefits under the Plan,

Bethany Weeks and Michael Weeks, as the parents of David, be

awarded $100,000.00, to be paid in lump sum. The parties have

further agreed that Petitioner Bethany Weeks, as Perso nal

Representative of the Estate of David Weeks, be awarded a death

benefit of $10,000.00 , and an award of $4,115.00 for attorney's

fees ($1,575.00 for Petitioner's counsel David J. White, Jr.,

and $2,040.00 for Petitioner's co - counsel Patrick C. Massa) an d

other expenses ($500.00) incurred i n connection with the filing

of the claim. Finally, the parties have agreed that no monies

are owing for past expenses. Such agreement is reasonable, and

is approved.

The notice provisions of the Plan

7. While the c laim qualifies for coverage under the Plan,

Petitioner would prefer to pursue her civil remedies, and has

averred, and requested a finding that, the hospital and the

participating physician who delivered obstetrical services at

David's birth (Dr. Quinsey), failed to comply with the notice

provisions of the Plan. See Galen of Florida, Inc. v. Braniff ,

696 So. 2d 308, 309 (Fla. 1997)("[A]s a condition precedent to

invoking the Florida Birth - Related Neurological Injury

Compensation Plan as a patient's exclusi ve remedy, health care

providers must, when practicable, give their obstetrical

patients notice of their participation in the plan a reasonable

time prior to delivery.") . Consequently, it is necessary to

resolve whether the notice provisions of the Plan w ere

satisfied. 3

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

Statutes, prescribed the notice requirements of the Plan, as

follows:

Each hospital with a participating physician

on its staff and each participating

physician, other than resident s, assistant

residents, and interns deemed to be

participating physicians under s.

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

Related Neurological Injury Compensation

Plan shall provide notice to the obstetrical

patients as to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shall

include a clear and concise explanation of a

patient's rights and limitations under the

plan. The hospital or the participating

physici an 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 ne ed 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 res pect to a pregnant woman:

1. That 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 contractions[ 4 ] or

rupture of the membranes.

10. The 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, o r

performed; feasible." Webster's New Twentieth Century

Dictionary, Second Edition (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.") .

The NICA brochure

1 1 . Responding to Section 766.316, 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 a nd limitations under

the Plan, and distributed the brochure to participating

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

their obstetrical patients. (Petitioner's Exhibit 7.)

Findings related to Mrs. Weeks' prenatal care and notice

1 2 . Initially, Mrs. Weeks received prenatal care at the

Seminole County Health Department, where she was first seen on

June 18, 2002, and then transferred to Advanced Women's Health

Specialists (AWHS) in September 2002, at 29 3/7 weeks '

gestation. Notably, Mrs. Weeks had extensive workups at the

Seminole County Health Department, and she delivered a copy of

her medical records (which she received from the health

department on September 13, 2002) to AWHS, most likely at her

first visit, Monday, September 16, 2002. 5 According to

Mrs. Weeks' patient chart, AWHS received the following documents

from the health department: a flow sheet; progress notes;

history; physical; PAP; blood work/all labs; Chlamydia,

gonorrhea, hepatitis results ; RPR results; tri - screen r esults;

HIV results; sonogram result; one hour GTT results; and urine

culture results. (Doctors' Exhibit 10.)

1 3 . Pertinent to the notice issue, the physicians (who

were members of the AWHS group practice) and AWHS presented

evidence (through the testimo ny of Bonnie Mladec, the clinical

coordinator for AWHS) that when Mrs. Weeks pres ented to AWHS for

her initial visit, AWHS had a routine pursuant to which all new

patients, regardless of the sta g e of their pregnancy, and

regardless of wh e ther they started their prenatal care with

another provider, were given a copy of the NICA brochure by the

medical assistant who interviewed them, together with eight

other documents. (Doctors' Exhibits 1 - 9.) Four of the

documents were informational, and did not require a signature:

the NICA brochure; a one - page list of safe medications to use

during pregnancy; a one - page document titled "Why Breastfeed?";

and a one - page document explaining the Healthy Start Program.

The five documents that required a signature were a No tice to

Our Obstetrics Patients (to acknowledge receipt of the NICA

brochure) 6 ; consent to HIV Antibody Test form (to accept or

decline the test); a Triple Test Screening for Birth Defects

form (to accept a decline the test); a Cystic Fibrosis Carrier

Test ing form (to accept or decline the test); and a Healthy

Start Prenatal Risk Screen form (to accept or decline

screening). Notably, Mrs. Weeks' chart does not include, as it

should if AWHS's routine was followed, a copy of a Notice to Our

Obstetric Patient s form signed by Mrs. Weeks, or a copy of any

of the other form s patients were routinely requested to sign.

(Doctors' Exhibit 10 ; Transcript, pages 21 - 25.) Nevertheless,

the physicians and AWHS contend there is no reason to conclude

AWHS's routine was no t followed because each t est was performed ,

and AWHS would not have performed the t ests absent Mrs. Weeks'

written consent.

1 4 . In contrast to the proof offered regarding AWHS's

routine, Mrs. Weeks testified that no such routine was followed

when she pr esented for her initial visit. 7 According to

Mrs. Weeks, no on e discussed the Plan with her, she did not

receive a NICA brochure, did not sign a receipt for a brochure,

and did not sign any other document that would have been part of

the routine.

1 5 . H ere, the evidence failed to support the conclusion

that, more likely than not, AWHS's routine was followed. In so

concluding, it is noted that, Mrs. Weeks' chart contains no

document signed by Mrs. Weeks that would have been part of

AWHS's routine, and co ntrary to the contention of the physicians

and AWHS, and contrary to the testimony they offered to support

such contention , the charting of HIV Antibody test results and a

Triple Test Screening does not support the conclusion that

AWHS's routine was follow ed. Rather, it demonstrates that AWHS

merely accepted the results the health department had obtained.

As for the Health y Start Prenatal Risk Screen, Mrs. Weeks' chart

contains no evidence that AWHS presente d her with that form to

sign. Rather , since the health department's prenatal record

reveal s that Healthy Start Screening had been completed, given

AWHS's acceptance of other department of health testing, and

given no further explanation, it is likely AWHS did not pursue

the matter. Consequently, as to these forms, the record offers

no compelling proof that AWHS followed its routine. Rather, it

offers proof to the contrary.

1 6 . As for the Cystic Fibrosis Carrier Test, the record

does reveal that test was done at AWHS, and Mrs. Weeks' chart

(Antepart um Record, page D, under Comments/Additional Labs)

contains an entry ("[C]ystic F[ibrosis]=accepted [,] drawn on

9/16/02") that supports the conclusion she consented to the test

at her initial visit. However, given the proof, or lack

thereof, these findin gs are not compelling proof that

Mrs. Weeks' consent to the Cystic Fibrosis C arrier Test was part

of an invariable routine that was followed at a patient's

initial visit. Therefore, the proof fails to support the

conclusion that AWHS's routine was followe d on Mrs. Weeks'

initial visit, or that Mrs. Weeks received a NICA brochure or

signed a receipt for a NICA brochure on her initial visit .

Findings related to David's birth and notice

1 7 . At or about 8:15 p.m., November 3, 2002, Mrs. Weeks,

with an estima ted delivery date of November 27, 2002, and the

fetus at 36 5/7 weeks ' gestation, presented to Labor and

Delivery Triage, at South Seminole Hospital, in labor (with

evidence of the onset and persistence of uterine contractions).

At the time, Mrs. Weeks' c hief complaint was noted as

"[contractions ] most of today, becoming more uncomfortable since

[6:00 p.m.]." The notes of the triage nurse (Bernadette

Charles, R.N.) include the following narrative:

Client received from ER in wheelchair with

above complaint s. Crying and complain of

labor pains. Denies rupture of membranes or

bright red vag bleeding. Client's restless

and uncooperative. Encouraged to relax

between contractions . . . . Elevated

B[lood] P[ressure] noted. Client complained

of headaches, DT Rs 3[ very br i s k ], no

clonus, edema 2 to 3 . . . [P]ain scale [8 -

9/10].

(Petitioner's Exhibit 1, pages 21 and 22 ; Petitioners Exhibit 6,

page 0533.)

1 8 . Initial assessment in triage noted uterine

contractions of moderate intensity, every 2 to 3 minut es, with a

duration of 40 to 50 seconds. Blood pressure was elevated

(164/112), and vaginal examination revealed the cervix at 2

centimeters dilation, effacement at 70 percent, and the fetus

between station - 1 and - 2.

1 9 . At 8:45 p.m., Ms. Charles spoke with Lesann Dwyer, a

certified nurse midwife (CNM) at AWHS, and at 8:55 p.m., she

spoke with Dr. Quinsey, and received orders to admit Mrs. Weeks

to labor and delivery. Thereafter , at 9:05 p.m., Mrs. Weeks was

moved by wheelchair from triage to labor and delivery room 403,

where she was admitted at 9:10 p.m. According to Ms. Charles'

admission note:

client admitted to LR 403 in early labor

. . . P[ain]/S[cale] 6/10 - Client crying -

uncooperative. Requesting something for

pain . . . .

20 . According t o the medical records, by 9:15 p.m., the

time at which the activities were documented, Mrs. Weeks was in

her bed, position ed on her right side, and a n external fetal

monitor and blood pressure monitor were attached. At the time,

assessment revealed an ele vated blood pressure (173/103); a

fetal heart rate baseline of 120 to 130 beats per minute, with

decreased long - term variability; the cervix at 2 centimeters

dilation, effacement at 70 percent, and the fetus at station - 1;

moderate uterine contractions, at a frequency of 1 to 2 minutes,

with a duration of 30 to 40 seconds; and a pain severity level

of 7 - 8/10. Also noted, an IV had been started, labs drawn, and

Mrs. Weeks had been asked to sign a number of documents,

including an acknowledgment of receipt o f NICA notice. 8 The

acknowledgement form provided, as follows:

FLORIDA BIRTH - RELATED NEUROLOGICAL INJURY

COMPENSATION PLAN ACKNOWLEDGMENT OF PATIENT

RECEIPT OF NOTICE

I have been advised that Orlando Regional

Healthcare System, Inc. and its resident

phys icians are participating members in the

Florida Birth - Related Neurological Injury

Compensation Plan. This Plan provides that

certain limited compensation is available in

the event certain birth - related neurological

injuries may occur during labor, deliver y or

post - delivery resuscitation, irrespective of

fault. For specifics on the Plan, I

understand I can contact the Florida Birth -

Related Neurological Injury Compensation

Association (NICA), Post Office Box 14567,

Tallahassee, Florida 32317 - 4567; (904) 488 -

8191/ 1 (800) 398 - 2129. I further

acknowledge I have received from Orlando

Regional Healthcare System, Inc., a copy of

the form brochure regarding the Plan. The

form brochure is prepared and furnished by

the Florida Birth - Related Neurological

Injury C ompensation Association.

Dated this _____ day of ____________, 2002.

_____________________

Signature

_____________________

Name of Patient

Social Sec urity No. _____________

Witness: ____________________

Date: ____________________

Mrs. Weeks concedes she signed the acknowledgment form.

However, she denies she received the NICA brochure .

2 1 . Subsequently, at 9:20 p.m., Mrs. Weeks was given

Stadal (for pain) and magnesium sulfate ( for pregnancy - induced

high blood pressure), and at 9:30 p.m., the records note a fetal

heart rate baseline of 120 to 130 beats per minute, with

decreased long - term variability, and contractions of moderate

intensity, at a frequency of 1 to 2 minutes, with a duration of

30 to 40 seconds. Thereafter, there is a gap in documentation

until 10:00 p.m., when fetal heart rate is noted in the 90 to

100 beat per minute range, Mrs. Weeks is given oxygen and a

position change, and D r. Quinsey is called and updated. Shortly

thereafter, at 10:05 p.m., anesthesiology was alerted to a

possible cesarean section, and at 10:20 p.m., Ms. Charles

attempted to place a fetal scalp electrode and Mrs. Weeks

membranes ruptured.

2 2 . B y 10:25 p. m., Dr. Quinsey had arrived at the

hospital, and was noted at bedside. At the time, Dr. Quinsey

observed Mrs. Weeks was having constant abdominal pain, with a

tense abdomen, consistent with placental abruption, and an

emergent cesarean section was indicat ed . Under the

circumstances, it was Dr. Quinsey's opinion, which was credible

and uncontroverted, that inadequate time remained to safe l y

transfer Mrs. Weeks to another hospital prior to delivery, and

any transfer may have posed a threat to the health and safety of

Mrs. Weeks or her fetus.

2 3 . Given Mrs. Weeks' presentation, a stat cesarean

section was called, and Mrs. Weeks was moved to the operating

room, where she was admitted at 10:40 p.m. According to the

records, surgery started at 10:57 p.m., and David was delivered

at 11:00 p.m., with an Apgar score of 1 and 0, at one and five

minutes respectively. 9

Resolution of the notice issue with

regard to the participating physician

2 4 . With regard to Dr. Quinsey, the participating

physician who provided o bstetrical services at David's birth,

the proof demonstrates that, although it was practicable to do

so during her prenatal care at AWHS, Mrs. Weeks was not given

notice . 10 However, since Mrs. Weeks had an "emergency medical

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

Statutes, when Dr. Quinsey provided obstetrical services to her

on November 3, 2002, he was exempt from the pre - delivery notice

requirement, notwithstanding it may have been practicable for

him to have provided Mrs. Weeks notice during her prenatal care

at AWHS. § 766.316, Fla. Stat.; Orlando Regional Healthcare

System, Inc. v. Alexander , 909 So. 2d 582, 586 (Fla. 5th DCA

2005)("We hold that the statute contains two distinct

exemptions, each of which independently provides an exc eption to

the pre - delivery notice requirement. As such, [the hospital]

was excused from providing notice to [the patient] when she

arrived at the [hospital] under emergency medical conditions,

and her previous visits to the hospital during her pregnancy d id

not negate this clear statutory exemption.") . Consequently,

with regard to the participating physician, the notice

provisions of the Plan were satisfied.

Resolution of the notice issue

with regard to the hospital

2 5 . With regard to the hospital, it w as the hospital 's

policy to provide the patient with a copy of the NICA brochure,

together with an acknowledgment form for the patient to sign

acknowledging receipt of the brochure, following admission to

labor and delivery. Here, there is no dispute that Mrs. Weeks

signed the acknowledgment form at or about 9:15 p.m., following

her admission to labor and delivery. 11 What is disputed, is

whether Mrs. Weeks was given a NICA brochure. Petitioner also

contends that the brochure, if given, was not provided a

reasonable time prior to delivery to allow for the exercise of

an informed choice o f providers. As to this contention,

Petitioner notes that the hospital had an opportunity to provide

meaningful notice during two prior admissions, as well as during

Mrs. Weeks' preregistration, but failed to do so, and that "[a]t

the time [] the NICA brochure was allegedly given to

Bethany Weeks [on November 3, 2002] she was expected to read it

while she was having contractions, in pain , receiving lactate

ringers, and whil e labs were being drawn," a less than opportune

time . (Petitioner's Proposal Final Order, paragraph 26.)

Stated otherwise, Petitioner contends that, if she was given the

brochure on November 3, 2002, it was not efficacious notice.

2 6 . H owever, the hospi tal, like the participating

physician who delivered obstetrical services at David's birth,

was exempt from the pre - delivery notice requirement, since when

Mrs. Weeks presented to South Seminole Hospital at or about 8:15

a.m., November 3, 2002, she had an " emergen cy medical condition"

("evidence of the onset and persistence of uterine

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

Statutes, and notwithstanding it may have been practicable for

the hospital to have provided Mrs. Weeks' notice dur ing her

previous visits to the hospital. § 766.316, Fla. Stat.; Orlando

Regional Healthcare Systems, Inc. v. Alexander , supra .

Consequently, it is unnecessary to address whether Mrs. Weeks

was given a NICA brochure or whether, if given, the notice was

e fficacious.

CONCLUSIONS OF LAW

Jurisdiction

2 7 . 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

2 8 . In resolving wheth er 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

sat isfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and 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 i n 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.

§ 76 6.309(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." § 76 6.31(1), Fla. Stat.

2 9 . "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

for a single gestation or, in the case of a

mu ltiple gestation, a live infant weighing

at least 2,000 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 infa nt 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.

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

physician who provided obstetrical services at David's birth was

a "participating physician," and that David suffered a "birth -

related neurological injury." Consequently, David qualifies for

coverage under the Plan, and Petitioner is 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

3 1 . While the claim qualifies for coverage, Petitioner has

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 by the hospital or the

participating physician . As the proponent of the immunity

claim, the burden rested on the healthcare provid ers to

demonstrate, more likely than not, that the notice provision of

the Plan were satisfied. See Tabb v. Florida Birth - Related

Neurological Injury Compensation Association , 880 So. 2d 1253,

1260 (Fla. 1st DCA 2004)("The ALJ . . . properly found that

'[ a]s the proponent of the issue, the burden rested on the

health care provider to demonstrate, more likely than not, that

the notice provisions of the Plan were satisfied.'"); Galen of

Florida, Inc. v. Braniff , 696 So. 2d 308, 311 (Fla. 1997)("[T]he

asserti on 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 the ir obstetrical patients notice of their

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

3 2 . Here, for reasons appearing in the Findings of Fact,

the proof demonstrated that Mrs. Weeks had an "em ergency medical

condition" on presentation to, and during her November 3, 2002,

admission at South Seminole Hospital. Consequently, the

hospital and the participating physician who provided

obstetrical services at David's birth were exempt from the pre -

delivery notice requirement of the Plan. Orl ando Regional

Healthcare Systems, Inc. v. Alexander , supra .

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Bethany Weeks, as Personal Representative of the Estate of

David Weeks, a deceased minor, be and the same is hereby

approved.

It is FURTHER ORDERED that the hospital and the

participating physician complied with the notice provisions of

the Plan.

It is FURTHER ORDERED that the following benefits are

awarded:

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

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

Stat.

2. Bethany Weeks and Michael Weeks, as the parents of

David, are awarded $100,000.00, to be paid in lump sum.

§ 766.31(1)((b)1, Fla. Sta t.

3. Bethany Weeks, as the Personal Representative of the

Estate of David Weeks, a deceased minor, is awarded a death

benefit of $10,000.00. § 766.31(1)(b)2, Fla. Stat.

4. Bethany Weeks, as the Personal Representative of the

Estate of David Weeks, a de ceased minor, is awarded $4,115.00

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 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 AND ORDERED this 25th day of October, 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 25th day of October, 2005.

ENDNOTES

1/ Bonnie Mladec was incorrectly identified in the transcript

as Bonnie Mallott.

2 / At hearing, Petitioner's objections to portions of ORHS'

Exhibit 1 (the deposition of Bethany Week s) and ORHS' Exhibit 3

(the deposition of Diana Dietrick) were taken under advisement.

Upon consideration, Petitioner's objections are overruled.

3 / O'Leary v. Florida Birth - Related Neurological Injury

Compensation Association , 757 So. 2d 624, 627 (Fl a. 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 Bir th - Related

Neurological Injury Compensation Association , 880 So. 2d 1253

(Fla. 1st DCA 2004). See also Gugelmin v. Division of

Administrative Hearings , 815 So. 2d 764 (Fla. 4th DCA 2002);

Behan v. Florida Birth - Related Neurological Compensation

Associatio n , 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 , 87 1 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 As sociation , 893

So. 2d 636 (Fla. 2d DCA 2005).

4 / The first stage of "labor" is commonly understood to

"begin[] with the onset of regular uterine contractions."

Dorland's Illustrated Medical Dictionary, Twenty - eighth Edition

(1994). "Regular," is common ly understood to mean "[o]ccurring

at fixed intervals, periodic." The American Heritage Dictionary

of the English Language, New College Edition (1979). Similarly,

"persistent" is commonly understood to mean "[i]nsistently

repetitive or continuous." Id.

5 / In resolving that the records were most likely delivered at

her first visit, it is noted that the AWHS Antepartum Record of

September 16, 2002, under initial physical exam, adopts

information from the " H[ealth] D[epartment] P[hysical] E[xam]

Form," a nd includes entries for various lab work and testing

that was done by the Seminole County Health Department.

6 / The Notice to Our Obstetric Patients provided:

NOTICE TO OUR OBSTETRIC PATIENTS

I have been furnished information by

Advanced Women's Health Specialists prepared

by the Florida Birth Related Neurological

Injury Compensation Association, and have

been advised that Edward S. Guindi, M.D.,

Jon F. Sweet, M.D., David L. Goss, M.D.,

John V. Parker, M.D., Christopher K.

Quinsey, M.D., Carolyn M. Stau b, MN, CNM,

Lesann Dwyer, MSN, CNM, C a 'Sha Archer -

Knight, MS, CNM are participating

physicians/midwife in that program, wherein

certain limited compensation is available in

the event certain neurological injury may

occur during labor, delivery or

resuscita tion. For specifics on the

program, I understand I can contact the

Florida Birth Related Neurological Injury

Compensation Association (NICA), 1435 East

Piedmont Drive, Suite 101, Tallahassee,

Florida 32312, (904) 488 - 8191. I further

acknowledge that I h ave received a copy of

the brochure by NICA.

Dated this _____ day of _____________, 20__.

Signature __________________________________

Name of Patient ____________________________

Social Security Number _ ____________________

Attest:

Nurse or Physici an _________________________

Date: ______________________________________

(Doctors' Exhibit 2 .)

7 / There was no suggestion made or proof offered that

Mrs. Weeks was provided notice at any other time during her

prenatal care at AWHS, although it was cle arly practicable to do

so, that the physicians associated with AWHS (including Doctors

Quinsey, Goss, and Parker) were participants in the Plan.

8 / The hospital's policy was to provide NICA notice only when

the patient was admitted for delivery. Theref ore, notice was

not routinely given when patients presented to triage or when

they were admitted for antepartum care. Consequently,

Mrs. Weeks was not given notice when she was admitted

October 15, 2002, to October 19, 2002, and October 25, 2002, to

Octob er 27, 2002, for antepartum care, or in October 2002, when

she preregistered at South Seminole Hospital, although it was

clearly practicable for the hospital to have done so.

9 / The Apgar scores assigned to David are a numerical

expression of the conditi on of a newborn infant and reflect the

sum points gained on assessment of heart rate, respiratory

effort, reflex irritability, muscle tone, and color, with each

category being assigned a score ranging from the lowest score of

0 through a maximum score of 2 . As noted, at one minute,

David's Apgar score totaled 1, with heart rate being graded at

1, and respiratory effort, reflex irritability, muscle tone, and

color being graded at 0. By f ive minutes, David's heart rate

was likewise graded at 0.

1 0 / Dr. Qu insey argued that since he did not ever see

Mrs. Weeks prior to her admission of November 3, 2002, or

provide her prenatal care at AWHS, it was not practicable for

him to have provided notice. Given the proof, including the

evidence presented regarding AW HS's routine practice, such

contention is rejected as unpersuasive.

1 1 / Diana Dietrick, Mrs. Weeks' mother, was present at the

time, and signed as a witness. Mrs. Dietrick also printed

Mrs. Weeks' name on the " N ame of Patient" line and entered

Mrs. Week s' Social Security Number. Mrs. Charles also signed as

a witness and dated the form "11 - 3 - 02" and entered the time

"2115," on the Date line.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 5308)

Wendell B. Hayes, Esquire

George W. Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Fl orida 32801

(Certified Mail No. 7099 3400 0010 4399 5537)

Ruth C. Osborne, Esquire

Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802 - 0753

(Certified Mail No. 7099 3400 0010 4399 5520)

James J. Evang elista, Esquire

Fowler, White, Boggs & Banker

501 East Kennedy Boulevard, Suite 1600

Tampa, Florida 33601 - 1438

(Certified Mail No. 7099 3400 0010 4399 5513)

David J. White, Esquire

Searcy, Denney, Scarola, Barnhart &

Shipley, P.A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

(Certified Mail No. 7099 3400 0010 4399 5506)

Henry W. Jewett, II, Esquire

Jennings L. Hurt, III, Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahue & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Flori da 32801

(Certified Mail No. 7099 3400 0010 4399 5490)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4399 5483)

NOTICE OF RIGHT TO JUDICIAL 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 Proced ure. 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.