04-003652N Maribenny Dianderas And Arturo Dianderas, Individually, And As Parents And Natural Guardians For Isabelle Dianderas, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 10, 2008.

Summary: Final Order Approving Association`s acceptance of the claim for compensation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIBENNY DIANDERAS AND ARTURO )

DIANDERAS, individually, and as )

parents and natural guardians )

for ISABELLE DIANDERAS, a )

minor, )

)

Petitioner s , )

)

vs. ) Case No. 04 - 3652N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENS ATION ASSOCIATION , )

)

Respondent, )

)

and )

)

ADVENTIST HEALTH )

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

FLORIDA HOSPITAL ; LOCH HAVEN )

OB/GYN GROUP ; and NATASHA M. )

KNIGHT, M.D., )

)

Intervenor s . )

)

FINAL ORDER ON COMPENSABIL ITY AND NOTICE

Pursuant to notice, the Division of Administrative

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

a hearing in the above - styled case on December 13 and 14, 2005,

in Orlando, Florida.

APPEARANCES

For Petitioners: Scott McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

For Respondent: Stan ley L. Martin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

For Intervenors Adventist Health System/Sunbelt, Inc.,

d/b/a Florida Hospital; Loc h Haven OB/GYN Group; and Natasha M.

Knight, M.D.:

John W. Bocchino, Esquire

Bobo, Ciotoli, Bocchino & Newman, P.A.

315 East Robinson Street, Suite 510

Orlando, F lorida 32801 - 1983

STATEMENT OF THE ISSUES

1. Whether Isabelle Dianderas, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

2. If so, whether the hospital and the participating

physician gave the patient notice, as contemplated by Section

766.316, Florida Statutes, or whether notice was not required

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 pr acticable.

PRELIMINARY STATEMENT

On October 8, 2004, Maribenny Dianderas and

Arturo Dianderas, individually, and as parents and natural

guardians of Isabelle Dianderas (Isabelle), a minor, filed a

petition with the Division of Administrative Hearings (DOAH ) to

resolve whether Isabelle qualified for compensation under the

Plan and, if so, whether the healthcare providers complied with

the notice provisions of the Plan. More particularly, with

regard to notice, the petition alleged:

5. Petitioners allege th at they did not

receive pre - delivery notice from Natasha M.

Knight, M.D. or the hospital about the NICA

Plan. Additionally or alternatively,

Petitioners allege that any such notice that

the hospital or Dr. Knight may allege they

gave the Petitioners was i nadequate as a

matter of law because it failed to include a

"clear and concise explanation of a

patient's rights and limitations under the

plan" as is required by Section 766.316,

Florida Statutes.

DOAH served the Florida Birth - Related Neurological Inju ry

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

October 8, 2004, and on January 14, 2005, following a number of

extensions of time within which to do so, NICA responded to the

petition and gave notice that it was of the view that the clai m

was compensable, and requested that an order be entered "finding

that Petitioners' claim is compensable and enter an award of

benefits, and for such further relief as . . . [the

administrative law judge] deems just and appropriate."

Initially, a hearing was scheduled for June 28, 2005, to

address all issues related to compensability, notice, and award.

However, at the parties' request, the hearing was continued, and

ultimately held on December 13 and 14, 2005, and at Petitioners'

request, the proceeding was bifurcated to address compensability

and notice first, and to address an award, if any, in a separate

proceeding. § 766.309(4), Fla. Stat. In the interim, Adventist

Health System/Sunbelt, Inc., d/b/a Florida Hospital; Loch Haven

OB/GYN Group; and Nat asha M. Knight, M.D., were granted leave to

intervene.

At hearing, Petitioners offered the testimony of

Maribenny Dianderas and Arturo Dianderas, and proffered the

testimony of Ronald Gilbert; Respondent offered the testimony of

Michael Duchowny, M.D., and Donald Willis, M.D. ; and Intervenors

offered the testimony of Sally Ackley, Beverly Bailey,

Iris Miranda (by publication of her deposition testimony),

Natasha Knight, M.D., Cynthia Hall, R.N., and Kathleen Ohland.

Joint Exhibits 1 - 6, Petitioners' Exhibit s 1 and 2, and

Intervenors' Exhibits 1A (pages 1 and 2), 1B (pages 1 and 2),

and 2 - 6 were received into evidence. Intervenors' Exhibits 1A

(page 3) and 1B (page 3) were marked for identification only.

The transcript of the hearing was filed March 1, 2006, and

the parties were initially accorded 10 days from that date to

file proposed orders. However, at Petitioners' request , and

with Respondent's and Intervenors' agreement, the time for

filing was extended to April 10, 2006. Respondent and

Intervenors el ected to file such proposals, and they have been

duly - considered.

FINDINGS OF FACT

Findings related to compensability

1. Maribenny Dianderas and Arturo Dianderas are the

natural parents and guardians of Isabelle Dianderas, a minor.

Isabelle was born a live infant on October 8, 2002, at Florida

Hospital, a hospital located in Orlando, Florida, and her birth

weight exceeded 2,500 grams.

2. The physician providing obstetrical services at

Isabelle's birth was Natasha M. Knight, M.D., who, at all times

mate rial 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 is afforded by the

Plan for infants who suffer a "bir th - 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 permanent ly 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, and uncontroverted, that

Isabelle suffered an injury to the brain caused by oxygen

depriv ation in the course of labor, delivery, or resuscitation

in the immediate postdelivery period in the hospital that

rendered her permanently and substantially mentally and

physically impaired. (Joint Exhibits 1 - 4; Transcript, pages

125 - 145). Consequently, the record demonstrated that Isabelle

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.

The notice issue

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

Petitioners would prefer to pursue their civil remedies, and

avoid a claim of Plan immunity by the healthcare providers in a

civil action. Therefore, Petitioners have averred, and

requested a fin ding that, the hospital and the participating

physician who delivered obstetrical services at Isabelle's

birth, 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 conditi on 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 t ime prior to delivery.") Consequently,

it is necessary to resolve whether the notice provision s of the

Plan were satisfied. 1

The notice provisions of the Plan

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

Statutes, prescribed the notice req uirements 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 physicians under s.

766.314(4)(c), under the Fl orida 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 acknowledging receipt of the notice

form. Signature of the patie nt

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.

7. 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

safe transfer to another hospital prio r 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[ 2 ] or

rupture of the membranes.

8. The Plan does not define "pract icable." 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 New Twentieth Century

Dictionary, Second Edition (1979). See Seagrave v. S tate , 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

9. Responding to Section 766.316, Florida Statutes, NICA

developed a brochu re (as the "form" prescribed by the Plan),

titled "Peace of Mind for an Unexpected Problem" (the NICA

brochure), which contained an explanation of a patient's rights

and limitations under the Plan, and distributed the brochure to

participating physicians a nd hospitals so they could furnish a

copy of it to their obstetrical patients. (Joint Exhibit 5).

Pertinent to this case, the NICA brochure applicable to

Mrs. Dianderas' prenatal care and Isabelle's birth provided:

The birth of a baby is an exciti ng and

happy time. You have every reason to expect

that the birth will be normal and that both

mother and child will go home healthy and

happy.

Unfortunately, despite the skill and

dedication of doctors and hospitals,

complications during birth some times occur.

Perhaps the worst complication is one which

results in damage to the newborn's nervous

system - called a "neurological injury."

Such an injury may be catastrophic,

physically, financially and emotionally.

In an effort to deal with this serious

problem, the Florida Legislature, in 1988,

passed a law which created a Plan that

offers an alternative to lengthy malpractice

litigation processes brought about when a

child suffers a qualifying neurological

injury at birth. The law created the

Florida Birth - Related Neurological Injury

Compensation Association (NICA).

EXCLUSIVE REMEDY

The law provides that awards under the

Plan are exclusive. This means that if an

injury is covered by the Plan, the child and

its family are not entitled to compensation

through malpractice lawsuits.

CRITERIA AND COVERAGE

Birth - related neurological injuries

have been defined as an injury to the spinal

cord or brain of a live - born infant weighing

at least 2500 grams at birth. In the case

of multiple ge station, the live birth weight

is 2000 grams for each infant. The injury

must have been caused by oxygen deprivation

or mechanical injury, which occurred in the

course of labor, delivery or resuscitation

in the immediate post delivery period in a

hospital . Only hospital births are covered.

The injury must have rendered the

infant permanently and substantially

mentally and physically impaired. The

legislation does not apply to genetic or

congenital abnormalities. Only injuries to

infants delivered by participating

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

Florida Statutes, are covered by the Plan.

COMPENSATION

Compensation may be provided for the

following:

Actual expenses for necessary and

reasonable care, services, drugs, equipment,

facil ities and travel, excluding expenses

that can be compensated by state or federal

government or by private insurers.

In addition, an award, not to exceed

$100,000 to the infant's parents or

guardians .

Funeral expenses are authorized up to

$1,500.

Reasonable expenses for filing the claim,

including attorney's fees.

NICA is one of only two (2) such

programs in the nation, and is devoted to

managing a fund that provides compensation

to parents whose child may suffer a

qualifying birth - related n eurological

injury. The Plan takes the "No - Fault "

approach for all parties involved. This

means that no costly litigation is required

and the parents of a child qualifying under

the law who file a claim with the Division

of Administrative Hearings may ha ve all

actual expenses for medical and hospital

care paid by the Plan.

You are eligible for this protection if

your doctor is a participating physician in

t he NICA Plan. If your doctor is a

participating physician, that means that

your doctor has pur chased this benefit for

you in the event that your child should

suffer a birth - related neurological injury,

which qualifies under the law. If your

health care provider has provided you with a

copy of this informational form, your health

care provide r is p lacing you on notice that

one or more physician(s) at your health care

provider participates in the NICA Plan.

(Joint Exhibit 5).

10. Here, Petitioners contend the brochure prepared by

NICA was insufficient to satisfy the notice provision of the

Plan (w hich requires that the form "include a clear and concise

explanation of a patient's rights and limitations under the

plan"), because it failed to include an explanation of the civil

remedies a patient would forego if she chose a participating

provider. (T ranscript, pages 11 - 13). However, neither Galen of

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

authority relied upon by Petitioners, nor the notice provision

of the Plan, place such an obligation on NICA in the formulation

of the brochure.

1 1. In Galen , supra , the Court had for consideration the

following question certified to be of great public importance:

WHETHER SECTION 766.316, FLORIDA STATUTES

(1993), REQUIRES THAT HEALTH CARE PROVIDERS

GIVE THEIR OBSTETRICAL PATIENTS PRE - DELIVERY

NOTIC E OF THEIR PARTICIPATION IN THE FLORIDA

BIRTH RELATED NEUROLOGICAL INJURY

COMPENSATION PLAN AS A CONDITION PRECEDENT

TO THE PROVIDERS' INVOKING NICA AS THE

PATIENTS' EXCLUSIVE REMEDY?

Id. at 308. In answer to the certified question, the Court

held:

. . . as 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.

Id. at 309. The Court reasoned, as follows:

Section 766.316 provides in pertinent part:

Each hospital with a participating

physician on its staff and each

participating physician . . . under the

Florida Birth - Relate d Neurological Injury

Compensation Plan shall provide notice to

the obstetrical patients thereof 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.

Without exception the district courts of

appeal that have addressed the issue have

read section 766.316 to require pre - delivery

notice . . . .

We agree with t he district courts that the

only logical reading of the statute is that

before an obstetrical patient's remedy is

limited by the NICA plan, the patient must

be given pre - delivery notice of the health

care provider's participation in the plan.

Section 766. 316 requires that obstetrical

patients be given notice "as to the limited

no - fault alternative for birth - related

neurological injuries." That notice must

"include a clear and concise explanation of

a patient's rights and limitations under the

plan." § 76 6.316. This language makes

clear that the purpose of the notice 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 an d thereby preserving her civil

remedies. Turner v. Hubrich , 656 So. 2d

970, 971 (Fla. 5th DCA 1995). In order to

effectuate this purpose a NICA participant

must give a patient notice of the "no - fault

alternative for birth - related neurological

injuries" a reasonable time prior to

delivery, when practicable.

Our construction of the statute is supported

by its legislative history. Florida's

Birth - Related Neurological Injury

Compensation Plan was proposed by the 1987

Academic Task Force for Review of the

In surance and Tort Systems. In its

November 6, 1987 report, the Task Force

recommended adoption of a no - fault

compensation plan for birth - related

neurological injuries similar to the then

newly enacted Virginia plan (1987 Va. Acts

Ch. 540). Academic Task F orce for Review of

the Insurance and Tort Systems, Medical

Malpractice Recommendations 31 (Nov. 6,

1987)(hereinafter Task Force Report).

However, the Task Force was concerned that

the Virginia legislation did not contain a

notice requirement and recommend ed that the

Florida plan contain such a requirement.

The Task Force believed that notice was

necessary to ensure that the plan was fair 1

to obstetrical patients and to shield the

plan from constitutional challenge. 2 The

Task Force explained in its report :

The Virginia statute does not require

participating physicians and hospitals to

give notice to obstetrical patients that

they are participating in the limited no -

fault alternative for birth - related

neurological injuries. The Task Force

recommends tha t health care providers who

participate under this plan should be

required to provide reasonable notice to

patients of their participation. This

notice requirement is justified on fairness

grounds and arguably may be required in

order to assure that the l imited no fault

alternative is constitutional.

Task Force Report at 34 (emphasis added).

Since Florida's NICA plan was the result of

the Task Force's report, it is only logical

to conclude that the plan's notice

requirement was included in the Florida

le gislation as a result of this

recommendation and therefore was intended to

be a condition precedent to immunity under

the plan.

* * *

Under our reading of the statute, in order

to preserve their immune status, NICA

participants who are in a position to notify

their patients of their participation a

reasonable time before delivery simply need

to give the notice in a timely manner. In

those cases where it is not practicable to

notify the patient prior to delivery, pre -

delivery notice will not be requir ed.

Whether a health care provider was in a

position to give a patient pre - delivery

notice of participation and whether notice

was given a reasonable time before delivery

will depend on the circumstances of each

case and therefore must be determined on a

case - by - case basis . . . .

According ly , we answer the certified

question as explained herein and approve the

decision under review.

Id. at 309 - 311.

____________________ 1

The Task Force obviously believed that

because not all health care providers are

required to participate in the NICA plan,

fairness requires that the patient be made

awar e that she has limited her common law

remedies by choosing a participating

provider.

2 The Task Force also must have recognized

that failure to require notice would open

the plan up to constitutional attack. For

example, the Braniffs argue that if pre -

delivery notice is not a condition precedent

to immunity under the plan, patients will be

deprived of their common law remedies

without due process. However, be cause of

our resolution of the notice issue, we need

not reach the merit of this procedural due

process challenge.

12. Notably, the Court was not asked to resolve, and did

not resolve, whether the obligation to provide a form that

"include [d] a clear and concise explanation of a patient's

rights and limitations under the plan," required an explan ation

of the civil remedies a patient would forego if she chose a

participating p rovider . Moreover, the unambiguous language the

Legislature chose evidences no s uch intention. Rather, the Plan

requires that the form "include a clear ['[f]ree from doubt or

confusion'] 3 and concise ['[e]xpressing much in few words;

succinct'] 4 explanation ['the process of making plain or

comprehensible'] 5 of the patients' rights an d limitations under

the plan, " and does not include an obligation to explain a

patient's potential civil remedies at common law or otherwise.

Rinella v. Abifaraj , 908 So. 2d 1126, 1127 (Fla. 1st DCA

2005)("Where the plain and ordinary meaning of statutory

language is unambiguous, we cannot construe the statute in a

manner that would extend, modify, or limit its express terms o r

its reasonable and obvious implications."); Seagrave v. State ,

802 So. 2d 281, 287 (Fla. 2001)(quoting Hayes v. State , 750 So.

2d 1, 4 (Fla. 1999))("[I]t is a basic principle of statutory

construction that Courts ' are not at liberty to add words to

statutes that are not placed there by the Legislature.'");

Crutcher v. School Board of Broward County , 834 So. 2d 228, 232

(Fla. 1st DCA 2002)(" W hen a court construes a statute, its goal

is to ascertain legislative intent, and if the language of the

statute under scrutiny is clear and unambiguous, there is no

reason for construction beyond giving effect to the plain

meaning of the statutory words . " ); American Bankers Life

Assurance Company of Florida v. Williams , 212 So. 2d 777, 778

(Fla. 1st DCA 1968)("Words of common usage should be construed

in their plain and ordinary sense ." ). The brochure prepared by

NICA satisfies the l egislative man date. Jackson v. Florida

Birth - Related Neurological Injury Compensation Association , 31

Fla. L. Weekly D8676 (Fla. 5th DCA March 24, 2006)("The ALJ

properly recognized that NICA developed a pamphlet titled 'Peace

of Mind for an Unexpected Problem.' The p amphlet contains a

clear and concise explanation of a patient's rights and

limitations under th e NICA plan, as is required by the terms of

the statute.") (petition for rehearing pending).

Findings related to the participating

physician and notice

13. Mr s. Dianderas received her prenatal care at Loch

Haven OB/GYN Group, Orlando, Florida, a group practice comprised

of a number of physicians, including Natasha M. Knight, M.D.,

and dedicated to the practice of obstetrics and gynecology. At

the time, Loch Ha ven, like Florida Hospital, was owned by

Adventist Health System/Sunbelt, Inc.; however, patients,

including Mrs. Dianderas, were not noticed, by signage or

otherwise, of the relationship the business entities shared.

14. On February 14, 2002, Mrs. Diande ras presented to Loch

Haven for her initial visit. At the time, consistent with

established practice for new obstetric patients, Mrs. Dianderas

was given a copy of the NICA brochure, together with a Notice to

Obstetric Patient (to acknowledge receipt of t he NICA brochure).

The Notice to Obstetric Patient provided, as follows:

Notice to Obstetric Patient

I have been furnished with information by

the Loch Haven OB/GYN as prepared by the

Florida Birth - Related Neurological Injury

Compensation Association and have been

advised that the physicians of the Loch

Haven OB/GYN Group are participating members

in the Florida Birth - Related Neurological

Injury Compensation Association. This Plan

provides that certain limited compensation

is available in event certain b irth - related

neurological injuries may occur during

labor, delivery 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 - 04567, (904) 488 - 8191 or 1 -

800 - 3982129: I further acknowledge that I

have received a copy of the form brochure

prepared and furnished by the Florida Birth -

Related Neurological Injury Compensation

Associat ion.

____________________________________________

Patient Signature Date

____________________________________________

Print Name

____________________________________________

Social Security Number D.O.B.

________________ ____________________________

Witness Date

Mrs. Dianderas completed the form, by providing the requested

information (name, social security number, and date of birth),

and then signed and dated the form. Beverly Bailey, the med ical

assistant who saw Mrs. Dianderas on her initial visit, witnessed

her signature.

15. Here, Mrs. Dianderas acknowledges she signed the

Notice to Obstetric Patient, but has no current recollection of

having done so, and has no current recollection of whether she

was or was not given a copy of the NICA brochure. (Transcript,

pages 39 - 41 and 54 - 58). Moreover, Petitioners candidly concede,

they can offer no proof to rebut the presumption that the notice

provisions were met by the participating physician .

(Transcript, pages 9, 55, 56, and 278). Consequently, since the

NICA brochure complied with the requirements of Section 766.316,

Florida Statutes, the participating physician satisfied the

notice provisions of the Plan. However, notwithstanding the

co mmon ownership of Loch Haven and Florida Hospital by

Adventist, they were separate business entities, and the notice

by Loch Haven (on behalf of its physicians) did not satisfy

Florida Hospital's obligation to give notice. § 766.316, Fla.

Stat. ("Each ho spital with a participating physician on its

staff and each participating physician . . . shall provide

notice to the obstetrical patients as to the limited no - fault

alternative for birth - related neurological injuries."); Board of

Regents v. Athey , 694 So. 2d 46, 49 (Fla. 1st DCA 1997)("Under

section 766.316 . . . notice on behalf of the hospital will not

by itself satisfy the notice requirement imposed on the

participating physician(s) involved in the delivery . . . ."

Conversely, it reasonably follows, n otice on behalf of the

participating physician will not by itself satisfy the notice

requirement imposed on the hospital.)

Findings related to the hospital and notice

16. To support an inference that it complied with the

notice provisions of the Plan, th e hospital offered proof of the

practice it followed to provide a copy of the NICA brochure and

Notice to Obstetric Patient form (acknowledgment form) 6 to each

patient who presented to labor and delivery. 7 See Tabb v.

Florida Birth - Related Neurological In jury Compensation

Association , 880 So. 2d 1253 (Fla. 1st DCA 2004). Here,

Mrs. Dianderas presented to the labor and delivery on two

occasions (September 29, 2002, and October 7, 2002), during

which the hospital had an opportunity to provide notice, and

du ring which the hospital claims it provided notice. 8

17. With regard to Mrs. Dianderas' first admission, the

proof demonstrates that at or about 7:25 p.m., Sunday,

September 29, 2002, Mrs. Dianderas, with an estimated delivery

date of October 14, 2002, and the fetus at 37 weeks' gestation,

presented to labor and delivery, at Florida Hospital, with

complaints of contractions. At the time, the finance window was

closed, as it had been since 11:00 p.m., Friday, and would be

until 6:00 a.m., Monday, and Mrs. Dianderas was admitted to the

triage unit by Cynthia Hall, R.N., the on - duty triage nurse.

Notably, Nurse Hall, who was responsible for completing all

paperwork associated with Mrs. Dianderas' admission, attended

Mrs. Dianderas from 7:25 p.m., until her d ischarge (after it was

resolved Mrs. Dianderas was not in labor) at 12:19 a.m.,

September 30, 2002, except for a brief period (between

9:17 p.m., and 10:20 p.m.) when Mrs. Dianderas was taken for an

ultrasound.

18. With regard to notice, Nurse Hall, who routinely works

weekends, testified that it was her practice, during her initial

evaluation in triage, to provide the patient a copy of the NICA

brochure, as well as an acknowledgment form and Consent to

Treatment form to complete and sign. According to Nurse Hall,

the forms were routinely signed in her presence, were routinely

witnessed by her, and she routinely made a photocopy of the

acknowledgment form and placed it on the finance clerk's desk

( that was adjacent to her desk), so finance could update t heir

computer records on Monday to reflect that the NICA brochure had

been given. The original documents, including the original

acknowledgment form, were place d in the patient's chart.

19. Here, Nurse Hall is confident she followed her

routine, and Mrs. Dianderas' chart does include a Consent to

Treatment form signed by Mrs. Dianderas and witnessed by Nurse

Hall. However, the chart does not include a signed

acknowledgment form, as it should if Nurse Hall followed her

routine practice, and she could offe r no explanation for its

absence. Also inexplicably, the finance records related to this

visit (Intervenors' Exhibit 1A, pages 1 and 2), reveal that at

8:48 p.m. (20:48), September 29, 2002, a financ e clerk

identified as "RLCEE8" updated Mrs. Dianderas' r ecord to reflect

that a copy of the NICA brochure had been provided. Notably,

according to Nurse Hall, who was in a position to know, the

finance office (in which she would have placed a copy of the

acknowledgment form) was not staffed at the time, and sh e could

not explain those entries (which she did not and was not

authorized to make). Moreover, at hearing, the hospital made no

effort to identify "RLCEE8" or to otherwise explain how these

entries occurred. Consequently, given such irregularities it

ca nnot be inferred, with any sense of confidence, that the

hospital or Nurse Hall's routine was followed during Mrs.

Dianderas' September 29, 2002, admission, or that she was

provided a copy of the NICA brochure.

20. With regard to Mrs. Dianderas' second ad mission, which

ultimately led to Isabelle's birth, the proof demonstrates that

at 2:00 p.m., October 7, 2002, Mrs. Dianderas, with the fetus at

39 weeks' gestation, presented to labor and delivery, at Florida

Hospital, on referral from her obstetrician for a nonstress test

(NST), secondary to decreased fetal movement. At the time, the

finance window was open, and Iris M i randa, a financial services

representative was on duty.

21. With regard to notice, Ms. M i randa testified (by

publication of her depositio n) regarding the routine she would

have followed when Mrs. Dianderas presented to the finance

window that afternoon . According to Ms. Miranda, that routine

would have included giving Mrs. Dianderas a Consent for

Treatment form to sign, as well as a copy o f the NICA brochure

and an acknowledgment form to sign and give to the nurse in

labor and delivery.

22. Here, Ms. M i randa is confident she followed her

routine, and Mrs. Dianderas' chart does include a Consent to

Treatment form signed by Mrs. Dianderas an d witnessed by

Ms. M i randa. Moreover, the finance department's records

(Intervenors' Exhibit 1B, pages 1 and 2) include a computer

entry at 2:03 p.m. (14:03), October 7, 2002, by Ms. M i randa

(identified as "IVM76B") noting that a NICA brochure was

provide d. However, again the chart does not include a signed

acknowledgment form, as it should if the hospital's routine was

followed, and no compelling explanation for its absences was

presented. 9 Consequently, given the lack of a reasonable

explanation for th e irregularities that have been shown

regarding the finance department's computer entries, as well as

the absence of the acknowledgment form, it cannot be inferred

with any sense of confidence that the hospital's routine was

followed during Mrs. Dianderas' admission of October 7, 2002, or

that Mrs. Dianderas was given a NICA brochure

2 3 . Finally, with regard to the hospital and the notice

issue, it is noted that on presentation to Florida Hospital at

2:00 p.m., October 7, 2002, Mrs. Dianderas was not in l abor, and

insofar as the record reveals she was not thereafter in labor

until sometime after her membranes were ruptured , at 4:55 p.m.

More particularly, there was no "evidence of the onset and

persistence of uterine contractions or rupture of the membran es"

from 2:00 p.m., until 4:55 p.m., October 7, 2002. Moreover,

there was no proof that, upon admission or until her membranes

ruptured, "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 4:55 p.m., when her membranes were ruptured,

Mrs. Dianderas did not have an "emergency medical condition," as

defined by Section 395.002(9)(b), Florida Statutes, that wou ld

have excused the giving of notice. Moreover, there was no proof

to support a conclusion that the giving of notice was not

practicable.

CONCLUSIONS OF LAW

Jurisdiction

2 4 . 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 5 . 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

depriv ation 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 teaching hospital

supervised by a part icipating 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 and 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

for a single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occur ring 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

physician who provided obstetrical services at Isabelle's birth

was a "participating physician," and that Isabelle suffered a

"birth - related neurological injury." Consequently, Isabelle

qualifies for coverage under the Plan, and Petitioners are

entitled to an award of compensation. §§ 766.309 and 766.31,

Fla. Stat. However, in this case, the issues of compensability

and notice , and issues related to an award were bifurcated.

Accordingly, absent agreement by the parties, and subject to the

approval of the administrative law judge, a hearing will be

necessary to resolve any disputes regarding the amount and

manner of payment of "an award to the parents . . . of the

infant," the "[r]easonable expenses incurred in connection with

the filing of . . . [the] claim . . ., including reasonable

attorney's fees," and the amount owing for "expenses previously

incurred." § 766.31(1), Fla. Stat. Nevertheless, since the

notice of intent to initiate civil litigation related to

Isabelle's birth was mailed on or after September 15, 2003, the

determinations of compensability and notice constitute final

agency action which is subject to appella te court review. 10

§ 766.309(4), Fla. Stat.; Ch. 2003 - 416, § 77, Laws of Fla.

Notice

28 . While the claim qualifies for coverage, Petitioners

have sought the opportunity to avoid a claim of Plan immunity in

a civil action, by requesting a finding that th e notice

provisions of the Plan were not satisfied by the healthcare

providers. As the proponent of the immunity claim, the burden

rested on the healthcare providers to demonstrate, more likely

than not, that the notice provision s of the Plan were satisfi ed.

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 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.") Here, for reasons

appearing in the Findings of Fact, the participating physician

demonstrated that she complied with the notice provision of the

Plan, but the hospital did not.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusion s of

Law, it is

ORDERED that the claim for compensation filed by

Maribenny Dianderas and Arturo Dianderas, individually, and as

parents and natural guardians of Isabelle Dianderas, a minor , be

and the same is hereby approved.

It is FURTHER ORDERED that th e participating physician

complied with the notice provisions of the Plan, but the

hospital did not.

It is FURTHER ORDERED that the parties are accorded 30 days

from the date of this order to resolve, subject to approval by

the administrative law judge, th e amount and manner of payment

of an award to the parents, the reasonable expenses incurred in

connection with the filing of the claim, including reasonable

attorney's fees, and the amount owing for expenses previously

incurred. If not resolved within suc h period, the parties shall

so advise the administrative law judge, and a hearing will be

scheduled to resolve such issues. Once resolved, an award will

be made consistent with Section 766.31, Florida Statutes.

DONE AND ORDERED this 8th day of May, 2006 , 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 SUNCO M 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of May, 2006 .

ENDNOTES

1/ 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 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 Compensatio n

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 Com pensation Association , 893

So. 2d 636 (Fla. 2d DCA 2005) (same) . See also Senate Bill (SB)

542, approved by the Governor May 2, 2006, which provided in

pertinent part, as follows:

Section 1. Paragraph (d) is added to

subsection (1) of section 766.309, Fl orida

Statutes, to read:

766.309 Determination of claims;

presumption; findings of administrative law

judge binding on participants. --

(1) The administrative law judge shall make

the following determinations based upon all

available evidence:

(d) Whet her, if raised by the claimant or

other party, the factual determinations

regarding the notice requirements in s.

766.316 are satisfied. The administrative

law judge has the exclusive jurisdiction to

make these factual determinations.

Section 2. It is t he intent of the

Legislature that the amendment to s.

766.309, Florida Statutes, contained in this

act, clarifies that since July 1, 1998, the

administrative law judge has had the

exclusive jurisdiction to make factual

determinations as to whether the noti ce

requirements in s. 766.316, Florida

Statutes, are satisfied . [Words underlined

are additions.]

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

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

Dorland's Illustrated Medical Dictionary , 28th Edition, 1994.

"Regular," is commonly understood to mean "[o]ccurring at fixed

intervals, periodic." The American Heritage Dictionary of the

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

"persistent," as that term is used in Section 39 5.002(9)(b)3,

Florida Statutes, is commonly understood to mean "[i]nsistently

repetitive or continuous." Id.

3/ See "clear," The American Heritage Dictionary of the English

Language, New College Edition (1979).

4/ See "concise," Id.

5/ See "explana tion," Id.

6/ The acknowledgment form used by the hospital provided:

NOTICE TO OBSTETRIC PATIENT

Pursuant to Florida Statute 766.316

I have been furnished with information by

Florida Hospital that was prepared by the

Florida Birth Related Neurological Injury

Compensation Association (NICA). Under the

Association's NICA program, certain limited

compensation is available in the event that

certain neurological injury may occur to my

infant during labor, delivery or

resuscitation. I have also been informe d

that Florida Hospital, its related or

affiliated organizations, and their employed

physicians are participants in the NICA

program.

I acknowledge and understand that my

personal physician, or an on - call physician

who [sic] I have been assigned to, may o r

may not participate in the NICA program. I

understand that I may seek clarification

from my physician as to his/her

participation in the NICA program. I

understand it is my responsibility to

discuss this with my physician.

For specifics on the program , I understand

that I can contact the Florida Birth Related

Neurological Compensation Association

(NICA), 1435 East Piedmont Drive, Suite 101,

Tallahassee, Florida 32312 (904) 488 - 8191,

which is also listed in the NICA brochure.

I further acknowledge tha t I have received a

copy of the NICA brochure called "Peace of

Mind for an Unexpected Problem" from Florida

Hospital prepared by NICA.

____/____ _____________________________

Date Time Patient/Legally Authorized Person Signature

______ _____ _____________________________

Witness Patient's Name Printed

(Joint Exhibit 6).

7/ Pertinent to a resolution of the notice issue, is an

understanding of the physical layout of the labor and delivery

area, as well as an understand ing of two differing circumstances

under which notice may be provided at labor and delivery, and by

whom.

Regarding the physical layout of the labor and delivery area,

the proof demonstrates that the area includes an anteroom or

waiting area, with a regis tration window (also referred to as

the finance window) that, during normal business hours, is

staffed by a financial services representative ( also referred to

as a financ e clerk or an admissions clerk during the course of

this proceeding ) . The finance wi ndow looks into a small office,

occupied by the finance clerk, which is actually in labor and

delivery and abuts the office of the triage nurse. Entrance to

labor and delivery is gained through a door in the waiting area,

when admitted by clinical staff.

The circumstances under which notice is provided, and by whom,

is two - fold. First, during normal business hours, and absent an

emergency, the finance clerk will greet the patient, alert

clinical staff to her needs, and (under the hospital's practice)

pro vide the patient a demographics form to complete, a Consent

to Treatment and Authorizations and Guarantee form (Consent to

Treatment form ) to sign, a copy of the NICA brochure and a copy

of the acknowledgment form to complete. However, the finance

clerk d oes not insist that the patient sign the acknowledgment

form in her or his presence, but directs the patient to the

waiting area, where she is told to sign the form after she has

read the brochure, and to give the form to the nurse when she is

called into labor and delivery. Under the hospital's practice,

the completed acknowledgment form is to be placed and retained

in the patient's chart.

On those occasions when the finance window is closed, and no

finance clerk is on duty, such as week ends (from 11:00 p.m.,

Friday, until 6:00 a.m., Monday), clinical staff are required to

complete the additional paperwork ( that would otherwise have

been done by the finance clerk ) , after the patient is received

in labor and delivery. That paperwork (under the hospital's

practice) include s a brief demographic form, the Con s ent to

Treatment form , the provision of the NICA brochure , and the

completion of the acknowledgment form. Again, the original

acknowledgment form is to be placed and retained in the

patient's chart.

8 / Petitioners also offered proof that Mrs. Dianderas was at

the hospital on two prior occasions during her pregnancy with

Isabelle, and was not provided notice. On one such occasion,

Mrs. Dianderas had a tour of the obstetrical unit in connection

with he r birthing classes, but the circumstances of that visit

were not further described and it cannot be resolved whether her

presence on that occasion provided a reasonable opportunity for

the hospital to give notice. On another occasion,

Mrs. Dianderas prere gistered at the hospital, and it is

reasonable to infer the hospital had a meaningful opportunity to

provide notice at that time, but failed to do so. However, such

failure was inconsequential, since whether notice was given on

September 29, 2002, or Octo ber 7, 2002, is dispositive of the

notice issue with regard to the hospital.

9/ Apparently, the hospital is of the view that the absent

forms do not evidence a breakdown in routine, but simply a loss

of the forms or, in the case of Mrs. Dianderas' Octobe r 7, 2002,

admission , that Mrs. Dianderas failed to give the nurse the

signed acknowledgment form. However, if the practice was

routine, one would expect the nurse to request the form when

Mrs. Dianderas entered on October 7, 2002 (since the form was

requ ired and had to be placed in the patient's chart), and it is

unlikely such an important form would be unaccounted for on one

occasion, much less on two occasions. Rather , a more likely

explanation, given that Mrs. Dianderas evidenced no reluctance

to sign any form the hospital presented to her, is that neither

the NICA brochure nor the acknowledgment form was provided.

10/ Transcript, pages 5 and 6, wherein the parties stipulated

that the notice of intent was mailed on May 6, 2004.

COPIES FURNISHED :

(V ia Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7002 2030 0006 4479 5364)

Stanley L. Martin, Esqui re

Donald H. Whittemore, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

(Certified Mail No. 7002 2030 0006 4479 5371)

John W. Bocchino, Esquire

Bobo, Ciotoli, Bocchino &

Newman, P.A.

315 East Robinson Street, Suite 5 10

Orlando, Florida 32801 - 1983

(Certified Mail No. 7002 2030 0006 4479 5388)

Scott McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

(Certified Mail No. 7002 2030 0006 4479 5395)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7002 2030 0006 4479 5401)

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 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

Comp ensation 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.