12-000848N Desiree Williams And Robert Williams, Individually And As Parents And Next Friends Of Lylyauhnie Williams, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, June 21, 2013.

Summary: Infant sustained oxygen deprivation during labor which resulted in permanent and substantial mental and physical impairment. Participating physician provided notice but hospital did not.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DESIREE WILLIAMS AND ROBERT

WILLIAMS, individually and as

parents and next friends of

LYLYAUHNIE WILLIAMS, a minor ,

Petitioners ,

vs. Case No. 12 - 0848N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIAT ION ,

Respondent,

and

PALMS WEST HOSPITAL LIMITED

PARTNERSHIP, d/b/a PALMS WEST

HOSPITAL, AND STEVEN PLISKOW,

M.D.,

Intervenors .

/

FINAL ORDER

Pursuant to notice, a final hearing was hel d in this case on

April 30, 2013, by video teleconference with sites in Tallahassee

and West Palm Beach, Florida, before Susan Belyeu Kirkland, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Nancy La V ista, Esquire

Julie H. Littky - Rubin, Esquire

Clark, Fountain, La Vista, Prather ,

Keen and Littky - Rubin

2nd Floor

1919 North Flagler Drive

West Palm Beac h, Florida 33407

For Respondent: David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33 3 24

For Intervenor Palms West Hospita l, Limited Partnership,

d/b/a Palms West Hospital:

Bruce M. Ramsey, Esquire

Billing, Cochran, Lyles, Mauro

a nd Ramsey, P.A.

Suite 400

160 1 Forum Place

West Palm Beach, Florida 33401

For Intervenor Steven Pliskow, M.D.:

James S. Haliczer, Esquire

Trisha Widowfield, Esquire

Haliczer, Pettis and Schwamm, P.A.

7th Floor

100 Southeast 3rd Avenue

Fort Lauderdale, Florida 33308

STAT EMENT OF THE ISSUES

The issues to be determined in this proceeding ar e whether

Steven Pliskow, M.D. (Dr. Pliskow) , provided notice as required

by section 766.316, Florida Statutes , and whether Palms West

Hosp ital , Limited Partnership, d/b/a Palms West Hospital (Palms

West Hospital) provided notice as required by section 766 . 3 16.

PRELIMINARY STATEMENT

On March 5, 2012, Petitioners, Desiree Williams and

Robert Williams, individually and as parents and next friends of

Lylyauhnie Williams, a minor, filed a Petition for Determination

of NICA Coverage with the Division of Admini strative Hearings,

seeking compensation under the Florida Birth - Related Neurological

Injury Compensation Plan (Plan).

On April 20, 2012, Petitioners' counsel, Allison C.

McMill a n, Esquire, filed a motion to withdraw, which was granted

by Order dated May 8, 2012. On May 8, 2012, Paul Silva, Esquire,

filed a Notice of Appearance on behalf of Petitioners. On

July 6, 2012, Mr. Silva filed an Amended Petition for

Determination as to Applicability of Florida Birth - Related

Neurological Injury Compensation Plan, asserting that Petitioners

did not believe that the claim was compensable under the Plan.

On July 12, 2012, Palms West Hospital filed a motion to

intervene, which was granted by Order dated July 25, 2012. On

July 25, 2012, Dr. Pliskow filed an amended pet ition to

intervene, which was granted by Order dated August 7, 2012.

On September 6, 2012, Respondent, Florida Birth - Related

Neurological Injury Compensation Association, filed a Notice of

Compensability and Request for Evidentiary Hearing on

Compensabilit y.

On October 12, 2012, Mr. Silva filed a motion to withdraw,

which was granted by Order dated October 22, 2012. On

October 29, 2012, Petitioners ' current counsel filed a Notice of

Appearance.

On October 15, 2012, Respondent filed a Motion for Summary

Final Order. The motion was denied by Order dated December 21,

2012.

On November 2, 2012, Petitioners filed Petitioners' Notice

of Withdrawal of Acceptance of NICA Compensability and Objection

to Entry of Summary Final Order on the Issue of Compensabilit y.

On November 2, 2012, Petitioners filed Petitioners' Motion to

Amend Amended Petition for Determination as to Applicability of

Florida Birth - Related Neurological Injury Compensation Plan to

Add Additional Facts and Claims B ased on the Record. The motio n

was granted by Order dated December 21, 2012. The amended

petition asserted that the claim was not compensable and that

notice had not been provided by Intervenors as required by

section 766.316.

On March 18, 2013, Respondent filed a Renewed Motion for

Summary Final Order, representing that Petitioners no longer

disputed that the claim was compensable, but still asserted that

the required notice had not been provided by either Dr. Pliskow

o r Palms West Hospital. On April 19, 2013, a Partial Summary

Fina l Order was entered on the issue of compensability, finding

that the claim was compensable and retaining jurisdiction to

determine the issue of notice.

At the final hearing, Joint Exhibits 1 through 17 were

admitted in evidence. Petitioners testified in t heir own behalf

and called Dr. Pliskow and Robin Torres as witnesses. Neither

Respondent nor Intervenors called any witnesses.

The one - volume Transcript of the final hearing was filed on

May 15, 2013. Petitioners filed their proposed final order on

May 2 4, 2013, and Intervenors filed their proposed final orders

on May 28, 2013. Respondent did not file a proposed final order.

The parties' proposed final orders have been considered in the

drafting of this Final Order.

FINDINGS OF FACT

1. Desiree Williams first presented to Dr. Pliskow on

November 28, 2011, for a prenatal visit. She was 34 weeks '

gestation. When she arrived at Dr. Pliskow's office,

Mrs. Williams was given some forms to fill out by the

receptionist. She filled out, signed, and dated a Pa tient

Registration Form and a Policies and Consent form and returned

them to the receptionist. The forms were initialed by the

receptionist.

2. After she returned the forms to the receptionist,

Mrs. Williams returned to the waiting room, while her chart was

being prepared by Dr. Pliskow's medical assistant,

Marlena Lovely. Ms. Lovely took Mrs. Williams to the triage

area. Mrs. Williams remembers Ms. Lovely because Ms. Lovely was

wearing unusual pink tye - dyed shoes.

3. While in the triage area, Ms. Lo vely gave Mrs. Williams

a copy of the brochure published by the Florida Birth - Related

Neurological Injury Compensation Association (NICA brochure).

She also gave Mrs. Williams the Patient Information Verification

form, the Prenatal Risk Screening form, an d the Prenatal Genetic

Screening form for Mrs. Williams to fill out. Mrs. Williams

filled out the forms.

4. The Prenatal Information Verification form contains the

following statement:

The first OB visit is an important time to

insure that you start yo u prenatal care

informed and confident that you are making

the right decision regarding your pregnancy.

As we progress together through the

pregnancy, we will discuss many aspects of

the prenatal care and delivery. Please

confirm that you have received t he following

information and that all your questions have

been answered.

After this statement, there is a list of items and beside each

item is a blank for the date and a blank for the patient's

initials. The first item listed is the NICA brochure.

Mrs. Williams placed the date, "11/28/2011," on the blank for the

date and placed her initials on the blank designated for the

patient's initials.

5. After filling out the forms in triage, Mrs. Williams was

taken to Dr. Pliskow's office, where Dr. Pliskow dis cussed the

pertinent items on the Prenatal Information Verification form

with Mrs. Williams. Dr. Pliskow recalls seeing the NICA brochure

in Mrs. Williams' lap while he was discussing the items on the

form with Mrs. Williams. Dr. Pliskow initialed the Pr enatal

Information Verification form after he discussed the items with

Mrs. Williams. After his discussion with Mrs. Williams, she was

taken to the examination room, where Dr. Pliskow examined her.

6. Mrs. Williams denies having received the NICA brochur e

during her visit to Dr. Pli sk ow's office on November 28, 2011.

However, based on the normal routine and practice in

Dr. Pliskow's office, it is more likely than not that

Mrs. Williams did receive a copy of the NICA brochure from

Dr. Pliskow's office on November 28, 2011.

7 . The routine practice in Dr. Pliskow's office for a first

time obstetric patient was to have the receptionist give the

patient the Patient Registration form and the Policies and

Consent Form to fill out while the patient was in the wa iting

room. After the patient returned the forms to the receptionist,

the receptionist would initial the forms and give them to

Dr. Pliskow's medical assistant to compile a chart. The medical

assistant would then take the patient to the triage area where

the patient would be given the Prenatal Risk Screening form, the

Prenatal Genetic Screening form, and a Prenatal Information

Verification form to complete. The medical assistant would give

the patient the NICA brochure while the patient was in triage.

A fter triage, the patient would be taken to see Dr. Pliskow in

his office, where Dr. Pliskow would discuss the items listed in

the Prenatal Information Verification form with her. He would

also discuss the NICA brochure and advise the patient that he was

a participating physician. After this discussion, the patient

would be taken to the examination room to be examined by

Dr. Pliskow.

8 . Mrs. Williams presented to Palms West Hospital on

December 19, 2011, and pre - registered for her delivery. On

December 2 9, 2011, Mrs. Williams presented again to Palms West

Hospital for a biophysical profile.

9 . Palms West Hospital did not provide Mrs. Williams with

notice as to the limited no - fault alternative for birth - related

neurological injuries under the Plan on De cember 19, 2011, or

December 2 9 , 2011.

1 0 . Palms West Hospital was not prohibited or constrained

from providing notice to Mrs. Williams of the Plan on either

December 19, 2011, or December 29, 2011.

1 1 . On January 3, 2012, Mrs. Williams presented to Palm s

West Hospital after a spontaneous rupture of membranes. When she

arrived at the hospital, she was given some forms to complete and

sign. One of the forms that she was given and which she signed

and dated was the Acknowledgement of Patient's Receipt of the

Florida Birth - Related Neurological Injury Compensation Plan

Brochure. The form stated:

1. I ACKNOWLEDGE THAT I HAVE RECEIVED THE

OFFICIAL INFORMATION BROCHURE OF THE Florida

Birth - Related Neurological Injury

Compensation Plan.

2. I acknowledge that any questions I may

have had with regard to the operation of this

plan and the potential benefits available to

me have been answered to my satisfaction.

3. I hereby consent to the rendering of all

necessary medical services including having

received the official information NICA

brochure which describes my rights and

limitations under that plan.

4. I acknowledge and understand that I may

contact the Florida Birth - Related

Neurological Compensation Association about

the details of the plan.

1 2 . Mrs. Wi lliams ' signature on the acknowledgement form

was witnessed by Robin Torres, a registered nurse in the labor

and delivery unit at Palms West Hospital. Part of Ms. Torres'

duties and routine practice at Palms West Hospital is to give

incoming obstetrical p atients a copy of the NICA brochure prior

to her signing her name to the acknowledgement form as a witness.

Ms. Torres also routinely manually inputs data into the hospital

computer showing that the NICA brochure was given to the patient.

The records of Palms West Hospital show that on January 3, 2012,

Ms. Torres entered data into the hospital computer system

indicating that Mrs. Williams was provided a copy of the NICA

brochure on that date.

1 3 . Mrs. Williams denies being given a copy of the NICA

brochu re when she presented to Palms West Hospital on January 3,

2012, but concedes that she did not read the forms that were

provided to her on that date. The greater weight of the evidence

demonstrates that Mrs. Williams was given a copy of the NICA

brochure by the staff of Palms West Hospital on January 3, 2012.

1 4 . At the time that Mrs. Williams presented to Palms West

Hospital on January 3, 2012, she could not be transferred to

another hospital because her membranes had broken and she was in

labor.

CONCLUS IONS OF LAW

1 5 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. (2012).

1 6 . The only issue that was to be determined in the final

hearing is whether n otice was provided pursuant to section

766.316, which provides:

Each hospital with a participating physician

on its staff and each participating

physician, other than residents, assistant

residents, and interns deemed to be

participating physicians under s .

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

Related Neurological Injury Compensation Plan

shall provide notice to the obstetrical

patients as to the limited no - fault

alternative for birth - related neurological

injuries. Such notice shall be provided on

forms furnished by the association and shall

include a clear and concise explanation of a

patientÓs rights and limitations under the

plan. The hospital or the participating

physician may elect to have the patient sign

a form acknowledging receipt of the notice

form. Signature of the patient acknowledging

receipt of the notice form raises a

rebuttable presumption that the notice

requirements of this section have been met.

Notice need not be given to a patient when

the patient has an emergency medical

condition as defined in s. 395.002(8)(b) or

when notice is not practicable.

1 7 . Section 766.309(1)(d) provides:

(1) The administrative law judge shall

make the following determination based upon

all available evidence:

* * *

(d) Whether 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.

18 . Petitioners contend that Dr. Plisko w did not provide

notice and that any notice that may have been provided by the

hospital was insufficient. Respondent did not take a position on

the notice issue. Intervenors contend that the appropriate

statutory notice was given. As the proponent of t he proposition

that appropriate notice was given, the burden on the issue of

notice is upon the Intervenors. Tabb v. Fla. Birth - Related

Neurological Injury Comp. Ass'n. , 880 So. 2d 1253, 1257 (Fla. 1st

DCA 2004).

19 . The greater weight of the evidence es tablished that

Dr. Pliskow provided Mrs. Williams a copy of the NICA brochure

when she made her first visit to his office on November 28, 2011.

Thus, Dr. Pliskow satisfied the notice requirement in section

766.316.

2 0 . Petitioners and Palms West Hospital stipulated that the

hospital did not provide Mrs. Williams with a copy of the NICA

brochure when she pre - registered at the hospital on December 19,

2011, and when she went to the hospital on December 2 9 , 2011, for

testing. The greater weight of the evide nce did establish that

Palms West Hospital did provide Mrs. Williams with a copy of the

NICA brochure when she presented to the hospital on January 3,

2012.

2 1 . In Weeks v. Florida Birth - Related Neurological Injury

Compensation Association , 977 So. 2d 616 , 618 - 619 (Fla. 5th DCA

2008), the court stated:

[T]he formation of the provider - obstetrical

patient relationship is what triggers the

obligation to furnish the notice. The

determination of when this relationship

commences is a question of fact. Once the

relationship commences, because [section

766.316] is silent on the time period within

which notice must be furnished, under well -

established principles of statutory

construction, the law implies that notice

must be given within a reasonable time.

Burnsed v. Seaboard Coastline R. Co. , 290 So .

2d 13, 19 (Fla. 1974); Concerned Citizens of

Putnam County v. St. Johns River Water Mgmt.

Dist. , 622 So. 2d 520, 523 (Fla. 5th DCA

1993). The determination depends on the

circumstances, but a central consideration

sh ould be whether the patient received the

notice in sufficient time to make a

meaningful choice of whether to select

another provider prior to delivery, which is

the primary purpose of the notice

requirement.

2 2 . The facts of this case established that a provider

obstetrical patient relationship was established between

Mrs. Williams and Palms West Hospital when Mrs. Williams pre -

registered at the hospital on December 19, 2011. There was

nothing that prevented the hospital from providing Mrs. Williams

with the NICA brochure at that time, but the hospital chose not

to do so.

2 3 . Palms West Hospital had a second opportunity to provide

Mrs. Williams with the required statutory notice on December 2 9 ,

2011, when Mrs. Williams presented to the hospital for testi ng.

Again, there was nothing which prevented the hospital from

providing the notice on December 2 9 , 2011, but it chose not to do

so.

2 4 . In Northwest Medical Center, Inc. v. Ortiz , 920 So. 2d

781, 784 (Fla. 4th DCA 2006), the court, (citing Galen of

Flor ida, Inc. v. Braniff , 920 So. 2d 781 (Fla. 1997)) discussed

the timing of the provision of notice required by section 766.316

and stated:

The supreme court [in Braniff ] determined

"this language makes clear that the purpose

of the notice is to give an ob stetrical

patient an opportunity to make an informed

choice between using a health care provider

participating in the NICA Plan or using a

provider not a participant and thereby

preserving her civil remedies."

* * *

The court also determined that "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 cas e - by -

case basis."

2 5 . In Ortiz , the patient, Mrs. Ortiz, had preregistered at

the hospital over three months prior to her delivery. The

hospital did not give notice to the patient at the time of

preregistration. When Mrs. Ortiz came to the hospital for

delivery, she was having soft contractions. About five hours

after she arrived at the hospital, she was given an NICA

acknowledgment form to sign. A short time later a cesarean was

performed on Mrs. Ortiz because she was in critical condition.

The cour t held that the notice provided by the hospital was

ineffective.

Northwest [the hospital] knew that Mrs. Ortiz

intended to deliver her child there three

months before her actual admission. At that

time she was given substantial information

regarding her m edical care at the hospital

and she signed several consent forms. If the

purpose of the notice requirement is to give

the patient the choice to choose NICA

protected delivery or not, hospitals should

give notice at a time where such choice can

still be ma de. By waiting until an emergency

arises, the hospital is depriving the patient

of this choice. Therefore, by failing to

give notice of NICA participation a

reasonable time prior to delivery, although

able to do so, Northwest lost the protection

of NICA and the Ortizes are entitled to

pursue their civil remedies.

* * *

Northwest also argues that even if it could

have given an earlier notice, it satisfied

the statutory notice provision by informing

Mrs. Ortiz about NICA on the day she was

admitte d to the hospital. The Ortizes

maintain this notice was ineffective because

it was not given to Mrs. Ortiz until a time

when she would have been unable to act on the

information. Because the purpose of the

notice is "to give an obstetrical patient an

opp ortunity to make an informed choice

between using a health care provider

participating in the NICA plan or using a

provider who is not a participant and thereby

preserving her civil remedies," see

Braniff , 696 So . 2d at 309 - 310, the notice

was ineffective in this case.

Ortiz , 920 So. 2d at 785 - 786.

2 6 . The notice provided by Palms West Hospital on

January 3, 2012, was ineffective because at the time the notice

was provided Mrs. Williams could not have been transferred to

another hospital. She did not hav e sufficient time to make an

informed choice on whether to use a participating health care

provider. The hospital had two opportunities to provide notice

to Mrs. Williams prior to her presenting for delivery, but did

not avail itself of those opportunitie s. Thus, Palms West

Hospital did not comply with the provisions of section 766.316

for providing notice.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Dr. Pliskow provided notice as required by

section 766. 316 and that Palms West Hospital did not provide

notice as required by section 766.316.

It is further ORDERED that the parties are accorded 30 days

from the date of this Order to resolve, subject to approval of

the Administrative Law Judge, the amount and manner of payment of

an award to Petitioners; the reasonable expenses incurred in

connection with the filing of the claim, including reasonable

attorney's fees and costs; and the amount owing for expenses

previously incurred. If not resolved within such p eriod, 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.

It is further ORDERED that in the event Petitioners file an

elec tion of remedies declining or rejecting NICA benefits, this

case will be dismissed and DOAH's file will be closed.

DONE AND ORDERED this 21st day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAN D

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of June , 2013 .

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. 7012 3050 0001 0074 7850)

Bruce M. Ramsey, Esquire

Billing, Cochran, Lyles, Mauro

and Ramsey, P.A.

Suite 400

1601 Forum Place

West Palm Beach, Florida 33401

(Certified Mail No. 7012 3050 0001 0074 7867)

James Haliczer, Esquire

Haliczer, Petti s and Schwamm, P.A.

7th Floor

100 Southeast 3rd Avenue

Fort Lauderdale, Florida 33308

(Certified Mail No. 7012 3050 0001 0074 7874)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mai l No. 7012 3050 0001 0074 7881)

Nancy La Vista, Esquire

Clark, Fountain, La Vista, Prather

Keen and Littky - Rubin

2nd Floor

1919 North Flagler Drive

West Palm Beach, Florida 33407

(Certified Mail No. 7012 1010 0001 8357 7236)

Amie Rice, Investigation M anager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 1010 0001 8357 7243 )

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

272 7 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1010 0001 8357 7250 )

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant t o section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal

with the agency clerk of the Division of Administra tive Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).