14-005123N John Garrett Price And Mirande E. Price, Individually And On Behalf Of Aurora Price, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, August 17, 2016.

Summary: Notice provided by physician and hospital satisfied section 766.316, Florida Statutes. Final Order approving the Association's acceptance of the claim for compensation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN GARRETT PRICE AND MIRANDA

E. PRICE, INDIVIDUALLY AND ON

BEHALF OF AURORA PRICE, A MINOR,

Petitioners,

vs. Case No. 14 - 5123N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA,

Respondent,

and

UNIVERSITY OF FLORIDA BOARD OF

TRUSTEES AND SHANDS TEACHING

HOSPITAL AND CLINICS, INC.,

d/b/a UNIVERSITY OF FLORIDA

HEALTH SHANDS HOSPITAL,

Intervenors.

_______________________________/

FINAL ORDER

P ursuant to notice, a final hearing on the issue of notice

was held in this case on February 26, 2016, in Gainesville,

Florida, before W. David Watkins, an Administrative Law Judge of

the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitione r: Jack T. Cook, Esquire

Diez - Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

For Respondent: M. Mark Bajalia, Esquire

Bajalia Law

11512 Lake Mead Avenue, Suite 301

Jacksonville, Florida 32256

For Intervenors: Daniel J. DÓAlesio, Esquire

University of Florida J. Hillis Miller

Health Center Self - Insurance Program

Tower 1, 7th Floor

580 West 8th Street

Jacksonville, Florida 32 209

S. William Fuller, Jr., Esquire

Fuller, Mitchell, Hood & Ste ph ens, LLC

2565 Barrington Circle

Tallahassee, F lorida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether Intervenor s provided

notice as required by section 766.316, Florida Statutes, on

behalf of both the hospital , and the physicians and nurse

midwives , rendering ob stetrical services to Petitioner,

Miranda E. Price.

PRELIMINARY STATEMENT

On October 24, 2014, Petitioners, John Garrett Price and

Miranda E. Price, on behalf of and as parents and natural

guardians of Aurora Price (Aurora), a minor, filed a Petition

Under Protest Pursuant to Florida Statute Section 766.301 et

seq. (Petition) with DOAH.

The Petition provided that Shireen Madani Sims, M.D. was

the physician providing obstetric services at the birth of

Aurora, who was born at the University of Florida Healt h Shands

Hospital (Shands). DOAH served the Florida Birth - Related

Neurological Injury Compensation Association (Association or

NICA ) with a copy of the Petition on October 31, 2014. DOAH

served copies of the Petition on Dr. Sims on November 3, 2014 ,

and on Shands on November 19, 2014.

On November 24, 2014, Petitions to Intervene were filed by

the University of Florida Board of Trustees and by Shands

Teaching Hospital and Clinics, Inc., d/b/a University of Florida

Health Shands Hospital. Those Petitions to Intervene were

granted by Order dated December 9, 2014.

On August 27, 2015, Respondent filed a Motion for Summary

Final Order, alleging that Aurora sustained a birth - related

neurological injury as defined in section 766.302(2) , Florida

Statutes . On October 28, 2015, an Amended Partial Summary Final

Order was entered, finding that Aurora sustained a birth - related

neurological injury, which is compensable under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

Jurisdiction was re tained on the issues of notice and award.

The final hearing, which was scheduled for January 13,

2016, was continued and rescheduled for February 26, 2016.

On February 23, 2016, the parties filed a Pre - h earing

Stipulation and on February 24, 2016, filed an Amended Pre -

h earing Stipulation.

The f inal h earing was held on February 26, 2016. At the

final hearing, the Ðadmitted factsÑ in paragraph (e) of the

Amended Pre - h earing Stipulation were admitted into evidence.

Joint Exhibits A through I were offered in to evidence.

Petitioners objected, asserting lack of authenticity of the

documents in the Joint Exhibits that purportedly bore the

signature of Petitioner, Miranda E. Price ( Ms. Price or

patient) . The undersigned considered the Certificates of

Authenticit y (IntervenorsÓ Composite Hearing Exhibits 1 and 2,

also found in Joint Exhibits A052 and I001) and the testimony of

Marianne McGuinness - Gargano, the medical records custodian.

PetitionersÓ objection was overruled, and Joint Exhibits A

through I, includin g all of the documents bearing Ms. PriceÓs

signature, were admitted into ev idence. IntervenorsÓ Exhibit

D - 49 was also received in evidence.

In addition to Ms. McGuinness - Gargano, the following

witnesses were called at the f inal h earing: Ms. Price ; her

husband, John Garrett Price (Mr. Price) ; Shayla Campbell,

(Ms. Campbell) ; and Beverly Watson Littles, LPN (Nurse Littles).

The deposition testimony of Robin E. Cunningham, RN was offered

in lieu of her live testimony.

The Transcript of the final hearing w as filed by the court

reporter, as instructed, on March 16, 2016. The parties agreed

to file their proposed final orders within 30 days of the filing

of the transcript. Intervenors filed their Proposed Final Order

on April 14, 2016, and on April 15, 2016 , Respondent filed a

Notice of Joinder in IntervenorsÓ Proposed Final Order.

On May 13, 2016 , Petitioners filed a Motion for Extension

of Time to File Proposed Order and Recommendation, stating that

the attorneys of the firm representing Petition ers had been in

Ohio for a five - week trial, and had just returned to Florida on

May 12, 2016. The motion represented that counsel for

Petitioners had conferred with counsel for both Respondent and

Intervenors, and that neither party objected to the requested

exte nsion. The same day the motion for extension of time was

filed, the undersigned entered an O rder granting the extension

to May 20, 2016.

Petitioners filed a Joint Proposed Order and Recommendation

on May 23, 2016. Although PetitionersÓ P roposed O rder was

untimely filed, it has nonetheless been considered by the

undersigned in the preparation of this Final Order. On June 1,

2016, Intervenors filed a Joint Response and Exceptions to

PetitionersÓ Joint Proposed Order and Recommendation. Inasmuch

as this fi ling was neither authorized by rule, or by order of

the undersigned, it has not been considered in the preparation

of this Final Order.

FINDINGS OF FACT

1 . From approximately April 2008 through the delivery of

Aurora Price in May 2012, Ms. Price was emp loyed by the

University of Florida (U.F.) College of Pharmacy as an editor

and writer in the medicinal chemistry section where she wrote

and edited papers and grants, including academic scholarly

articles.

2 . By virtue of her education, training, and exp erience in

linguistics, editing, and grant writing and editing for

professional publications, her custom and habit was to pay close

attention to the written word and to read documents prior to

signing them.

3 . When Ms. Price believed that she may have be en

pregnant, she chose to have her prenatal care and delivery

performed by U.F. physicians and desired to have her infant born

at Shands, motivated by her having graduated from U.F. and by

her employment with U.F.

4 . During the course of her pregnancy, M s. Price received

her prenatal care at the U.F. Magnolia Park OB/GYN clinic

(prenatal clinic) in Gainesville.

5 . From her initial visit at the prenatal clinic on

September 21, 2011 , through the delivery of her daughter,

Aurora, Ms. Price knew that her pre natal care would be provided

by U.F. physicians and that her infant would be delivered by

U.F. physicians at Shands.

6 . The prenatal clinic changed its name, subsequent to the

prenatal care Ms. Price received , to U.F. Health WomenÓs

Clinic -- Springhill , and also changed its location.

7 . Ms. PriceÓs first visit to the prenatal clinic occurred

on September 21, 2011. During that visit , Ms. Price physically

received from the prenatal clinic check - in staff (unit clerk)

two NICA ÐPeace of MindÑ brochures (N ICA brochures) stapled to a

Notice to Obstetrics Patient form (NICA acknowledgment form).

8 . The NICA acknowledgment form contained a ÐUniversity of

Florida PhysiciansÑ identifier at the top left corner and in

pertinent part, relevant to the NICA notice issue , contained the

words:

PHYSICIAN NOTICE TO OBSTETRIC PATIENT

(See section 766.316, Florida Statutes)

I have been furnished information on behalf

of all University of Florida College of

Medicine Physicians and certified midwives

who practice obstetri cs or perform

obstetrics services, which has been prepared

by the Florida Birth - Related Neurological

Injury Compensation Association (NICA). I

have also been advised that the University

of Florida College of Medicine physicians

and certified midwives who practice

obstetrics or perform obstetric services are

participating physicians in that program,

wherein certain limited compensation is

available in the event certain neurological

injury may occur during labor, deliver, or

resuscitation. For specifics on the

program, I understand I may contact the

Florida Birth - Related Neurological Injury

Compensation Association (NICA), Post Office

Box 14567, Tallahassee, Florida 323117 - 4567,

1 - 800 - 398 - 2129. I specifically acknowledge

that I have received a copy of the b rochure

prepared by NICA.

HOSPITAL NOTICE TO OBSTETRIC PATIENT

(See section 766.316, Florida Statutes)

I have been furnished information prepared

by the Florida Birth - Related Neurological

Injury Compensation Association (NICA) on

behalf of Shands Teach ing Hospital and

Clinics, Inc., d/b/a Shands at the

University of Florida. For specifics on the

program, I understand I may contact the

Florida Birth - Related Neurological Injury

Compensation Association (NICA), Post Office

Box 14567, Tallahassee, Florida 32317 - 4567,

1 - 800 - 398 - 2129. I specifically acknowledge

that I have received a copy of the brochure

prepared by NICA.

9 . Additionally, Ms. Price physically received from the

unit clerk a genetic screening form, a U . F . Health Cystic

Fibrosis Screening for m, and a Healthy Start form.

10 . On this initial prenatal visit of September 21, 2011,

after Ms. Price finished her business with the unit clerk and

financial staff member, Mr. and Ms. Price met with Nurse Littles

between 20 and 45 minutes. Nurse Little s had worked at the

prenatal clinic in the same position since 2005.

11 . While at hearing , Nurse Littles did not have an

independent recollection of seeing the patient . S he did make

charting entries regarding the patientÓs visit.

12 . During the Price sÓ vis it of September 21, 2011,

Nurse Littles followed her customary and habitual routine that

was required by the prenatal clinic. In order to ensure that

the required routine was followed, Nurse Littles used a

checklist which has a section for circling ÐNICAÑ after Nurse

Littles confirmed that patients received the NICA brochure and

signed the NICA acknowledgment form.

13 . A summary of Nurse LittlesÓ customary and habitual

routine , required by the prenatal clinic , that she followed

(approximately 15 tim es per week since 2005) on Ms. PriceÓs

initial prenatal visit on September 21, 2011, included the

following steps which are relevant to the NICA notice issue:

• The patient gives to Nurse Littles the two NICA

Brochures stapled to the NICA acknowledgment form ,

as well as the Healthy Start, genetic testing, and

cystic fibrosis forms that the unit clerk provided

to the patient.

• Nurse Littles takes the patientÓs blood pressure,

height and weight, talks to the patient and takes

down the patientÓs health informati on, updates the

patientÓs records, and ensures that the patientÓs

records are in order and that the patient is

prepared for the first visit with the U.F. physician

or physicians who will be providing the patientÓs

obstetrical care.

• If the NICA acknowledg ment form was signed prior to

Nurse Littles having met the patient, Nurse Littles

will witness the patientÓs signatures in the section

pertaining to U.F. physicians and in the section

pertaining to Shands, after she explains the form.

She then affixes her signature in the two witness

places indicated under the notice provisions for

U.F. (physicians) and for Shands (Hospital). If the

NICA acknowledgment form was not signed prior to

Nurse Littles meeting with the patient, Nurse

Littles, after explaining the form, witnesses the

patientÓs signing the form and then signs her name

as witness in the sections for both the U.F.

(physicians) and Shands (Hospital).

• Nurse Littles advises the patient that the NICA

brochures attached to the NICA acknowledgment form

are given on behalf of the U.F. physicians who will

be providing obstetrical care for the patient, and

are also given on behalf of Shands.

• After witnessing the patientÓs signature, Nurse

Littles detaches the NICA brochures from the NICA

a c knowledgment form and gives the two brochures back

to the patient.

• Nurse Littles gives the patient a general

explanation that the NICA brochures contain

information that explain where the patient can go

for help if something unexpected happen s during the

birth of the child . She does not go into detail

regarding rights and limitations of the NICA plan.

She does not go into the legalities of the NICA

program .

• Nurse Littles advises all patients to read the NICA

brochure and tells the patient that if the patient

ha s more que stions to let her know.

• Nurse Littles advises the patient that the prenatal

clinic provides care for patients only if the

patient is to deliver her child at Shands.

• After completing the review of the documents and

conversation with the patient, Nurse Lit tles enters

an electronic note into the electronic medical

record concerning the intake visit. She also takes

several documents, including the NICA acknowledgment

form to the chart room in the clinic and places them

in a box designated for them to be scan ned into the

electronic record.

14 . Nurse LittlesÓ testimony regarding her customary and

habitual routine at the clinic is credible. Accordingly, the

undersigned finds that during Ms. PriceÓs visit to the prenatal

clinic on September 21, 2011, Nurse Litt les followed her

customary and habitual routine, required by the prenatal clinic.

15 . Pertinent to the NICA notice issue, the undersigned

finds that Nurse Littles, in accordance with her customary,

habitual, and routine practice, and as required by the pr enatal

clinic process, took from Ms. Price the NICA brochures attached

to the NICA acknowledgment form and witnessed Ms. PriceÓs

signature on the NICA acknowledgment form in the two places on

the form on behalf of U.F. physicians and Shands.

16 . The unde rsigned also finds that Nurse Littles advised

Ms. Price to read the NICA acknowledgment form prior to her

witnessing Ms. PriceÓs signature, and then removed the NICA

brochures from the form and returned them to Ms. Price.

17 . Nurse Littles credibly testi fied that she placed the

signed NICA acknowledgment form , along with the genetics forms ,

in the scanning box at the prenatal clinic for them to be

scanned. Inexplicably, the NICA acknowledgment form and genetic

form were not scanned into the e lectronic me dical record of

Ms. Price, and their whereabouts are unknown.

18 . Nurse Littles Ó testimony regarding the NICA

acknowledgement form is corroborated in her Progress Notes

relating to Ms. PriceÓs visit of September 21, 2011. Her

Progress Notes specifically reflect ÐHer NICA and

Genetics forms are scanned , Ñ indicating that Nurse Littles had

placed the forms in the scanning box to be scanned by other

employees. Again, it is unknown why these forms were not

electronically scanned.

19 . At the September 21, 2 011 , prenatal visit, Ms. Price

was also advised by Nurse Littles that she was being assigned to

Sharon Young Byun, M.D. (Dr. Byun) , for prenatal care. Nurse

Littles advised Ms. Price that the prenatal clinic only cared

for patients who se child would be de livered by the U.F. clinic

physicians at Shands.

20 . Ms. Price first met with Dr. Byun on September 29,

2011 , for a prenatal visit at the prenatal clinic. Dr. Byun at

all material times was a U . F . physician and a NICA participating

physician.

21 . On No vember 4, 2011, M s. Price presented to the

Parke Avenue Imaging Center, a Shands radiology facility, but

not on the Shands hospital grounds. She was there solely for

breast imaging because of an abnormality identified earlier.

She was not there for pregn ancy - related diagnostics, care, or

treatment. At this radiology appointment, Ms. Price was not

provided NICA brochures and did not sign a NICA acknowledgment

form. She did sign a Consent and Authorization form.

22 . On April 18, 2012, Ms. Price believed that her

membranes were leaking and presented to Shands for obstetrical

care.

23 . Ms. Campbell served as a unit clerk in the Labor and

Delivery department at Shands from approximately April or

May 2011 through April or May 2013. Ms. Campbell was on dut y

April 18, 2012 , when Ms. Price came to Shands for obstetrical

care.

24 . By virtue of her training and ShandsÓ required

practice, Ms. Campbell had a customary and habitual routine that

included the following steps to check in a labor and delivery

patient at Shands:

• Ms. Campbell signs in the patient and creates a

patient account by taking personal identification

and demographic information and verifies the

patientÓs identity with the patientÓs identification

document.

• Ms. Campbell assembles three documen ts on a

clipboard: the NICA brochure which is on top, the

C onsent and Authorization form beneath the brochure,

and finally the NICA acknowledgment form.

• Ms. Campbell goes over the NICA brochure with the

patient and advises the patient that the patient

w ill be asked to sign the NICA acknowledgment form

for the brochure . She advises that the NICA

brochure has information that explains what NICA

does if the baby suffers injury during the delivery.

She advises the patients of the telephone number on

the NI CA brochure which the patient can call if the

patient has questions. During this process, she

further advises and urges the patient to read the

brochure.

• Aft er discussing the brochure, Ms. Campbell goes

over the NICA acknowledgment form and again advises

and urges the patient to read the form. When the

patient indicates that they read the form, the

patient signs the form and Ms. Campbell witnesses

their signature in two places Î - one place for the

hospital notice and one place for the physician

notice. Sh e places her signature in the witness

spaces on the form. She advises the patient the

NICA acknowledgment form contains information

regarding the protections for the hospital and for

the physicians, if something happens to the infant

during its birth. Ms . Campbell next has the patient

read and sign the Consent and Authorization form,

which is a document with duplicate pages.

Ms. Campbell witnesses the signature by affixing her

signature or initial on the Consent and

Authorization form.

• The patient keeps the NICA brochure and a copy of

the Consent and Authorization form, but Ms. Campbell

retains the NICA acknowledgment form which is placed

into a folder and is given to the labor and delivery

nurse assigned to the patient.

25 . Ms. CampbellÓs testimony at h earing credibly

established that she followed her customary, habitual, and

routine practice when she provided documents, including a single

NICA brochure, a NICA acknowledgment form, and a Consent and

Authorization form to Ms. Price when she checked into the labor

and delivery area (referred to as the triage area) on April 18,

2012.

26 . Ms. Campbell urged and otherwise encouraged Ms. Price

to read the NICA brochure, NICA acknowledgment form, and Consent

and Authorization forms.

27 . The evidence establi s hed that on April 18, 2012,

Ms. Price signed the NICA ac knowledgment form in two places Î - the

hospital notice section and the physician notice section.

28 . Ms. Campbell witnessed both the NICA acknowledgment

form of April 18, 2012 , and the Consent and Aut horization form

of April 18, 2012, by affixing her signature in two places on

the NICA acknowledgment form (the Hospital and U.F. sections)

and by affixing her initials ÐSCÑ on the Consent and

Authorization form.

29 . The NICA acknowledgment form , which is signed by

Ms. Campbell in two places (Joint Exhibit D049) - Î one under the

hospital notice and one under the U . F . physician notice ,

contained the following language:

HOSPITAL NOTICE TO OBSTETRIC PATIENT

(See section 766.316, Florida Statutes)

I have been furnished information prepared

by the Florida Birth Related Neurological

Injury Compensation Association (NICA) on

behalf of Shands at the University of

Florida. For specifics on the program, I

understand I can contact the Florida Birth -

Related Neurologic al Injury Compensation

Association (NICA), Post Office Box 14567,

Tallahassee, Florida, 32317 - 4567, 1 - 800 - 398 -

2129. I specifically acknowledge that I

have received a copy of the brochure

prepared by NICA.

PHYSICIAN NOTICE TO OBSTETRIC PATIENT

(See secti on 766.316, Florida Statutes)

I have been furnished information prepared

by the Florida Birth - Related Neurological

Injury Compensation Association (NICA) on

behalf of ALL physicians and nurse midwives

including University of Florida College of

Medicine ph ysicians and nurse midwives , who

practice obstetrics or perform obstetric

services at this facility. I have also been

advised that the above physicians and nurse

midwives are participants in the NICA

program, and that limited compensation is

available in the event certain neurological

injury may occur during labor, delivery or

resuscitation. For specifics on the

program, I understand I can contact the

Florida Birth - Related Neurological Injury

Compensation Association (NICA), Post Office

Box 14567, Tallaha ssee, Florida, 32317 - 4567,

1 - 800 - 398 - 2129. I specifically acknowledge

that I have received a copy of the brochure

prepared by NICA.

30 . On April 18, 2012, after Ms. Campbell completed her

business with Ms. Price, she gave the labor and delivery

departmen t nurse, Robin Cunningham, RN (Nurse Cunningham), the

NICA acknowledgment form executed by Ms. Price and witnessed by

Ms. Campbell.

31 . Nurse Cunningham reviewed the NICA acknowledgment form

and checked off an entry into Ms. PriceÓs medical record that

r eads, ÐNICA Signature Obtained/On File,Ñ meaning that she

personally viewed the NICA acknowledgment form that was executed

by Ms. Price and witnessed by Ms. Campbell on April 18, 2012,

prior to checking off on the medical record entry.

32 . Nurse Cunningh am w as the nurse who discharged

Ms. Price from labor and delivery triage on April 18, 2012.

Nurse Cunningham witnessed Ms. PriceÓs signing the Outpatient

Obstetrical Information and Instruction sheet on April 18, 2012.

33 . On May 4, 2012, Ms. Price prese nted to Shands l abor

and d elivery triage for admission for delivery. At that time

Ms. Price signed a NICA acknowledgment form given to her by the

unit clerk. She signed it in two places - Î one under the hospital

notice on the form and one under the U.F. ph ysician notice on

the form. The language on the May 4, 2012 , NICA acknowledgment

form was the same as the language on the form signed by Ms.

Price on April 18, 2012.

34 . Ms. Price delivered h er infant, Aurora Price, on

May 5, 2012. The attending ph ysic ian at the delivery was

Dr. Sims, who is, and was at the time of AuroraÓs delivery, a

University of Florida NICA participating physician.

35 . The greater weight of the evidence established that on

September 21, 2011 ; April 18, 2012 ; and May 4, 2012, Inter venors

provided the notice required by section 7 66.316 on behalf of

Dr. Sims and Shands.

CONCLUSIONS OF LAW

36 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301 - 766.316, Fl a. Stat. (2016).

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

hearing is whether notice was provided pursuant to section

766.316, which provides:

Each hospital with a participating physician

on its staff and each participating

physician, othe r 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 - fau lt

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 partic ipating

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

med ical condition as defined in

s. 395.002(8)(b) or when notice is not

practicable.

38 . Section 395.002(8)(b) defines "emergency medical

condition" as follows:

(8) "Emergency medical condition" means:

* * *

(b) With respect 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 patien t or fetus;

or

3. There is evidence of the onset and

persistence of uterine contractions or

rupture of the membranes.

39 . 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

d eterminations.

40 . Petitioners contend that Dr. Sims and Shands did not

give sufficient notice pursuant to section 766.316. Intervenors

contend that sufficient notice w as provided pursuant to

section 766.316. As the proponent of the proposition that

ap propriate notice was given or that notice was not required,

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).

41 . Although Nurse Littles doe s not independently remember

her encounter with Ms. Price on September 21, 2011, she follows

her normal routine and practice when registering obstetrical

patients, which includes giving the brochure to the patient and

having the patient sign the acknowledg ment form. "Evidence of

the routine practice of an organization, whether corroborated or

not and regardless of the presence of eyewitnesses, is

admissible to prove the conduct of the organization on a

particular occasion was in confor mity with routine pra ctice."

§ 90.406, Fla. Stat. (2016); see also Tabb , 880 So. 2d at 1259.

Nurse LittlesÓ Progress Notes of September 21, 2011 further

corroborate the fact that Ms. Price was provided a NICA brochure

during that visit and that Ms. Price signed the acknowl edgment

form.

42 . Although Ms. Price denies or otherwise has no current

recollection of having been given a NICA brochure at any time

during her visits to Shands l abor and d elivery t riage on both

April 18, 2012, and May 4, 2012, her signatures on the NICA

acknowledgment forms dated April 18, 2012 , and May 4, 2012 ,

raise the statutory rebuttable presumption provided by s ection

766.316 that she not only received the NICA brochure provided to

her on those dates on behalf of both U.F. (physicians) and

Shands, but also that the notice requirements of s ection 766.316

were met by U.F. (physicians) and Shands. Based upon the

totality of the evidence admitted, the undersigned finds by a

preponderance of the evidence that the Petitioners have not

rebutted the statuto ry presumption.

43 . 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

obliga tion 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

should 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.

44 . Petitioners assert that if NICA brochures were not

provided to Ms. Price on the very first instance when she saw

Dr. Byun (September 29, 2011), U.F. (physicians) and Shands

would not b e in compliance with the NICA notice provisions i n

s ection 766.316. The undersigned finds that PetitionersÓ

position is unfounded. Although Florida courts use the

e stablishment of the physician - patient relationship as an

important consideration to determ ine compliance with the

statutory NICA notice provision, the date that the relationship

is formed merely triggers the starting point upon which to

determine if the NICA notice is given within a reasonable time

to conform to the NICA notice requirements. T he formation of

the physician - patient relationship does not establish a date

after which any NICA notice would be unreasonable per se.

Although the Fifth District Court of Appeal advised providers in

dicta to Ðfurnish the notice at the first opportunity a nd err on

the side of caution,Ñ the court did not establish a bright line

rule that the NICA notice must be given when the patient first

encounters her OB/GYN physician or first encounters the hospital

where the delivery takes place. Weeks v. Fla. Birth - R elated

Neuro. Injury Comp. AssÓn. , 977 So. 2d 616, 620 (Fla. 5th DCA

2008). The Fifth District Court of Appeal concluded: ÐIn

summary, we hold that the NICA n otice must be given within a

reasonable time after the provider - obstetrical relationship

begins . . . . Ñ (emphasis added), Id . at 619; see also Galen of

Florida v. Braniff , 696 So. 2d 308, 311 (Fla. 1997).

Additionally, the court went on to state that Ð[W]hen the

patient first becomes an Òobstetrical patient Ó of the provider

and what constitutes a Òr easonable timeÓ are issues of fact.Ñ

Weeks , 977 So. 2d at 620. The Weeks court noted that the

central consideration is whether the timing of the notice

provides the patient with a reasonable opportunity to make a

meaningful choice of selecting the NICA p articipating provider

or a provider who is not a NICA participant.

45 . The undersigned has found that the NICA brochures on

behalf of U . F . (physicians) and Shands were provided to Ms.

Price at her first prenatal intake visit at the prenatal clinic,

in adv ance of her seeing Dr. Byun for the first time. As reason

would dictate, even though Ms. Price did not first see a UF

physician until September 29, 2011, and did not present to

Shands for obstetrical care until April 18, 2012, it is not

unreasonable for t he NICA brochures to have been provided to her

on September 21, 2011, in advance of those events. Accordingly,

this Court finds that the NICA brochures provided to Ms. Price

on September 21, 2011 , on behalf of both U . F . (physicians) and

Shands , satisfied the requirements of s ection 766.316 .

46 . The undersigned further finds that had the NICA

brochure not been provided to Ms. Price on behalf of UF

(physicians) and Shands on September 21, 2011, the NICA n otice

provided to Ms. Price on behalf of U . F . (physic ians) and Shands

on April 18, 2012 , was also provided within a reasonable time

prior to the delivery of Ms. PriceÓs infant in light of all the

circumstances of this case, and thus satisfied the purpose of

the NICA notice requirements for U . F . (physicians) and Shands on

that date.

47 . Finally, PetitionersÓ contend that even if the NICA

brochures were given to Ms. Price during the September 21, 2011 ,

prenatal visit and during her p resentations at Shands on

April 18, 2012 , and May 4, 2012, the notice was defi cient

because the verbal explanations by Nurse Littles and Ms.

Campbell constituted an insufficient verbal explanation of

benefits and limitations on liability regarding the NICA p lan.

The undersigned finds that there is no requirement in

section 766.316 that the health care provider, the hospital, or

someone on their behalf verbally explain and counsel patients

about such matters regarding the NICA p lan. The Fifth District

Court of Appeal has held that the NICA brochure in and of itself

satisfies the sta tutory requirement of a "clear and concise

explanation of a patient's rights under the plan." Dianderas v.

Fla. Birth - Related Neurological , 973 So. 2d 523, 527 (Fla. 5th

DCA 2007), see also Jackson v. Florida Birth - Related

Neurological , 932 So. 2d 1125, 1 128 (Fla 5th DCA 2006). Any

other explanation from the healthcare providers, or from someone

on behalf of the healthcare providers, is unnecessary because

the NICA brochure provides an adequate explanation of the NICA

p lan benefits and limitations.

CONCL USION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. The claim for compensation filed by Petitioners, under

protest, as parents and natural guardians of Aurora Price, a

minor , is compensable and is APPROVED. 1/

2. Inte rvenors complied with the statutory Notice

requirements of the NICA p lan pursuant to s ection 766.316.

3. The p arties are accorded 45 days from the date of this

Order to resolve, subject to approval by the Administrative Law

Judge, the amount and manner o f payment of an award to the

parents, reasonable expenses incurred with the filing of the

claim, including reasonable attorneysÓ fees, and the amount

owing for expenses previously incurred and future expenses to be

incurred. If not resolved within such pe riod, the parties shall

advise the Administrative Law Judge, and a hearing will be

scheduled to address these remaining issues.

DONE AND ORDERED this 2 2nd day of June , 2016 , in

Tallahassee, Leon County, Florida.

S

W. DAVI D WATKINS

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 Admini strative Hearings

this 2 2nd day of June , 2016 .

ENDNOTE

1/ Compensability of the claim was previously found and

determined by this TribunalÓs Corrected Partial Final Summary

Order of October 7, 2015 .

COPIES FURNISHED:

(via certified mail)

Ken ney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7005 3110 0002 0289 9847)

Maria D. Tejedor, Esquire

Diez - Arguell es & Tejedor , P.A.

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7005 3110 0002 0289 9854)

Jack T. Cook, Esquire

Diez - Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7005 3110 000 2 0289 9861)

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7005 3110 0002 0289 9878)

Daniel Joseph D'Alesio, Esquire

University of Florida J Hillis Miller Health

Center Self - Insurance Program

Tower 1, 7th Floor

580 West 8th Street

Jacksonville, Florida 32209

(eServed)

(Certified Mail No. 7005 3110 0002 0289 9885)

S. William Fuller, Jr., Esquire

Fuller, Mitchell, Hood & Stephens, LLC

2565 Barrington Circle

Tallahassee, F lorida 32308

(eServed)

(Certified Mail No. 7005 3110 0002 0289 9892)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7005 3110 0002 0289 990 8)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7005 3110 0002 0289 9915)

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 to 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 a gency c lerk of the Division of Administrative

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 th e 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).