17-001830N Weslen Bastien, On Behalf Of And As Parent And Natural Guardian Of Taylor Joseph, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, February 27, 2018.

Summary: Hospital failed to provide timely notice as required by statute. The provision of notice when mother presented in active labor not adequate to invoke NICA protections.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WESLEN BASTIEN, on behalf of and

as parent and natural guardian

of TAYLOR JOSEPH, a minor,

Petitioner,

vs. Case No. 17 - 1830N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

BETHESDA HOSPITAL, INC.,

Intervenor.

_______________________________/

FINAL ORDER ON NOTICE

Pursuant to notice, a final hearing on the issue of notice

was held in this case on December 19, 2017, via video

teleconfer ence with sites in West Palm Beach and Tallahassee,

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

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert T. Bergin, Jr. , Esquire

Robert T. Berg in, Jr., P.A.

506 Datura Street, Suite B

West Palm Beach, Florida 33401

For Respondent: Constantina A. Mirabile, Esquire

Frank, Weinberg & Black, P.L.

Suite 1 00

1875 Northwest Corporate Boulevard

Boca Raton , Florida 33 431

For Intervenor Bethesda Hospital, Inc.:

Susanne Elizabeth Ri e dhammer, Esquire

William T. Viergeve r, Esquire

Sonneborn Rutter Cooney Viergever , P.A.

1400 Centrepark Boulevard, Suite 400

West Palm Beach, Florida 33401

For Intervenor Selva Ganesh, M.D. 1/ :

Traci L. Glickman, Esquire

Wicker , Smith , OÓHara , McCoy & Ford, P.A.

515 N orth Flagler Drive, Suite 1600

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUES

The issues in this case are wh ether Selva Ganesh, M.D.

(Dr. Ganesh) , and Bethesda Hospital, Inc. , provided appropriate

notice as required by section 766.316, Florida Statutes.

PRELIMINARY STATEMENT

On March 13, 2017, Petitioner, Weslen Bastien

(Ms. Bastien), individually and on behalf of Taylor Joseph

(Taylor), a minor, filed a Petition Pursuant to Florida Statute

Section 766.301 et seq. (Petition) with the Division of

Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injur y Compensation Plan (Plan). The Petition named Dr. Ganesh

as the physician who provided obstetric services at the birth of

Taylor on July 4, 2015, at Bethesda Hospital East (Bethesda), in

Boynton Beach, Florida.

DOAH served Respondent, Florida Birt h - Related Neurol o gical

Injury Compensation Association ( NICA ), with a copy of the

Petition on April 10, 2017. DOAH served Dr. Ganesh with a copy

of the Petition on March 28, 2017. DOAH served Bethesda with a

copy of the Petition on March 30, 2017.

O n April 14, 2017, a Motio n to Intervene was filed by

Dr. Ganesh. On April 17, 2017, an Order was entered granting

Dr. GaneshÓs Motion to Intervene. On May 10, 2017, Bethesda

filed a Motion to Intervene. On May 12, 2017, an Order was

entered granting Bet hesdaÓs Motion to Intervene.

On July 27, 2017, NICA filed a Motion for Partial Summary

Final Order on the issue of birth - related neurological injury.

Also on July 27, 2017, NICA fi led a Response to Order of

July 20, 2017, in which it was represented that:

Counsel for the Petitioners and Intervenors

have agreed that they do not need a hearing

on the issue of Compensability and that the

ALJ can enter an Interim Order finding the

Claim to be Compensable, reserving

jurisdiction to determine whether the no tice

requirements of section 766.316 were

satisfied and to determine the issue of an

award pursuant to section 766.31, if

necessary.

On September 15, 2017, a Partial Summary Final Order was

entered, finding that Taylor sustained a birth - related

neuro logical injury, which is compensable under the Plan.

Jurisdiction was retained on the issues of notice and award.

On December 12, 2017, the parties filed a Pre - h earing

Stipulation.

The final hearing was held on December 19, 2017.

Ms. Bastien te stified on her own behalf. In addition, the

deposition testimony of Monique Scholine, R.N. , and MacKenzie

Gleason, R.N. , were offered in lie u of their live testimony.

Ms. BastienÓs deposition transcript was also offered and

received in evidence. The Ðad mitted factsÑ in paragraph (e) of

the Amended Pre - h earing Stipulation were received in evidence,

as were Joint Exhibits J1 through J6.

At the conclusion of the hearing , the parties stipulated

that proposed final orders would be filed not later than 10 days

following the filing of the official transcript at DOAH. The

T ranscript was filed on January 16, 2018, and thereafter,

Petitioner and Intervenors timely filed proposed final orders,

which have been carefully considered in the preparation of this

Fin al Order.

On January 19, 2018 , the parties filed an ÐAgreed Order on

Whether Dr. GaneshÓs Failure to G ive NICA Notice was Excused Due

to PetitionerÓs Emergency Medical Condition . Ñ On January 25,

2018, an Order of Dismissal as to Intervenor Selva Gane sh, M.D. ,

was entered by the undersigned, dismissing PetitionerÓs NICA

claim as to Dr. Ganesh only.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following Findings of Fact are made 2/ :

1 . Weslen Bastien is the n atural parent of Taylor

Joseph.

2 . Selva Ganesh, M.D. is a licensed Florida physician in

the active practice of obstetrics and gynecology. At all times

material, Dr. Ganesh was a "participating physician" as defined

in s ection 766.302(7) , Florida Statut es (2017) . 3/ Under the

circumstances described in greater detail below, Dr. Ganesh

provided obstetrical services to Ms. Bastien in the course of

labor, delivery , and resuscitation in the immediately post -

delivery period of TaylorÓs birth.

3 . Prior to Tay lorÓs birth, Ms. Bastien received prenatal

care from a non - participating provider, Sam Wanis, M.D.

(Dr. Wanis). Dr. Wanis had staff privileges at Bethesda.

4 . On July 1, 2015, Dr. Wanis sent Ms. Bastien to

Bethesda for prenatal testing in the Labor and D elivery

Department. The professional relationship between Bethesda and

Ms. Bastien, relating to this pregnancy, began at that time.

5 . Ms. Bastien was scheduled for induction of labor on

July 5, 2015, a Booking Sheet was prepared, and she was

instructed to return the following day for additional testing.

The parties stipulated, and it is found, that Ms. Bastien was

not provided with NICA n otice, as contemplated by section

766.316, during the visit of July 1, 2015.

6 . On July 2, 2015, Ms. Bastien returne d to BethesdaÓs

Labor & Delivery Department for repeat testing. Discharge

i nstructions included: ÐReturn to L&D on Sunday 7/5 for

induction after NST on 7/4/15 at 5 pm." The parties stipulated,

and it is found, that once again, Ms. Bastien was not provi ded

with any form of NICA n otice as required by section 766.316.

7 . On July 4, 2015 , at about 6:45 a.m., Ms. Bastien

returned to Bethesda in active labor. The admission history

notes SROM (spontaneous rupture of membranes) on admission. She

was noted t o be six centimeters dilated and 70 percent effaced,

with evidence of the onset and persistence of uterine

contractions. Dr. Wanis was unavailable at the time of

Ms. BastienÓs presentation to Bethesda, and obstetrician ,

Dr. Ganesh , was called to prov ide o bstetrical services to

Ms. Bastien. The parties stipulated, a nd it is found, that

Ms. Bastien presented to Bethesda with an emergency medical

condition as there was evidence of the onset and persistence of

uterine contractions.

8 . The patient chart notes that Taylor was delivered by

Dr. Ganesh at 9:54 a.m. on July 4, 2015.

9 . The professional relationship between Dr. Ganesh and

Ms. Bastien , relating to this pregnancy , began when Ms. Bastien

presented to Bethesda in an emergency medical condition as she

h ad evidence of the onset and persistence of uterine

contractions. The only care and treatment Dr. Ganesh provided

to Ms. Bastien was during the emergency medical condition noted

above.

10 . Dr. Ganesh did not provide NICA n otice to Ms. Bastien

on July 4, 2 015. However, the parties stipulated, and it is

found, that he was excused from providing NICA n otice on July 4,

2015 , as Ms. Bastien presented in an emergency medical condition

due to the onset and persistence of uterine contractions.

11 . Bethesda conte nds that based on the medical records

and the testimony of Bethesda employees, NICA n otice was

provided to Ms. Bastien on July 4, 2015. However, it is

Bethesda's position that because Petitioner testified that she

would have continued to treat at Bethesda even if she had

received the notice earlier, whether or not notice was provided

on the July 4, 20 15 , is irrelevant. However, Petitioner notes

that Bethesda has not produced a signed form acknowledging

receipt of NICA n otice by Ms. Bastien. Rather, the o nly

documentation of any notice is on a Medical Record Report, under

Admit Hx L&D, there is a "Yes" next to the question "NICA Notice

Given?" The adequacy of the n otice is not documented.

Ms. Bastien denies receiving any form of NICA n otice on July 4,

20 15.

12 . As noted, the parties stipulated that Ms. Bastien

presented to Bethesda on July 4, 2015 , in an emergency medical

condition. Accordingly, it is unnecessary to resolve the

question of whether NICA n otice was provided on July 4, 2015,

since even had it been given on that date, it would have been

untimely.

CONCLUSIONS OF LAW

13 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. 2/

14 . 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, 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 neur ological

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 t he 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

p atient when the patient has an emergency

med ical condition as defined in

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

practicable.

1 5. 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 patient or fetus;

or

3. There is evidence of the onset and

persistence of uterine contractions or

rupture of the membranes.

1 6. 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.

17 . As the proponents of the proposi tion that appropriate

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).

18 . Based upon the stipulation noted above, Dr. Ganesh was

excused from providing NICA n otice as Ms. Bastien had an

emergency medical condition when she entered Dr. GaneshÓs care. 4/

19 . The Florida Supreme Court has made clear that Section

766.316 requires both participati ng physicians and hospitals

with participating physicians on staff to provide obstetrical

patients with notice of their rights and limitations under the

plan. Fla . Birth - Related Neurological Injury Comp. Ass'n v.

Dep't of Admin. Hearings , 29 So. 3d 992, 9 98 (Fla. 2010).

20 . 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 S o. 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.

21 . Bethesda asserts that Ms. Bastien was provided NICA

n otice upon her presentation to Bethesda on July 4, 2015.

However, even if true, at the time she was given the notice, she

was in labor. By definition, she had an emergency medical

condition. § 766.302(8)(b)3, Fla. Stat. It was too late at

that time for Bethesda to give notice pursuant to section

766.316 when it had an opportunity prior to Ms. Bas tienÓs

admission on July 4, 2015 , to provide notice.

22 . The court in Weeks held:

[T]he NICA notice must be given within a

reasonable time after the provider -

obstetrical relationship begins, unless the

occasion of the commencement of the

relationship involves a patient who presents

in an "emergency medical condition," as

defined by the statute, or unless the

provision of notice is otherwise "not

practicable." When the patient first

becomes an "obstetrical patient" of the

provider and what constitutes a "reasonable

time" are issues of fact . As a result,

conclusions might vary, even where similar

situations are presented. For this reason,

a prudent provider should furnish the notice

at the first opportunity and err on the side

of caution.

Id. at 619 - 620.

23 . As discussed above, it is undisputed that Bethesda did

not give Ms. Bastien NICA n otice on July 1, 2015 , or July 2,

2015, even though it was practicable to do so. It is also

undisputed that even if Bethesda did give Ms. Bastien NICA

n otice on July 4, 2015, such notice was not suff icient to meet

the notice obligation under the statute because it was not given

before an emergency medical condition arose. See Weeks , 977

So. 2d at 616 (concluding that notice must be given within a

reasonable time after the commencement of the relation ship and

that the failure to do so is not excused by a subsequent

emergency).

24 . Based upon the above findings, Bethesda did not

provide NICA n otice to Ms. Bastien in accordance with s ection

766.316.

25 . At hearing, Bethesda argued that it should be exc used

for failing to provide NICA n otice because Ms. Bastien testified

in a deposition that even if she had received the NICA n otice on

July 1 or 2, 2015, she would have continued to be treated at

Bethesda. For the reasons set forth below, this argument is

rejected as irrelevant .

26 . Section 766.316 requires hospitals and participating

physicians to give notice of their participation in NICA as a

condition precedent to the providersÓ invoking NICA as the

patientÓs exclusive remedy. See Galen of Fla . , Inc . v. Braniff ,

696 So. 2d 308, 309 (Fla. 1997). Nothing in the statute allows

for waiver of this condition precedent based upon the

introduction of evidence as to what the patient would have done

had she been given proper notice. What a patient would or w ould

not have done is simply not relevant to the issue of whether a

hospital met its condition precedent of providing notice in

accordance with s ection 766.316. This tribunal does not have

the authority to construe an unambiguous statute in a way that

ext ends its express terms. See , e.g. , Fla . Carry, Inc. v. U niv.

of N. F la. , 133 So. 3d 966, 971 (Fla. 1st DCA 2013); Jeffrey A.

Hunt, D.O., P.A. v. Huppman , 28 So. 3d 989, 992 (Fla. 2d DCA

2010); see also Levine v. Dade Cnty . Sch. Bd. , 442 So. 2d 210,

213 (F la. 1983) (consideration of the efficacy of or need for

the notice requirement is a matter wholly within the legislative

domain).

27 . This conclusion is supported by case law in which

arguments similar to BethesdaÓs were rejected. For instance, in

B oar d of Regents v. Athey , 694 So. 2d 46 (Fla. 1st DCA 1997),

approved sub nom. Univ ersity Med ical C enter , Inc. v. Athey , 699

So. 2d 1350 (Fla. 1997), the health care providers argued that

they had no opportunity to provide NICA n otice pursuant to the

Act. They claimed that no Ðinformed choiceÑ by the patient s was

possible because the patients were Medicaid recipients and there

were no other facilities in the county accepting Medicaid. The

First District Court of Appeal found this argument to be

meritless. The court determined that accepting the providersÓ

argument would, inter alia , Ðencourage uncertainty . . . by

permitting health care providers to Òignore the notice

requirement and then assert the NICA exclusivity to defeat a

civil action . ÓÑ Id . at 50.

28 . Additionally, in Athey , the court held that Ðhealth

care providers who have a reasonable opportunity to give notice

and fail to give predelivery notice under Section 766.316, will

lose their NICA exclusivity regardless of whether the

circumstances preclud ed the patient making an effective choice

of provider at the time the notice was provided.Ñ Id . at 50 - 51.

Finally, the court concluded that Ð[h]aving failed to take

advantage of a reasonable opportunity to provide predelivery

notice, a health care provid er will not be heard to complain

that notice, if given, would have been ineffective.Ñ Id . at 51.

29 . The undersigned finds the c ourtÓs decision in Athey to

be controlling here. Underlying that case was a claim by the

provider that NICA n otice was not ne cessary under the

circumstances because the patient was going to deliver at the

facility regardless of whether timely NICA n otice had been

given. As in Athey , accepting BethesdaÓs argument would

encourage uncertainty by allowing Bethesda to Ðignore the no tice

requirement and then assert the NICA exclusivity to defeatÑ this

action. Id . at 50. The NICA Act establishes a bright line rule

requiring providers to give predelivery notice, except in

circumstances not relevant here, in order to claim NICA

exclusi vity. The undersigned cannot and will not accept

BethesdaÓs invitation to create a caveat to that clear

legislative mandate.

30 . Ms. Bastien became an obstetrical patient of Bethesda

well before her delivery, thus triggering the obligation to

furnish he r with the notice within a reasonable time, which was

not excused by the subsequent emergency (presenting in labor to

delivery her baby).

31 . By July 4, 2015, Ms. Bastien did not have sufficient

time to make an informed choice on whether to use a

particip ating health care provider prior to delivery, as she was

in labor. The hospital had two opportunities to provide notice

to Ms. Bastien prior to her presenting for delivery, but did not

do so. Thus, even if notice was provided by Bethesda on July 4,

2015, it was insufficient to meet the requirements of section

766.316.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. Bethesda failed to provide notice for the hospital in

compliance with section 766.316.

2. 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

Petitioner; the reasonable expenses incurred in connection with

the filing of the cla im, including reasonable attorney's fees

and costs; and the amount owing for expenses previously

incurred. If not resolved within such 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.

3. In the event Petitioner files an election of remedies

declining or rejecting NICA benefits, this case will be

dismissed with prejudice and DOAH's file will be closed.

DONE AND ORD ERED this 16th day of February , 2018 , in

Tallahassee, Leon County, Florida.

S

W. DAVID 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 Administrative Hearings

this 16th day of February , 2018 .

ENDNOTE S

1/ On January 25, 2018, an Order of Dismissal as to Intervenor

Selva Gan esh, M.D. was entered by the undersigned, dismissing

PetitionerÓs NICA claim as to Dr. Ganesh.

2/ The undersigned notes that the dispositive facts are not in

dispute.

3/ Unless otherwise noted, all statutory references are to the

2017 version of the Fl orida Statutes.

4/ See Endnote 1.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Cert ified Mail No. 7016 0910 0001 7987 6688)

Robert T. Bergin, Jr., Esquire

Robert T. Bergin, Jr., P.A.

506 Datura Street, Suite B

West Palm Beach, Florida 33401

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6695)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6701)

Const ant ina A. Mirabile, Esquire

Frank, Weinberg & Black, P.L.

Suite 100

1875 Northwest Corporate Boulevard

Boca Raton, Florida 334 31

(Certified Mail No. 7016 0910 0001 7987 6718)

Susanne Elizabeth Riedhammer, Esquire

Sonneborn Rutter Cooney Vierge v er, P.A.

Suite 400

1400 Centrepark Boulevard

West Palm Beach, Florida 33401

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6725)

Wi lliam T. Viergever, Esquire

Sonneborn Rutter Cooney Vierge v er, P.A.

Suite 400

1400 Centrepark Boulevard

West Palm Beach, Florida 33401

(Certified Mail No. 7016 0910 0001 7987 6732)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Heal th

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7016 0910 0001 7987 6749)

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 3 2308

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6756)

Traci L. Glickman, Esquire

Wicker, Smith, OÓHara, McCoy & Ford, P.A.

Suite 1600

515 North Flagler Drive

West Palm Beach, Florida 33401

(eServed)

(Certified Mail No. 7016 0910 0001 7987 6763)

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 Appell ate 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 filin g 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).