17-006497N Neil Hays And Courtney Hays, As Co-Personal Representatives Of The Estate Of Cian Hays, Their Deceased Minor Son vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, April 26, 2019.

Summary: Neither physician nor hospital provided reasonable notice of their participation in NICA as required by section 766.316.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NEIL HAYS AND COURTNEY HAYS, as

CO - PERSONAL REPRESENTATIVES of

the Estate of CIAN HAYS, their

deceased minor son,

Petitioners,

vs. Case No. 17 - 6497N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCI ATION,

Respondent,

and

HOLMES REGIONAL MEDICAL CENTER,

INC.; MARK S. MCTAMMANY, M.D.;

AND MEDICAL ASSOCIATES OF

BREVARD, LLC,

Intervenors.

_______________________________/

FINAL ORDER

A final hearing was held in t his matter before W. David

Watkins, a duly - appointed Administrative Law Judge (ALJ) of the

Division of Administrative Hearings (DOAH), on October 18, 2018,

and January 11, 2019, via video teleconference with sites in

Sebastian and Tallahassee, Florida.

APPEARANCES

For Petitioners: Rosalyn S. Baker - Barnes, Esquire

J ordan A. Dulcie, Esquire

Searcy, Denney, Scarola, Barnhart and

Shipley, P.A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

For Respondent: Leanne B. Wagne r, Esquire

Frank, Weinberg and Black, P . L .

7805 S outhwest 6th Court

Plantation, Florida 33324

For Intervenor, Holmes Regional Medical Center, Inc.:

Mary Jaye Hall, Esquire

Stacey J. Carlisle, Esquire

McEwan, Martinez, Dukes & Hall, P.A .

108 East Central Boulevard

Post Office Box 753

Orlando, Florida 3280 2

For Intervenors, Mark S. McTammany, M.D. ; and Medical

Associates of Brevard, LLC:

Richards H. Ford, Esquire

Patrick L. Mixson, Esquire

Wicker Smith O'Hara McCoy & Ford, P.A.

390 North Orange Ave nue , Suite 1000

Orlando, Florida 32801

STATEMENT OF THE ISSUES

For purposes of determining compensability, the issues are

whether the injury claimed is a birth - related neurological

injury and whether obstetrical servi ces were delivered by a

participating physician in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the

hospital ; and

Whether notice was accorded the patient, as contemplated by

section 766.316, Florida Statutes (201 8) .

PRELIMINARY STATEMENT

On November 29, 2017, Petitioners, Neil Hays and Courtney

Hays, as Co - Personal Representatives of the Estate of Cian Hays

(Cian), their deceased minor son, filed a Petition for

Determination of Availability of NICA Coverage (Petit ion)

pursuant to section 766.301, et . seq ., Florida Statutes. The

Petition named Mark S. McTammany, M.D. (Dr. McTammany) , as a

physician providing obstetric services at the birth of Cian, at

Holmes Regional Medical Center, Inc. (HRMC). On December 6,

201 7, DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the Petition.

Dr. McTammany, his associated medical group, Medical Associates

of Brevard, LLC (Medical Associates), and HRMC were likewise

served w ith a copy of the Petition. On January 30, 2018, HRMC

filed a Motion to Intervene, which was granted by Order dated

February 9, 2018. On February 6, 2018, Dr. McTammany and

Medical Associates filed a Motion to Intervene, which was

granted by Order dated February 21, 2018.

On March 22, 2018, a Notice of Hearing by Video

Teleconference set a final hea ring for this matter on

October 18, 2018. On March 23, 2018, NICA filed a Motion for

Partial Summary Judgment on the issue of compensability.

Through its Mo tion, NICA requested entry of a partial summary

final order determining the claim is compensable under the

Neurological Injury Compensation Association Plan (NICA Plan),

as a matter of law. On April 6, 2018, Petitioners filed a

Response, requesting the AL J defer ruling or deny the Motion

without prejudice, to allow time for discovery. On May 15,

2018, the undersigned issued an Order denying the Motion,

without prejudice to be re - filed following the conclusion of

discovery.

On September 24, 2018, NICA fil ed a Renewed Motion for

Partial Summary Final Order , on the issue of compensability. On

September 27, 2018, Petitioners filed a Response to RespondentÓs

Renewed Motion (Renewed Motion) , indicating no objection Ðonly

as it relates to whether Cian Hays suff ered a birth - related

neurological injury.Ñ On October 11, 2018, the parties filed a

Joint Pre - h earing Stipulation, stipulating that ÐCian Hays

suffered a birth - related neurological injury.Ñ

The final hearing took place on October 18, 2018, but did

not con clude. On November 16, 2018, a Notice of Hearing by

Video Teleconference set a continuation of the final hearing on

January 11, 2019. The continuation of the final hearing took

place on January 11, 2019, and concluded on that day.

At the final hearing, P etitioners called Courtney Hays and

Neil Hays as live witnesses, and presented excerpts of the

videotaped depositions of Dr. McT ammany; Mary Hill; Rhea

Delyea, RN; Heather Llorente, RN; Megan McClain, RN; Verla

McFadden, RN; Colleen Shear, RN; and Diana Gr azier, RN.

Intervenor, HRMC, called Ms. Grazier as a live witness.

Intervenors, Dr. McTammany and Medical Associates, called

Dr. McTammany and Ms. Hill as live witnesses. Petitioner s Ó

Ex hibits P - 1 through P - 5 were received in evidence.

Intervenors, Dr. McTammany and Medical AssociatesÓ Exhibits M - 1,

M - 7, M - 22, and M - 23 were received in evidenc e. Intervenor,

HRMCÓs Exhibits 1 and 2 were received in evidence. NICA did not

present witnesses or offer any exhibits.

On February 5, 2019, the official T ransc ript ( V olumes I

through III) of the final hearing was filed. Thereafter, all

parties, with the exception of NICA, filed Proposed Final

Orders, each of which has been carefully considered in the

preparation of this Final Order.

All references to Florida St atutes are to the 2018 version

unless indicated otherwise.

FINDINGS OF FACT

Based upon the partiesÓ stipulations, the demeanor and

credibility of the witnesses, other evidence presented at the

final hearing, and on the entire record of this proceeding, the

following Findings of Fact are made:

1 . Neil Hays and Courtney Hays are the natural parents of

Cian Hays, deceased.

2 . Cian was born at HRMC, a licensed Florida hospital, in

Melbourne, Florida, on September 25, 2015.

3 . The physician providing obstetri cal services at CianÓs

birth was Mark S. McTammany, M.D., a licensed Florida physician

in the active practice of obstetrics and gynecology. At all

times material, Dr. McTammany was a "participating physician" as

defined in section 766.302(7). Under the c ircumstances

described in greater detail below, Dr. McTammany provided

obstetrical services to Mrs. Hays in the course of labor,

delivery, and resuscitation in the immediately post - delivery

period of CianÓs birth.

4 . The circumstances of the labor, delive ry, and birth of

Cian are reflected in the medical records of HRMC submitted with

the Petition, and admitted into evidence as Petitioner s Ó

Exhibit P - 5.

Compensability of the Claim

5 . NICA retained Donald Willis, M.D. (Dr. Willis) , as its

medical expert s pecializing in maternal - fetal medicine and

pediatric neurology. Upon examination of the pertinent medical

records, Dr. Willis opined:

In summary, uterine rupture occurred during

an attempted vaginal birth after two prior

Cesarean section deliveries. The uterine

rupture caused placental abruption. The

baby was depressed at birth and never

stabilized. Neurologic status continued to

deteriorate with MRI and EEGÓs consistent

with HIE. Life support was withdrawn due to

cerebral silence by EEG. Death occurr ed

24 days after birth. Autopsy identified

both significant injury to the brain and

spinal cord related to oxygen deprivation.

Dr. WillisÓ s medical report is attached to his affidavit. His

Affidavit reflects his ultimate opinion that:

There was an obste trical event that resulted

in loss of oxygen to the babyÓs brain and

spinal cord during labor, delivery and

continuing into the immediate post delivery

period. The oxygen deprivation resulted in

severe brain and spinal cord injury,

resulting in death.

6 . No expert opinions were filed that are contrary to the

opinion of Dr. Willis. Additionally, no objection to his

testimony was filed by any party; rather, the parties stipulated

that Cian suffered a birth - related neurological injury. The

opinion of Dr. Willis that Cian did suffer an obstetrical event

that resulted in loss of oxygen to the babyÓs brain and spinal

cord during labor, delivery, and continuing into the immediate

post - delivery period, which resulted in severe brain and spinal

cord injury, and ultimately in death, is credited.

Dr. McTammany and Medical AssociatesÓ Compliance with NICA

Notice Requirements

7 . Prior to CianÓs birth, Mrs. Hays received prenatal care

from Dr. McTammany, beginning on August 4, 2015. Dr. McTammany

had staff privileg es at HRMC , and it is undisputed that HRMC is

the only hospital at which Dr. McTammany delivered babies in

2015.

8 . The professional relationship between Dr. McTammany and

Mrs. Hays, relating to this pregnancy, began when Mrs. Hays

presented to Dr. McTamm anyÓs office for her first obstetrical

visit on August 4, 2015. Mrs. Hays was at that time 32 weeks

pregnant.

9 . Mrs. Hays testified that she recalled this first visit

with Dr. McTammany. She described the office building, the

waiting area, and examinat ion rooms, and she recalled the events

that occurred at the first visit, including being taken back by

the intake nurse, being weighed , giving a urine sample, and

being taken to an examination room. She recalled discussing her

birth plan with Dr. McTamman y, which included Dr. McTammanyÓs

assurances that he could safely perform a vaginal delivery after

caesarian section (VBAC) after Mrs. HaysÓ two previous caesarean

sections. Mrs. Hays testified that she was advised at this

visit that Dr. McTammany only de livered at HRMC, and that while

she did not recall pre - registering at the hospital, it was her

understanding that Dr. McTammanyÓs office would schedule her

delivery at HRMC. Mrs. Hays unequivocally testified that she

was not given any notice of Dr. McTamm anyÓs participation in

NICA, and that she did not sign any form, nor did she receive

any brochure regarding NICA.

10 . Mary Hill (Ms. Hill) was a medical assistant in

Dr. McTammanyÓs office on August 4, 2015. When a patient such

as Mrs. Hays presented for their first obstetrical visit to the

practice, Ms. Hill was responsible for providing the patient

with the NICA notice form and brochure, ensuring that the

patient signed the form, witnessing the form with her signature

as the person in the practice that provided notice and placing

the form into a box at the office to be scanned into the

patientÓs medical chart. Ms. Hill also testified that the

electronic medical record system allowed her to check a box in

the patientÓs electronic chart confirming that NI CA notice was

provided, that automatically populated into the medical record.

11 . Ms. Hill had no recollection of Mrs. Hays, or any of

the details of her interaction with her. Ms. Hill testified

that based upon her review of the medical chart, she was th e

medical assistant responsible fo r providing NICA notice to

Mrs. Hays, although she has no memory of doing s o.

12 . Although Ms. Hill testified that it was her custom and

practice to provide the patient with the form to sign along with

the brochure, leave the room, and then return to witness the

document, and that she would have followed this practice with

Mrs. Hays , Dr. McTammany has not produced any signed, witnessed

NICA notice form, and no such form is scanned into Mrs. Hays Ó

medical chart. Further, a lthough Ms. Hill testified that she

would have checked the NICA box in Mrs. Hay s Ó electronic medical

record, there are no references to NICA in Mrs. HaysÓ medical

chart, and no documentation confirming that notice was provided.

13 . Ms. Hill admitted that the medical records did confirm

that in other areas of Mrs. Hays Ó chart on that visit, where she

checked an automated box in the electronic record, such as

references to fetal movement, vitamins , and patient

instructions, that information automatically pop ulated and

appeared in Mrs. HaysÓ final written record. Importantly,

nothing relating to NICA auto - populated in Mrs. HaysÓ electronic

record.

14 . Dr. McTammany admits that he personally did not

provide NICA notice to Mrs. Hays at any time, but testified that

his office policy required his staff members to ensure that the

signed, witnessed NICA notice form was scanned into the

patientÓs chart. Although it would have been practicable to do

so either through a narrative entry or checking the preset NICA

che ckbox in the electronic medical chart, neither Dr. McTammany

nor Ms. Hill made any entries in Mrs. HaysÓ medical chart

confirming that NICA notice was provided.

15 . On direct examination, Dr. McTammany testified that he

was unsure whether the NICA checkbo x translated to the patientÓs

written medical record. How ever, on cross - examination,

Dr. McTammany admitted to the following:

Q: You mentioned in some of your earlier

testimony about these checkboxes that can be

checked regarding the Î providing NICA

not ice to your patients. Do you remember

that?

A: Yes.

Q: Is there anything preventing you or

anyone in your staff from entering verbal

sentences or typing in sentences, ÐI

provided NICA brochure or consent to the

patient?Ñ

A: Nothing preventing that, but it usually

would be the checkbox that would translate

to the written document.

Q: Again, thereÓs nothing in your record

that reflects a checkbox that stated you

provided NICA notice, isnÓt that correct?

A: Correct. (T., P.364, L2 - 16)

16 . Notably , although Ms. Hill testified as to her custom

and practice of providing NICA notice to every patient, the

greater weight of the evidence compels the conclusion that the

custom and practice was not followed here, where there is no

scanned form, no checked NICA box , and no reference at all in

Mrs. HaysÓ medical chart to NICA. The undersigned further notes

Ms. HillÓs testimony that she was responsible for 55 - 60 patients

per day, five days per week, and had no specific recall of

Mrs. Hays or any interaction w ith her. Finally, when asked

whether she could provide any explanation as to why, if in fact

the custom and practice was followed, no NICA notice form was

scanned into Mr. Hays Ó chart, Ms. Hill could not provide any

explanation.

17 . Conversely, the under signed finds Mrs. HaysÓ testimony

to be credible and consistent with the medical records of

Dr. McTammany, which do not contain a NICA notice form or any

reference to NICA at all. Mrs. Hays did recall her first visit,

was able to give details about the of fice, as well as her

interaction with both the nurse and Dr. McTammany. Accordingly,

the undersigned finds that Dr. McTammany did not provide NICA

notice to Mrs. Hays.

HRMCÓs Compliance with NICA Notice Requirements

The August 30, 2015 Visit

18 . On Aug ust 30, 2015, Mrs. Hays presented to HRMC with

concerns that she might be in labor. Her medical record from

this visit reflects that she was 36 weeks pregnant, and

reporting contractions and 10/10 pain. After a brief (non -

physician) evaluation in the HRM C emergency room, Mrs. Hays was

transferred to the labor and delivery unit, where she was seen

and treated in the obstetrical outpatient unit. The Obstetrical

Outpatient Evaluation Record for this visit reflects ÐlaborÑ as

the stated reason for the visit, and the admitting diagnosis is

ÐRO (rule out) labor . Ñ Mrs. Hays was required to register

before receiving treatment, and in fact signed consent to

treatment paperwork, advance directive paperwork, provided

demographical information, insurance information , and her

medical history. Mrs. Hays advised the staff that her

obstetrician was Dr. McTammany and that she intended to deliver

her baby at HRMC, as that was the only hospital at which he

delivered babies.

19 . During this visit Mrs. Hays was taken to an

examination room and connected to monitors to evaluate both her

contractions and the babyÓs vital signs. She was documented to

have mild contractions, she was administered Demerol for pain,

phenergan for nausea, and IV fluids for hydration. She was

exam ined by an on - call obstetrician, Dr. Duke, who determined

that she was not in labor. The undersigned finds that the

August 30, 2015 , visit was related to Mrs. Hays Ó pregnancy, and

as such, the professional rel ationship between HRMC and

Mrs. Hays, relating to this pregnancy, began at that time.

20 . Following a determination that she was not in labor,

Mrs. Hays was discharged with instructions to return to HRMC if

her contraction pattern became more frequent, or if her water

broke. The NICA notice forms a nd brochures are kept on the

labor and delivery floor where Mrs. Hays received treatment. It

is undisputed, and the undersigned finds, that Mrs. Hays was not

provided with NICA notice, as contemplated by section 766.316,

during the visit of August 30, 201 5, although it would have been

practicable to do so.

The September 6, 2015 Visit

21 . On September 6, 2015, Mrs. Hays presented directly to

HRMCÓs Labor & Delivery unit, reporting nausea and vomiting, and

concerns that she may be in labor. Mrs. Hays was again seen and

treated in the obstetrical outpatient unit. She was required to

register before receiving treatment, and in fact signed consent

to treatment paperwork, advance directive paperwork, and

provided demographical information, insurance informat ion, and

her medical history. Mrs. Hays again advised the staff that her

obstetrician was Dr. McTammany and that she intended to deliver

her baby at HRMC, as that was the only hospital at which he

delivered babies. Mrs. Hays was noted to be 37 weeks preg nant

at this time.

22 . Mrs. Hays was taken to an examination room where she

was connected to monitors to evaluate both her contractions and

the babyÓs vital signs. She was documented to have irregular

contractions. Dr. McTammany was contacted by the nu rsing staff,

and shortly thereafter, arrived at HRMC and personally examined

Mrs. Hays in the labor and delivery department. The undersigned

finds that on September 6, 2015, Mrs. Hays again had a

professional relationship with HRMC relating to this pregna ncy.

23 . Following a determination that she was not in labor,

Mrs. Hays was again discharged with instructions to return to

HRMC if her contraction pattern became more frequent or if her

water broke. It is undisputed , and the undersigned finds , that

Mrs . Hays was not provided with any form of NICA notice, as

required by section 766.316, during the visit of September 6,

2015, although it would have been practicable to do so.

The September 24, 2015 Visit

24 . On September 24, 2015, at 1:14 p.m., Dr. McTam many

submitted electronic Orders to HRMC, scheduling Mrs. Hays for a

cesarean section at HRMC on September 28, 2015, if she did not

deliver sooner.

25 . On September 24, 2015, at approximately 9:31 p.m.,

Mrs. Hays again presented directly to HRMCÓs labor a nd delivery

unit, with concerns that she might be in labor. She advised the

nurse that she was having contractions, and the admission record

documents her as being 40.1 weeks pregnant. Mrs. Hays was again

seen and treated in the obstetrical outpatient un it. She was

required to register before receiving treatment, and in fact

signed consent to treatment paperwork, advance directive

paperwork, and provided demographical information, insurance

information, and her medical history. Mrs. Hays again advised

t he staff that her obstetrician was Dr. McTammany and that she

intended to deliver her baby at HRMC, as that was the only

hospital at which he delivered babies.

26 . Mrs. Hays was taken to an examination room where she

was connected to monitors to evaluate both her contractions and

the babyÓs vital signs. She was documented to have mild to

moderate contractions, every 9.5 minutes, and noted to be in

severe pain. Her cervix was closed and her water had not yet

broken. Dr. McTammany was contacted by telepho ne and advised of

Mrs. HaysÓ status, whereupon he gave orders for her treatment .

27 . Following a determination that she was not in labor,

Mrs. Hays was discharged at approximately 1:00 a.m. on

Se ptember 25, 2015, with instructions to return to HRMC when her

contractions became stronger or if her water broke. It is

undisputed , and the undersigned finds , that Mrs. Hays was not

provided with NICA notice, as contemplated by section 766.316,

during the visit of September 24, 2015, although it would have

been practicable to do so.

28 . Mr. and Mrs. Hays returned home in the early morning

hours of September 25, 2015, and Mrs. Hays continued to have

painful contractions all night that were increasing in strength

and frequency, preventing Mrs. Hays from sleeping d uring the

overnight hours.

The September 25, 2015 Visit

29 . At approximately 9:30 a.m. , on September 25, 2015,

Mrs. Hays presented to Dr. McTammanyÓs office for a scheduled

obstetric appointment. She was examined by Dr. McTammany and

determined to be t hree centimeters dilated and was having

persistent contractions. Dr. McTammany determined that

Mrs. Hays was in labor and instructed Mrs. Hays to return to

HRMC to be admitted for delivery.

30 . Mrs. Hays presented to HRMC on September 25, 2015 , at

approx imately 10:19 a.m. At approximately 11:00 a.m., she was

examined by Diana Grazier, RN, who determined that Mrs. Hays was

having contractions every seven minutes. Nurse Grazier noted

that the contractions were moderate in strength, that Mrs. Hays

was comp laining of 7/10 pain, and that acco rding to

Dr. McTammany, Mrs. Hays was in labor. It was at this time that

Nurse Grazier provided Mrs. Hays with NICA notice, and Mrs. Hays

did in fact sign a NICA notice form, witnessed by Nurse Grazier.

31 . At approxima tely 1:30 p.m., Mrs. Hays was administered

an epidural and was not permitted to get out of her labor and

delivery bed from that point forward. At approximately

4:00 p.m., Dr. McTammany ruptured Mrs. HaysÓ membranes.

32 . The patient chart notes that Cian was delivered by

Dr. McTammany via C - section on September 25, 2015, at

approximately 11:55 p.m.

33 . HRMC contends that based on the medical records and

the testimony of HRMC employees, NICA notice was provided to

Mrs. Hays on September 25, 2015, at approx imately 11:00 a.m. ;

and further contends that although Mrs. Hays had the onset and

persistence of contractions, and was three centimeters dilated,

she did not deliver Cian until 11:55 p.m. HRMC contends that

during that 12 - hour period, Mrs. Hays could hav e requested to be

disconnected from monitors , refused the epidural she received

around 1:30 p.m., and select ed a non - NICA participating doctor

and hospital. Finally, HRMC contends that its policy in effect

in 2015 was to provide NICA notice only at the ti me the

obstetric patient is admitted to the hospital for delivery.

34 . Mrs. Hays does not deny that her signature appears on

the September 25, 2015 , NICA Notice form, however, she contends

that she signed the form while she was in labor, having

persistent contractions and in pain, and had been in such

condition for the entire night before her admission. She

contends that NICA notice was not provided at a reasonable time

prior to delivery, when she could act on the information and

make an informed choice.

35 . Based upon the medical records and testimony, the

undersigned finds that Mrs. Hays was in labor and had the onset

and persistence of contractions at the time HRMC provided her

with NICA notice.

CONCLUSIONS OF LAW

36 . The Division of Administrative He arings has

jurisdiction over the parties and the subject matter of these

proceedings. §§ 766.301 - 766.316, Fla. Stat.

37 . The Plan was established by the Legislature Ðfor the

purpose of providing compensation, irrespective of fault, for

birth - related neur ological injury claimsÑ relating to births

occurring on or after January 1, 1989. § 766.303(1) , Fla. Stat.

38 . The injured infant, his personal representatives,

parents, dependents and next of kin may seek compensation under

the Plan by filing a claim fo r compensation with DOAH within

five years of the infantÓs birth. §§ 766.302(3), 766.303(2),

and 766.305(1) , Fla. Stat . NICA, which administers the Plan,

has Ð45 days from the date of service of a complete claim . . .

in which to file a response to the P etition and to submit

relevant written information relating to the issue of whether

the injury alleged is a birth - related neurological injury.Ñ

§ 766.305(3) , Fla. Stat .

39 . If NICA determines the injury alleged in a claim is a

compensable birth - related n eurological injury, it may award

compensation to the c laimant, provided the award is approved by

the ALJ to whom the claim is assigned. § 766.305(6) , Fla. Stat .

The ALJ has exclusive jurisdiction to determine whether a claim

filed under the Plan is compe nsable. § 766.304 , Fla. Stat .

40 . In discharging this responsibility, the ALJ must make

the following determinations based upon the available evidence:

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

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physicall y

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neuro logical injury as defined in

s. 766.303(2).

Whether obstetrical services were delivered

by a participating physician in the course

of labor, delivery, or resuscitatio n in the

immediate postdelivery period in a hospital.

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.

§ 766.309(1) , Fla. Stat .

41 . An award may be sustained only if the ALJ concludes

that the Ðinfant has sustained a birth - related neurological

injury and that obstetrical services were delivered by a

participating ph ysician at birth.Ñ § 766.31(1) , Fla. Stat . The

term Ðbirth - related neurological injuryÑ is defined as:

injury to the brain or spinal cord of a live

infant . . . caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired.

§ 766.302(2) , Fla. Stat .

42 . The evidence, which is not refuted, established that

Cian sustai ned an injury to the brain and spinal cord caused by

oxygen deprivation occurring during the course of labor and

delivery, and continuing into the immediate postdelivery period,

which resulted in death. Thus, Cian sustained a birth - related

neurological in jury and his e state is eligible for benefits

under the Plan.

43 . Petitioners have raised the issue of whether notice

was provided by the Intervenors pursuant to section 766.316,

which provides:

Each hospital with a participating physician

on its staff and each participating

physician . . . 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 rec eipt 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.

44 . Petitioners contend Intervenors did not give notice

pursuant to section 766.316. In turn, Intervenors assert they

provided sufficient notice. Respondent did not t ake a position

on the notice issue. As the proponents of the 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. AssÓn. , 880 So. 2d 1253, 1257 (Fla .

1st DCA 2004).

45 . Here , it is Dr. McTammanyÓs burden to prove that he

gave NICA notice to Mrs. Hays. Dr. McTammany urges the

undersigned to rely on Ms. HillÓs testimony, that notice was

provided to Mrs. Hays based upon Ms. HillÓs custom and practice.

46 . In Jackson v. Florida Birth - Related Neurological

Injury Compensation Association , 932 So. 2d 1125 (Fla. 5th DCA

2006), the court considered Ðcustom and practiceÑ evidence,

along with other corroborating evidence, to support a finding

that NICA notice was provided. In Jackson , the delivering

obstetrician was a member of a large group of obstetricians that

practiced in the Orlando area. It was undisputed that

Mrs. Jackson received and signed a NICA consent form, which was

also signed and witnessed by a nurse affiliated with the

practice. However, the notice form was left blank as to which

doctors in the practice were participants in the plan.

Therefore, the court found that the Intervenors were not

entitled to a rebuttable presumption, and the court was left to

resolve the issue of fact.

47 . Because of the number of physicians in the practice,

and the uncertainty as to which physician would ultimately

deliver her baby, Mrs. Jackson argued that the notice was

insufficient, because it failed to identif y which physicians in

the group were NICA participants, and which physicians in the

group were not. The Intervenors argued and produced evidence

that all of the physicians in the practice were NICA

participants. Nurse Posey, the nurse responsible for pro viding

NICA notice for the practice, testified that in addition to

providing written notice and the NICA brochure, and documenting

the interaction in the patientÓs medical chart, it was also her

custom and practice to tell the patient that all physicians i n

the practice were participants in the NICA plan.

48 . At the final hearing in Jackson , Intervenors presented

evidence , including the NICA notice form signed by both

Mrs. Jackson and the nurse, and the documentation of the

int eraction in the medical recor d -- contemporaneous notes made in

the prenatal flow sheets . Based thereon, it was determined

that :

Here, giving due consideration to the proof,

it must be resolved that the more persuasive

proof supports the conclusion that, more

likely than not, Nurse Pos ey, consistent

with her routine, discussed the NICA program

with Mrs. Jackson on her initial visit, and

informed Mrs. Jackson that the physicians

associated with PAF's obstetrical program

were participating physicians in the Plan.

In so concluding, it is noted that, but for

the NICA program, Mrs. Jackson acknowledged

Nurse Posey otherwise followed her routine;

that it is unlikely, given such consistency,

Nurse Posey would not have also discussed

the NICA program; that Nurse Posey, as was

her routine, co - si gned each of the forms she

discussed with Mrs. Jackson, including the

Notice to Obstetric Patient; that Nurse

Posey, as was her routine, documented her

activity on the prenatal flow sheet; and

that Mrs. Jackson evidenced little recall of

the documents she signed or the discussions

she had with Nurse Posey. Finally, Nurse

Posey's testimony was logical, consistent,

and credible, whereas Mrs. Jackson's

testimony was often equivocal.

Id. at 1129.

49 . The Jackson Court considered the custom and practice

evid ence relating to who was a participating physician, together

with all of the other evidence in the case. Unlike the

Intervenors in Jackson , Dr. McTammany has not produced any NICA

notice form, although Ms. Hill claims it was her custom,

practice , and offi ce requirement to obtain a signed form from

every patient. Further, Dr. McTammany has not produced any

record from Mrs. HaysÓ medical chart at Medical Associates,

documenting any discussion of NICA or documenting the fact that

NICA notice was provided, al though Dr. McTammany and Medical

Associates admit that they could have done so either by checking

a box, or manually making an en try in the chart. Although

Dr. McTammany contends that it is an office requirement to

electronically scan all signed NICA form s into the patientÓs

chart, no NICA form was ever scanned into Mrs. HaysÓ electronic

medical record.

50 . As to the NICA checkbox referenced above, Mrs. Hill

testified at the final hearing that she checked the box

confirming that she had given NICA notice. At her deposition,

however, she was unsure, and testified that she could not

remember whether she checked the NICA box in Mrs. HaysÓ

electronic medical record.

51 . Here, Mrs. Hill had no recall at all of Mrs. Hays, or

any particular recollection of her interaction with her. Her

testimony relating to the NICA checkbox was equivocal. Further,

unlike the Jackson circumstances, there is nothing in the record

to support Ms. HillÓs testimony that she followed her custom and

practice here. The medical chart does not contain any notice

form, nor does it contain any documentation , electronic or

otherwise, confirming that NICA notice was provided.

52 . At hearing, Dr. McTammany moved Exhibit M - 7 into

evidence, a letter from NICA confirming that he was a

particip ating physician in NICA i n 2015. The letter advised

Dr. McTammany that he was required to provide notice of his

participation in NICA to all obstetrical patients. The letter

also strongly recommended that Dr. McTammany document in the

medical chart that notice was provided and identify the staff

member who provided the notice. None of these recommendations

were followed in this case. Neither Dr. McTammany nor Ms. Hill

provided any explanation as to why, if in fact the custom and

practice was followed wi th Mrs. Hays, no signed NICA notice form

could be located.

53 . It is Dr. McTammanyÓs burden to establish that NICA

notice was provided to Mrs. Hays. The greater weight of the

evidence, in particular , the absence of a signed NICA notice

form coupled with a lack of specific recall by Mrs. Hill as to

her interaction with Mrs. Hays, undermines any presumption that

might have attached to the u sual custom and practice of

Dr. McTammany and Medical Associates with regard to providing

NICA notice. Accordingly, th e undersigned finds that

Dr. McTammany and Medical Associates did not provide NICA notice

as required by section 766.316.

54 . The Florida Supreme Court has made it clear that

s ection 766.316 requires both participating physicians and

hospitals with partic ipating 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, 998 (Fla.

2010).

55 . In Weeks v. Florid a 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

determ ination of when this relationship

commences is a question of fact. Once the

relationship commences, because the statute

is silent on the time period within which

notice must be furnished, under well -

established principles of statutory

construction, the la w implies that the

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.

5 th DCA 1993). This determination depends

upon 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 a primary purpose of the notice

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

970, 971 (Fla. 5 th DCA 1995).

56 . HRMC asserts that Mrs. Hays was provided NICA notice

upon her presentation to HRMC on September 25, 2015. However,

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

HRMC to give notice pursuant to section 766.316 when it had an

opportunity prior to Mrs. HaysÓ admission on September 25, 201 5,

to provide notice.

57 . The court in Weeks held:

In summary, we hold that the NICA notice

must be given within a reasonable time after

the provider - obstetrical patient

relationship begins, unless the occasion of

the commencement of the relationship

invo lves 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 "r easonable 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.

58 . At hearing, HRMC contended that it provided notice

within a reasonable time before delivery, because Mrs. Hays did

not deliver Cian until 12 hours after her admission to the labor

and delivery unit. HRMC asserted that although Mrs. Hays was

having o ngoing and persistent contractions, notice was provided

during a Ðresting periodÑ between contractions. HRMC further

contended that during the 12 hours while Mrs. Hays was in active

labor, she could have called the 1 - 800 number regarding NICA,

requested t o stop her epidural, unhooked herself from the fetal

monitor, left the hospital and sought out another provider if

she so chose. Finally, the Intervenors contended that Mrs. Hays

was at all times alert, oriented , and capable of making

decisions about her health care. Finally, HRMC argues that

although Mrs. Hays presented to HRMC on three occasions prior to

the date she delivered Cian, no obstetrical patient relationship

was established because each presentation was on an outpatient

basis only.

59 . Florid a courts have repeatedly rejected the argument

that an expectant mother, in the midst of labor, could somehow

make a reasoned decision about whether to select a NICA provider

or not. In Northwest Medical Center v. Ortiz , 920 So. 2d 781,

785 (Fla. 4th DCA 2006), the court held that the purpose of the

notice is Ðto 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 and thereby p reserving her civil remedies.Ñ (quoting

Galen of Fla., Inc. v. Braniff , 696 So. 2d 308, 309 - 10 (Fla.

1997)). The court reasoned that if the purpose of the notice

requirement is to give the pati ent the choice to choose a NICA -

protected delivery or not, hos pitals should give notice at a

time where such choice can still be made. By waiting until an

emergency arises, the hospital is depriving the patient of this

choice.

60 . In rejecting NorthwestÓs argument that notice provided

the day of delivery was reason able, the court stated as follows:

What patient in the midst of labor is going

to take the time to call an 800 number to

question the hospital's NICA participation?

Id. at 785. The Court rejected NorthwestÓs suggestion that

notice provided on the day of delivery was reasonable,

emphasizing the purpose of the rule in allowing the patient to

make an informed choice at a time when she could act on the

information.

61 . Consistent with the C ourtÓs analysis in Ortiz , the

undersigned also rejects HRMCÓs content ion that in the 12 hours

before she delivered her son, Mrs. Hays could have requested to

stop her epidural (after which she could not walk), unhook

herself from the fetal monitors, left the hospital and selected

a non - NICA - participating physician to delive r her baby, all

while in the midst of labor. At that point, Mrs. Hays was

unable to make an informed choice, nor could she act on the

information.

62 . The hospitalÓs prof essional relationship with

Mrs. Hays, relating to her pregnancy, began when Mrs. Ha ys

presented to HRMC on August 30, 2015, with complaints relating

to her pregnancy. She was treated at the hospital for those

complaints. See Lamendola v. NICA , Case No. 13 - 3870N (Fla. DOAH

Aug. 13, 2014).

63 . As discussed above, it is undisputed that H RMC did not

give Mrs. Hays NICA notice on August 30, 2015 ; September 6,

2015 ; or September 24, 2015, even though it was practicable to

do so. It is also undisputed that when HRMC finally did give

Mrs. Hays NICA notice on September 25, 2015, such notice wa s not

sufficient 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

th e relationship and that the failure to do so is not excused by

a subsequent emergency).

64 . Based upon the above, it is concluded that HRMC did

not provide NICA notice to Mrs. Hays in accordance with section

766.316.

65 . HRMC further contends that it sho uld be excused for

failing to provide NICA notice because Mrs. HaysÓ primary

objective was to find an obstetrician that would perform a VBAC,

because she had had two prior C - sections and desired more

children, and therefore, finding a provider that did not have

NICA protection was not her concern. For the reasons set forth

below, this argument is rejected as legally irrelevant.

66 . 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 would

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

hospital met its condition precedent of providing notice in

accordance with section 766. 316. This tribunal does not have

the authority to construe an unambiguous statute in a way that

extends its express terms. See , e.g. , Fla. Carry, Inc. v. Univ.

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

Hunt, D.O., P.A. v. Huppman , 2 8 So. 3d 989, 992 (Fla. 2d DCA

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

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

the notice requirement is a matter wholly within the legislative

domain).

67 . This conclusion is su pported by case law in which

similar arguments were rejected. For instance, in Board of

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

sub nom. , University Medical Center, Inc. v. Athey , 699 So. 2d

1350 (Fla. 1997), the health care provider s argued that they had

no opportunity to provide NICA notice pursuant to the Act. They

claimed that no Ðinformed choiceÑ by the patients 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 requir ement and then

assert the NICA exclusivity to defeat a civil action.ÓÑ Id.

at 50.

68 . 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 76 6.316, will

lose their NICA exclusivity regardless of whether the

circumstances precluded 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

ad vantage of a reasonable opportunity to provide predelivery

notice, a health care provider will not be heard to complain

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

69 . The undersigned finds the courtÓs decision in Athey to

be controll ing here. Underlying that case was a claim by the

provider that NICA notice was not necessary under the

circumstances because the patient was going to deliver at the

facility regardless of whether timely NICA notice had been

given. As in Athey , accepting HRMCÓs argument would encourage

uncertainty by allowing HRMC to Ðignore the notice requirement

and then assert the NICA exclusivity to defeatÑ this action.

Id. at 50. NICA establishes a bright line rule requiring

providers to give predelivery notice, ex cept in circumstances

not relevant here, in order to claim NICA exclusivity. The

undersigned cannot and will not accept HRMCÓs invitation to

create a caveat to that clear legislative mandate.

70 . Finally, HRMC contends that it should be excused from

givi ng notice because its internal policy in effect in 2015 was

to give NICA notice only when the patient was admitted for

delivery. Florida courts have likewise rejected this argument.

See Tarpon Springs Hosp . Found . v. Anderson , 34 So. 3d 742 (Fla.

2d DCA 2010)(rejecting the hospitalÓs lengthy explanation of its

policy against providing NICA notice at registration, and

affirming that notice must be provided at the first

opportunity). Again, the statute does not permit hospitals to

create a caveat simply by establishing a policy that violates

the notice requirement, and the undersigned declines to do so

today.

71 . HRMCÓs argument that an obstetrical patient

relationship with HRMC was not established until Mrs. Hays was

admitted as an inpatient on September 25, 2015 , is rejected.

While Ðobstetrical patient relationshipÑ is not defined by

statute, HRMCÓs assertion that Mrs. HaysÓ three presentations to

HRMC prior to the day she gave birth did not establish an

obstetrical patient relationship is unpersuasive. Rather, on

each of those occasions HRMC knew, or should have known, that

Mrs. Hays was in late - stage pregnancy, and had expressed her

intent to have the baby delivered at HRMC. There is no logic in

HRMCÓs assertion that a patient must be admitted to the hospital

to deliver her baby before the obstetrical patient relationship

is established. By this reasoning, NICA notice given upon

admission for delivery would be per se untimely, since the

patient would likely already be in labor and unable to make an

ef fective choice of provider at the time the notice was

provided.

72 . Mrs. Hays became an obstetrical patient of HRMC well

before her delivery, thus triggering the obligation to furnish

her with NICA notice within a reasonable time, which was not

excused by the subsequent emergency (presenting in labor to

deliver her baby). By September 25, 2015, Mrs. Hays did not

have sufficient time to make an informed choice on whether to

use a participating health care provider prior to delivery, as

she was in labor. T he hospital had three opportunities to

provide notice to Mrs. Hays prior to her presenting for

delivery, but did not do so. Thus, the notice provided by HRMC

on September 25, 2015 , was inadequate to meet the requirements

of section 766.316.

73 . Under the facts found herein, neither Dr. McTammany

(including his associated medical group, Medical Associates) nor

HRMC provided NICA notice as required by section 766.316, and

therefore, neither is entitled to the exclusive remedy

protection of section 766.303.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1 . Dr. McTammany and his associated medical group, Medical

Associates of Brevard, LLC, failed to provide notice in

compliance with section 766.316.

2 . Holmes Region al Medical Center failed to provide notice

for the hospital in compliance with section 766.316.

3 . Jurisdiction over this matter is retained, and t he

parties are accorded 30 days from the date of this Order to

resolve, subject to approval of the undersign ed, the amount and

manner of payment of an award to Petitioner s ; 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 res olved within

such period, the parties shall so advise the undersigned, and a

hearing will be scheduled to resolve such issues. Once

resolved, an award will be made consistent with section 766.31.

4 . In the event Petitioner s file an election of remedies

d eclining or rejecting NICA benefits, this case will be

dismissed with prejudice and the file of the Division of

Administrative Hearings will be closed.

DONE AND ORDERED this 2 5th day of March , 2019 , 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 2 5th day of March , 2019 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallah assee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8903)

Rosalyn S. Baker - Barnes, Esquire

Searcy, Denney, Scarola Barnhart and Shipley, P.A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

(eServed)

(Certified Mai l No. 7016 0910 0001 7987 8910)

Jordan A. Dulcie, Esquire

Searcy, Denney, Scarola Barnhart and Shipley, P.A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

(Certified Mail No. 7016 0910 0001 7987 8927)

Philip F. Moring, Esquire

McEwan, M artinez, Dukes & Hall, P.A.

Post Office Box 753

108 East Central Boulevard

Orlando, Florida 32802 - 0753

(Certified Mail No. 7016 0910 0001 7987 8934)

Patrick L. Mixson, Esquire

Wicker Smith O'Hara McCoy & Ford, P.A.

Suite 1000

390 North Orange Avenue

Orla ndo, Florida 32801

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8941)

Richards H. Ford, Esquire

Wicker Smith O'Hara McCoy & Ford, P.A.

Suite 1000

390 North Orange Avenue

Orlando, Florida 32801

(Certified Mail No. 7016 0910 0001 7987 8958)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8965)

Leanne B. Wagner, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7016 0910 0001 7987 8972)

Mary Jaye Hall, Esquire

Stacey J. Carlisle, Esquire

McEwan, Martinez, Dukes & Hall, P.A.

108 East Central Boulevard

Post Office Box 753

Orlando, Florida 32802

(eServed)

(Certified Mail No. 7016 0910 00 01 7987 8989)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7016 0910 0001 7987 8996)

Mary C. Mayhew , Secretary

Agency for Health Care Adm inistration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7987 9009)

NOTICE OF RIGHT TO JUDICIAL REVIEW

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

by appeal to the District C ourt 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 t he 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 the appropriate District Court of Appeal.

See § 766.311(1), Fla. Stat., and Fla. Bi rth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).