19-005147N Logan Flounders And Brittany Gaeta, Individually And As Natural Parents Of Ashtyn Flounders, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, March 4, 2021.

Summary: The parties' Stipulation and Joint Petition for Compensation of Claim Arising out of Florida Birth-Related Neurological Injury is approved.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L OGAN F LOUNDERS A ND B RITTANY G AETA ,

I NDIVIDUALLY A ND A S N ATURAL P ARENTS

OF A SHTYN F LOUNDERS , A M INOR ,

Petitioners ,

vs. Case No. 19 - 5147N

F LORIDA B IRTH - R ELATED N EUROLOGICAL

I NJURY C OMPENSATION A SSOCIATION ,

Respondent,

and

O RLANDO H EALTH , I NC . D / B / A H EALTH

C ENTRAL H OSPITAL , A ND R OSEANNE M.

H ENRY , M.D.,

Intervenors .

/

F INAL O RDER

This cause came before the u ndersigned upon the partiesÔ Joint Motion for

Final Resolution by Stipulated Record, filed October 28, 2020, which was

granted on October 29, 2020, and the partiesÔ proposed final orders.

S TATEMENT O F T HE I SSUES

Whether Intervenors, Orlando Health, Inc. , d/b/a Health Central Hospital

and Roseanne M. Henry, M.D., satisfied the notice requirements set forth in

section 766.315, Florida Statutes.

P RELIMINARY S TATEMENT

On September 10, 2019, Petitioners, Logan Flounders and Brittany Gaeta,

individually and as the natural parents of Ashtyn Flounders (Ashtyn), a

minor, filed a Petition for Determination of Compensability Pursuant to

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

Administrative Hearings (DOAH), for a determination of compe nsability

under the Florida Birth - Related Neurological Injury Compensation Plan

(NICA or the Plan). The Petition named Dr. Henry as the physician who

provided obstetric services for the birth of Ashtyn at Health Central Hospital

in Ocoee, Florida, on July 23, 2017.

On October 4, 2019, DOAH mailed a copy of the Petition to Respondent,

Dr. Henry, and Health Central Hospital via certified mail. Respondent was

served with the same on October 7, 2019. On October 14, 2019, Orlando

Health, Inc., d/b/a Health Cen tral Hospital and Roseanne M. Henry, M.D.,

filed a petition to intervene, which was granted on October 18, 2019.

After four unopposed motions for extension of time were granted for

Respondent to respond to the Petition, on May 27, 2020, Respondent filed a

Notice of Compensability and Request for Evidentiary Hearing on

Compensability (Notice of Compensability), wherein Respondent averred that

it had determined that PetitionersÔ claim is a Ñbirth - related neurological

injury,Ò as defined by section 766.302(2 ) . Respondent further maintained that

the claim was compensable and requested the matter be scheduled for final

hearing on the issue of compensability. On June 8, 2020, PetitionersÔ

Response to RespondentÔs Notice of Compensability and Request for

Evidenti ary Hearing was filed, wherein Petitioners contested that the claim

was compensable and requested a hearing on the issue of compensability.

RespondentÔs Motion for Summary Final Order was filed on June 12,

2020. Thereafter, due to COVID - 19 pandemic - relat ed concerns, Petitioner

was granted several extensions of time to respond to RespondentÔs Motion.

On August 24, 2020, the undersigned issued an Order on Pending Motions,

granting Petitioners an extension of time of September 30, 2020, to conduct

reasonable discovery to respond to RespondentÔs Motion. Thereafter, on

September 9, 2020, the matter was scheduled for a final hearing to begin on

November 12, 2020.

On October 30, 2020, the undersigned issued a Partial Summary Final

Order, concluding that Petitio ners had sustained a compensable birth - related

neurological injury, and reserved jurisdiction to determine whether the notice

requirements of section 766.316 were satisfied and to determine the issue of

an award pursuant to section 766.31.

A hearing to a ddress whether the notice requirements of section 766.316

have been satisfied was scheduled for November 12, 2020 . On October 28,

2020, however, the parties filed a Joint Motion for Final Resolution by

Stipulated Record, which was granted on October 29, 20 20. Pursuant to the

partiesÔ Joint Stipulation to Extend Deadlines, filed December 3, 2020, and

approved by Order of December 8, 2020, the Joint Stipulated Record was to

be filed December 4, 2020, and the parties were to submit proposed final

orders on or before December 14, 2020, and any rebuttal proposed final

orders on or before December 21, 2020.

The Joint Stipulated Record was filed December 9, 2020, and the exhibits

contained therein have been admitted into evidence. The parties timely filed

propose d final orders which have been duly considered.

F INDINGS O F F ACT

Stipulated facts :

The parties have stipulated to the facts, as set forth verbatim, in

paragraphs one through ten :

1. That the Petitioners, Logan Flounders and Brittany Gaeta, are the

parent s and natural guardians of Ashtyn Flounders.

2. The physician providing obstetric services at birth was Roseanne

Henry, M.D.

3. That Roseanne Henry, M.D. was a participating physician in NICA in

2017.

4. Pursuant to 766.309(1)(B), Fla. Stat., obstetrical services were delivered

by a participating physician in the course of labor, delivery or resuscitation in

the immediate post - delivery period in a hospital.

5. That Ashtyn Flounders was born at Health Central Hospital on July 23,

2017.

6. That the physic ian providing obstetric services who was present at

birth was Roseanne Henry, M.D.

7. That obstetrical services were delivered by a participating physician,

Roseanne Henry, M.D., in the course of labor, delivery, or resuscitation in the

immediate post - deli very period in the hospital.

8. That Ashytn Flounders suffered a Ñbirth - related neurological injuryÒ as

defined in Section 766.302(2), Florida Statutes.

9. That Brittany Gaeta signed the NICA notice form from West Orange

OB/GYN Specialists on December 22 , 2016.

10. That Brittany Gaeta signed the NICA notice form from Health Central

Hospital on July 21, 2017.

Non - stipulated facts :

11. On December 22, 2016, Ms. Gaeta presented to West Orange OB/GYN

Specialists (West Orange) 1 to initiate prenatal care. A t the time, Ms. Gaeta

was approximately nine weeks pregnant.

12. The unrefuted testimony established that the physicians and staff of

West Orange were employed by Orlando Health, Inc. West Orange, at all

times pertinent to this matter, had a location with in a suite of Health Central

Hospital in Ocoee, Florida. Health Central Hospital is also an entity of

Orlando Health, Inc. Angel Patrick, the Patient Access Manager for Health

Central Hospital, testified via affidavit that West Orange is a separate entity

from Health Central Hospital.

13. Christine Vicente, a front desk receptionist for West Orange, testified

that her duties included providing new obstetric patients with a Ñnew patient

packet.Ò Ms. Vincente acknowledged that she does not have an independen t

recollection of Ms. Gaeta on her initial December 22, 2016 visit. She credibly

testified that her routine included providing the new patient with a form

entitled ÑReceipt of Notice to Obstetric PatientÒ (NICA form) and a

photocopied paper version of a br ochure entitled ÑPeace of Mind.Ò

14. The NICA form contained the following language:

West Orange OB/GYN Specialists

10,000 W. Colonial Drive, Suite 387; Ocoee, FL

34761

13528 Summerport Village Pkwy;

Windermere, FL 34786

HC: 407 - 58 - 0033; SVP: 407 - 614 - 16 54; Fax 407 -

294 - 8003

RECEIPT OF NOTICE TO OBSTETRIC PATIENT

I have been furnished information in the form of a

Brochure prepared by the Florida Birth - Related

Neurological Injury Compensation Association

(NICA), pursuant to Section 766.316, Florida

Statues , by Dieguez, Oloufa & Pagani OB/GYN ,

and have been advised that all physicians in the

Physicians Group are participating physician(s) in

that program, wherein certain limited

compensation is available in the event certain types

of qualifying neurological injuries may occur during

labor, delivery or resuscitation in a hospital. For

specifics on the program, I understand I can contact

the Florida Birth - Related Neurological Injury

Compensation Association, Post Office Box 14567,

Tallahassee, Florida 32317 - 456 7, (800) 398 - 2129.

1 West Orange was also known as Dieguez, Oloufa & Pagani OB/GYN.

I specifically acknowledge that I have received a

copy of the Brochure prepared by NICA.

15. Ms. Gaeta testified that she did not recall the NICA form or brochure;

however, she was not disputing the fact that she received the same. As noted

in the stipulated facts above, Ms. Gaeta signed the form on December 22,

2016. Her signature was attested to by Ms. Vicente.

16. The undersigned finds, based upon t he totality of credible evidence

that it is more likely than not that, on December 2 2, 2016, Ms. Gaeta was

provided the NICA form advising of West OrangeÔs participation in NICA and

the NICA brochure. The undersigned further finds that the obstetrical

relationship by and between West Orange (including Dr. Henry) and

Ms. Gaeta began on De cember 22, 2016.

17. Dr. Henry began her employment at West Orange in August 2016.

Having recently completed her residency in June 2016, Dr. Henry was not a

NICA participating physician in 2016. 2 On January 1, 2017, Dr. Henry

became a NICA participating physician. Accordingly, Dr. Henry was not a

NICA participating physician at the time Ms. Gaeta signed the form and was

provided the NICA pamphlet.

18. West Orange did not perform ultrasounds within the office. On

January 25, 2017, Ms. Gaeta presented to H ealth Central HospitalÔs

Outpatient Radiology Department (Outpatient Radiology) for a nuchal

translucency, which was ordered by one of the physicians at West Orange,

Shereen Oloufa, M.D. At the conclusion of the scan, Ms. Gaeta went home

and the results we re faxed to Dr. Oloufa.

19. M s. Gaeta again presented to Outpatient Radiology on March 8, 2017,

for an ultrasound to Ñ[c]heck fetal anatomy,Ò and to Ñcheck size and dates.Ò

2 Pursuant to section 766.302(7), a Ñ p articipating physicianÒ is defined as Ñ a physician

licensed in Florida to practice medicine who practices obstetrics or performs obstetrical

services either full time or part time and who had paid or was exempted from payment at the

time of the injury the assessment required for participation in the birth - related neurological

injury compensation plan for the year in which the injury occurred. Ò

20. Dr. HenryÔs first prenatal involvement with Ms. Gaeta occurred on

May 31, 201 7. Thereafter, Dr. Henry ordered another ultrasound and

Ms. Gaeta went to Outpatient Radiology for the same on June 5, 2017. The

documented purpose of the ultrasound was as follows: ÑCheck fetus. Check

fetal anatomy. Possible size and date discrepancy in this third trimester

pregnancy.Ò

21. On June 28, 2017, Ms. Gaeta presented to West Orange for a prenatal

visit with Dr. Henry. At that time, Ms. Gaeta was presented with a number

of consent forms to review and sign. Specifically, she was presented with th e

following: 1) a ÑSurgery/Procedure ConsentÒ form, which provided consent for

Dr. Henry to perform a Cesarean section; 2) a ÑConsent to Transfusion of

Blood or Blood ProductsÒ form, which provided consent for Drs. Henry,

Oloufa, and Pagani, as well as Hea lth Central Hospital, to administer and

transfuse blood, plasma, blood products, or blood derivatives to Ms. Gaeta

Ñattending my care during this hospitalization and/or course of treatmentÒ ;

3) a ÑLabor Induction ConsentÒ from, which provided consent and

authorization for Dr. Henry and whomever she may designate as her

assistants, including Health Central Hospital, to perform upon Ms. Gaeta an

induction of labor. All of the aforementioned forms were signed by Ms. Gaeta

and Dr. Henry. Dr. Henry testified th at Ñwe have to fill out these packets

before we can even schedule the patient for a C - section or induction.Ò

22. On June 28, 2017, while at West Orange, Ms. Gaeta was also

presented with a form entitled ÑInduction Schedule and Instructions.Ò This

form ind icated that Ms. Gaeta was scheduled for an induction of labor on

July 21, 2017, at Health Central Hospital. Pursuant to the form, she was

directed to arrive at 7:00 a.m. This form further provided the following:

Upon Arrival

If you arrive prior to 6:00 am: Please go the

Emergency Room Registration Desk, inform them

that you are here for a scheduled induction and

give them this form.

Of [sic] you arrive after 6:00 am: Please go directly

to REGISTRATION in the main lobby of he

hospital and give them this form. The Admission

Clerk will register you into the hospital and send

you up to Labor & Delivery on the 3 rd Floor.

Note: You are still required to check - in/register

upon arrival even if you have pre - registered for the

birth of your baby at an earlier d ate.

23. Finally, on June 28, 2017, Dr. Henry completed and signed a form

entitled ÑHealth Central Hospital Induction/Cesarean WorksheetÒ as well as

five pages of ÑPhysicianÔs Orders for: Admission to Labor & Delivery,Ò with

respect to Ms. Gaeta.

24. At all times pertinent to this matter, Dr. Henry and West Orange only

delivered their patients at Health Central Hospital.

25. Dr. Henry credibly testified at her deposition that the forms noted

above were signed at West OrangeÔs office and, on June 30, 201 7, faxed to

Health Central Hospital. Van K. Tran, the practice manager for West

Orange, testified that the consent forms were provided by Health Central

Hospital, and after being signed at West Orange the forms were faxed to

Health Central Hospital. Ms. Va n Tran testified that she did not know

Health Central HospitalÔs procedure upon receipt of the documents on

June 30, 2017. 3 Specifically, she testified that, ÑAgain, I donÔt know if itÔs the

hospital want us to or just a process that Ï just to speed up th e Ï make sure

everything is there and organized on the day of the procedure.Ò

26. Following the June 28, 2017, visit, Dr. Henry ordered an additional

ultrasound and, on July 10, 2017, Ms. Gaeta went to Outpatient Radiology

3 Due to the evidentiary pres entation, the undersigned cannot discern from the record what

Health Central HospitalÔs procedure, if any, was upon receipt of the forms faxed on June 30,

2016, from West Orange.

for the same. The purpose of the ultrasound was documented as ÑCheck fetus.

Check for fetal size less than dates and a third trimester pregnancy.Ò

27. Sherrie Quedenfield is the Director of Imaging and Cardiology

Imaging for Health Central Hospital. Ms. Quedenfiled testified that

Outpa tient Radiology is not a part of the Labor and Delivery Department at

Health Central Hospital. She explained that, upon presentation to

Outpatient Radiology, the patient encounters a registration clerk and a data

entry person, neither of whom have training in obstetrics or in the NICA

program. She further explained that Ms. Gaeta would not and did not

encounter a registered nurse, a licensed practical nurse, or a medical doctor

during any of her visits to Outpatient Radiology.

28. Ms. Quedenfield further t estified, credibly, that Outpatient Radiology

would not have access to the consent forms completed by Ms. Gaeta on

June 28, 2017; and had no knowledge of whether Ms. Gaeta intended to

deliver at Health Central Hospital.

29. Dr. Henry testified that Ms. G aeta did not Ñpre - registerÒ at Health

Central Hospital for the induction of labor and that she typically does not tell

her patients to do so. 4 Angel Patrick also testified in his affidavit that Health

Central Hospital did not possess any records indicating that Ms. Gaeta

presented to the hospital on June 28, 2017, for any reason, including pre -

registration.

30. Ms. Gaeta went to Health Central Hospital for her induction, as

planned, on July 21, 2017, and arrived in Labor and Delivery at 7:15 a . m.

The under signed finds that the hospital provider - obstetrical patient

relationship by and between Health Central Hospital and Ms. Gaeta began

upon her admission on July 21, 2017.

4 The evidentiary record fails to provide any guidance as to what transpires between a

potential obstetrical patient and Health Central Hospital when the obstetrical patient pre -

registers.

31. Kathleen Schurig, R.N. , was the delivery nurse assigned to Ms. Gaeta

upon initial admission. Nurse Schurig explained her initial general duties as

follows:

And when you are admitting them, you bring them

in, you tell them whatÔs going to happen, you put

them on a fetal monitor. You go over what you are

doing. At some point, you start a n IV, you get a

consent signed, and then and when everybody

agrees on the plan, then they start whatever sheÔs

there for, whether sheÔs there for regular labor that

she went into naturally or any other reason.

32. Upon review of medical records provided a t her deposition, Nurse

Schurig provided the following timeline of initial events: 1) Ms. GaetaÔs

height and weight was charted at 7:26 a . m . ; 2) she reviewed Dr. HenryÔs

physicianÔs orders around 7:30 a . m . ; 3) a urine sample was also collected

around 7:30 a . m . ; 4) a fetal monitor was placed on Ms. Gaeta at

approximately 7:56 a . m . ; 5) at 8:40 a . m . , TED hose were placed on

Ms. GaetaÔs legs and it was documented that she was completely oriented to

her room; 6) at 8:50 a . m . , a blood sample was collected from M s. Gaeta; and

7) at 9:00 a . m . , Nurse Schurig performed a vaginal examination of Ms. Gaeta.

33. Nurse Schurig acknowledged that she di d not have an independent

recollection of Ms. Gaeta related to her admission on July 21, 2017. She

credibly testified as to her routine practice of prov id ing obstetric patients,

upon their admission, a hospital NICA notice form and the brochure

furnished from NICA. She credibly testified that she provided a form entitled

ÑReceipt of Florida Birth - Related Neurological Injury Compensation

Association (NICA) InformationÒ (NICA form) to Ms. Gaeta sometime

between 7:15 a.m. and 9:00 a . m . , and that both she and Ms. Gaeta signed the

form at 9:00 a . m.

34. At Nurse SchurigÔs deposition the following exchanges occurred:

Q. Would yo u have patients at Health Central

Hospital sign a form acknowledging notice of

participation of the hospital in the NICA program?

A. Yes, thatÔs pretty standard across the board.

ThatÔs Ï when you have the sign consents, they sign

a statement say Ï and yo u give them a pamphlet

that goes over the NICA Program.

* * *

Q. Okay. But regardless of when it happened in

that timeframe, you would have made sure that

you explained to her what the program was, given

her the Peace of Mind brochure, and allowed her t o

make an informed decision on whether she wanted

to sign that document, is that right?

A. Oh yes, definitely.

35. The language of the subject NICA form, however, merely advises the

patient of the existence of the NICA plan without notifying the patien t of

Health Central HospitalÔs participation in NICA. The form language is set

forth, in full, as follows:

Receipt of Florida Birth - Related Neurological

Injury Compensation Association (NICA)

Information

I have been given information, by Health Central

Hospital, regarding Florida Birth - Related

Neurological Injury Compensation Association

(NICA), pursuant to Section 766.301 - 766.316,

Florida Statute.

The information provided discusses certain limited

compensation that is available in the event certain

ty pes of qualifying neurological injuries may occur

during labor, delivery, or resuscitation in a

hospital.

For specific information, I understand that I can

contact the Florida Birth - Related Neurological

Injury Compensation Association (NICA), Post

Office Box 14567, Tallahassee, Florida 32317 - 4567

or via telephone at (800) 398 - 2129.

3 6 . Nurse Schurig credibly testified that she provided Ms. Gaeta the

brochure prepared by NICA entitled Peace of Mind. Ms. Gaeta testified that

she did not recall receiving th e NICA form or brochure; however, as noted in

the stipulated facts, she acknowledges she signed the NICA form, and further

testified that she had no reason to dispute receipt of the NICA form or

brochure.

3 7 . The undersigned finds, based upon the totality of credible evidence

that it is more likely than not that Ms. Gaeta was provided the NICA form

and the NICA brochure on July 21, 2017.

3 8 . With respect to the timing of the notice, and whether it could have

been provided earlier, Nurse Schurig testified as follows:

. . . It looks like, according to the charting, that I

had the consent signed at 9 oÔclock. So, thatÔs the

only thing I can tell you is that thatÔs what I did.

* * *

If I was Ï usually, I do all the consents at one point

and time. There is Ï would have been no reason for

me to do that NICA earlier. I could have given her

Ï had her sign all t he consents as soon as she

walked in the door, but that is obviously not what

happened here.

3 9 . Nurse Schurig further credibly testified that, at the time the NICA

notice was provided, Ms. Gaeta had not been administered any medication

that would have affected her ability to make an informed decision about

signing the NICA notice form. Ms. Gaeta credibly testified that there were no

conditions that woul d have prevented her from reading the NICA notice form

prior to signing the same.

40 . The available record fails to contain any evidence to suggest that,

when Ms. Gaeta was admitted to Health Central Hospital, she was in an

Ñemergency medical condition,Ò as that term is defined in section 395.002(8),

Florida Statutes. Two days after being admitted, on July 23, 2017, Ashtyn

was born a live infant at Health Central Hospital.

C ONCLUSIONS O F L AW

4 1 . DOAH has jurisdiction over the parties to and the subject ma tter of

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

4 2 . The Plan was established by the Legislature Ñfor the purpose of

providing compensation, irrespective of fault, for birth - related neurological

injury claimsÒ relating to births occurring on or a fter January 1, 1989.

§ 766.303(1), Fla. Stat.

4 3 . Section 766.301(2) provides that it is Ñthe intent of the Legislature to

provide compensation, on a no - fault basis, for a limited class of catastrophic

injuries that result in unusually high costs for cu stodial care and

rehabilitation.Ò The injured infant, her or his personal representative,

parents, dependents, and next of kin may seek compensation under the Plan

by filing a claim for compensation with DOAH. §§ 766.302(3), 766.303(2),

and 766.305(1), Fl a. Stat. The administrative law judge ( ALJ ) has exclusive

jurisdiction to determine whether a claim filed under the Plan is

compensable. § 766.304, Fla. Stat.

4 4 . In discharging this responsibility, pursuant to section 766.309(1), the

ALJ must make the fo llowing determinations based upon all available

evidence:

(a) Whether the injury claimed is a birth - related

neurological injury. If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury caused by

oxygen deprivation or mechanical injury and that

the infant was thereby rendered permanently and

substantially mentally and physically impaired, a

rebuttable presumption shall arise that the injury

is a birth - related neurolo gical injury as defined in

s. 766.302 (2).

(b) Whether obstetrical services were delivered by a

participating ph ysician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital; or by a certified

nurse midwife in a teaching hospital supervised by

a participating physician in the course of labor,

delivery, or resuscitation in the immediate

postdelivery period in a hospital.

(c) How much compensation, if any, is awardable

pursuant to s. 766.31 .

(d) Whether, if raised by the claimant or other

party, the factual determinations regarding the

notice requirements in s. 766.316 are satisfied.

4 5 . At issue here is whether Intervenors complied with the notice

requirements of section 766.316. ÑBecause NICA remedies are limited,

obstetric patients subject to limited compensation under NICA are entitle d to

receive pre - delivery notice of their rights and limitations under the plan.Ò

Fla. Birth - Related Neurological Injury Comp. AssÔn v. D iv. of Admin.

Hearings , 29 So. 3d 992, 995 (Fla. 2010). As the proponents of the proposition

that appropriate notice wa s given or that notice was not required, the burden

rests upon the Intervenors to show that the statutory requirements have

been met. Fla Health Sciences Ct r . , Inc. v. Div. of Admin. Hearings , 974 So 2d

1096, 1099 - 1000 (Fla. 2d DCA 2008); Tabb v. Fla. Birt h - Related Neurological

Injury Comp. AssÔn , 880 So. 2d 1253, 1257 (Fla. 1st DCA 2004).

4 6 . Section 766 .316 provides as follows:

Notice to obstetrical patients of participation

in the plan. Ð Each hospital with a participating

physician on its staff and e ach participating

physician, other than residents, assistant residents,

and interns deemed to be participating physicians

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

Related Neurological Injury Compensation Plan

shall provide notice to the obstetrical patients as to

the limited no - fault alternative for birth - related

neurological injuries. Such notice shall be pr ovided

on forms furnished by the association and shall

include a clear and concise explanation of a

patientÔs rights and limitations under the plan. The

hospital or the participating physician may elect to

have the patient sign a form acknowledging receipt

of the notice form. Signature of the patient

acknowledging receipt of the notice form raises a

rebuttable presumption that the notice

requirements of this section have been met. Notice

need not be given to a patient when the patient has

an emergency medic al condition as defined in s.

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

4 7 . In Galen of Florida, Inc. v. Braniff , 696 So. 2d 308 , 309 - 10 (Fla. 1997),

the court set forth the purpose for the notice requirement as follows:

[The statutory language] makes clear the purpose

of the notice is to give an obstetrical patient an

opportunity to make an informed choice between

using a health care provider participating in the

NICA plan or using a provider who is not a

participant and thereby preserving her civil

remedies. Turner v. Hubrich , 656 So. 2d 970, 971

(Fla. 5th DCA 1995).

4 8 . The Florida Supreme Court has inte rpreted NICAÔs notice provision to

require independent notice from both participating physicians and

participating hospitals Ð notice by one does not satisfy notice for the other.

Univ. of Miami v. Ruiz , 916 So. 2d 865 (Fla. 3d DCA 2005) citing Fla. Birth -

Re lated Neurological Injury Comp. AssÔn v. D iv. of Admin. Hearings , 29 So.

3d 992, 998 (Fla. 2010).

4 9 . The NICA ÑPeace of MindÒ brochure satisfies the legislative mandate

of providing a Ñclear and concise explanation of a patientÔs rights and

limitations u nder the plan.Ò Dianderas v. Fla. Birth - Relate Neurological

Comp. AssÔn , 973 So. 2d 523, 527 (Fla. 5th DCA 2007). To meet the purpose of

the statute, however, participating physicians and hospitals must notify the

patient of their own participation in NICA . Fla. Health Sciences Ctr. v. Div . of

Admin. Hearings , 974 So.2d 1096, 1100 (Fla. 2d DCA 2007), cert. denied sub

nom Fla . Birth - Related Neurological Injury Comp . Ass Ôn v. Britt , 984 So. 2d

519 (Fla. 2008).

50 . In Fl orid a Health Sciences C ente r , the court addressed, inter alia ,

whether a providerÔs notice to the patient of the existence of the NICA plan,

as provided in the NICA brochure, was satisfactory to invoke the immunity

and exclusivity provisions of the NICA plan. Id. In concluding it was

insufficie nt, the Second District Court of Appeal provided as follows:

The Galen analysis of the purpose of the statuteÔs

notice provision is also applicable to the question of

the sufficiency of notice. Applying Galen to the

instant case, if the notice given [Pet itioner] is to

meet the intent of the statute, it would be

necessary to notify her that her doctor was, in fact,

a participant. The brochures that she received from

the clinic on behalf of the physician and from [the

hospital] only explained the existence of the Plan

and that it would be applicable to her if her

physician was a Plan participant. Without further

notification that her physician was indeed a Plan

participant, [Petitioner] would be unaware that she

needed to choose either to continue care with her

current physician - thus accepting the PlanÔs

coverage - or seek the services of a nonparticipating

physician - thereby reserving any rights she may

have to pursue a civil action. In Galen , the Florida

Supreme Court specifically qualified the notice that

sat isfies the intent of the statute as notice of

participation. Accordingly, we agree with the ALJ

that notice of the Plan as provided by the brochure,

even though it may comply with the literal wording

of the notice statute, is not sufficient to meet the

sta tuteÔs intent. To read the statute in such a way

as to not include the notice of participation would

result in a statutory interpretation requiring a

meaningless act that fails to accomplish the

purpose of the notice requirement.

Id.

5 1 . Against this le gal background, based on the Findings of Fact set forth

above, the undersigned concludes that Dr. Henry met her burden of

establishing that the notice requirements of section 766.316 were satisfied.

The undersigned concludes that notice of Dr. HenryÔs part icipation in NICA

and the NICA brochure were sufficiently provided to Ms. Gaeta upon the

initial visit to West Orange on December 22, 2016, at which time the

obstetrical provider - patient relationship was established. Ms. GaetaÔs

signature acknowledging rec eipt of the NICA brochure raised a rebuttable

presumption that the notice requirements have been met. § 766.316 , Fla.

Stat . Petitioners did not present sufficient evidence to overcome the

presumption.

5 2 . Although Dr. Henry was not, as represented in the NICA notice form,

a participating physician at the time the NICA notice form was provided and

signed, the undersigned concludes that this error was without harm or

prejudice to Petitioners. As noted above, the purpose of the statutory notice

requirement is to Ñ 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

preserving her civil remedies .Ò Here, at the time of the factual inaccuracy, the

notice language was overly inclusive, providing that all the physicians

(including Dr. Henry) at West Orange were participating physicians.

Accordingly, based on that information, Ms. Gaeta could have made the

choice of using an ob stetrician elsewhere that was not a NICA participant,

but did not do so. Moreover, the factual inaccuracy was cured within 10 days,

as Dr. Henry became a participating physician on January 1, 2017. Dr. Henry

was a participating physician at the time of her first obstetrical contact with

Ms. Gaeta and continued to be a participating physician through the time

when obstetrical services were delivered to Ms. Gaeta in the course of labor,

delivery or resuscitation in the immediate post - delivery period in a hosp ital.

5 3 . With respect to Health Central Hospital, the undersigned concludes ,

based on the Findings of Fact above, that Health Central Hospital provided a

NICA notice form and NICA brochure to Ms. Gaeta upon admission on

July 21, 2017. Again, Ms. GaetaÔ s signature acknowledging receipt of NICA

information raised a rebuttable presumption that the notice requirements

have been met. § 766.316 , Fla. Stat . The undersigned concludes that the

presumption was rebutted.

5 4 . The Florida Supreme Court has held tha t Ñas a condition precedent to

invoking [the Plan] as a patientÔs exclusive remedy, healthcare providers

must, when practicable, give their obstetrical patients notice of the

participation in the plan a reasonable time prior to delivery.Ò Galen , 696 So.

2d at 309. In support of this holding, the court provided the following:

We agree with the district courts that the only

logical reading of the statu t e is that before an

obstetrical patientÔs remedy is limited by the NICA

plan, the patient must be given pre - delivery notice

of the health care providerÔs participation in the

plan. . . . In order to effectuate this purpose a NICA

participant must give a patient notice of the Ñno -

fault alternative for birth - related neurological

injuriesÒ a reasonable time prior t o delivery, when

practicable.

Id ., at 309 - 10.

5 5 . In Weeks v. Florida Birth - Related Neurological Injury Compensation

Association , 977 So. 2d 616, 618 - 19 (Fla. 5th DCA 2008), the court confronted

the timing of NICA notice and held that Ñthe formation of t he provider -

obstetrical patient relationship is what triggers the obligation to furnish the

notice.Ò Specifically, the Weeks court held as follows:

In summary, we hold that the NICA notice must be

given within a reasonable time after the provider -

obstetri cal patient relationship begins, unless the

occasion of the commencement of the relationship

involves a patient who presents in an Ñemergency

medical condition,Ò as defined by the statute, or

unless the provision of notice is otherwise Ñnot

practicable.Ò W hen the patient first becomes an

Ñobstetrical patientÒ of the provider and what

constitutes a Ñreasonable timeÒ 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.

Weeks , 977 So. 2d at 619 - 20.

5 6 . While the Weeks court acknowledged that the relationship and timing

are questions of fact, the court noted that Ña central consideration should be

whether a 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.Ò Id ., at 19.

5 7 . Several appellate decisions have recog nized that delivery pre -

registration can mark an appropriate occasion for the hospital to provide the

patient notice of participation in the Plan within a reasonable time. See

Weeks , 977 So. 2d at 619 (concluding mother became an obstetrical patient of

hos pital well before delivery when she pre - registered for delivery at hospital

and was actually admitted to hospital for prenatal care several weeks prior to

delivery); Tarpon Springs Hosp. Found., Inc. v. Anderson , 34 So. 3d 742 (Fla.

2d DCA 2010)(affirming ALJÔs findings that delivery pre - registration at the

hospital (weeks prior to delivery) marked the beginning of the patient -

provider relationship and the failure to provide notice until the day prior to

delivery was not reasonable under the circumstances); Nw. Med. Ctr. v. Ortiz ,

920 So. 2d 781 (Fla. 4th DCA 2006) (affirming ALJÔs findings that hospital

knew patient intended to deliver at hospital and had reasonable opportunity

to provide NICA notice when patient completed delivery pre - registration

months pr ior to delivery); Univ. of Miami v. Ruiz , 916 So. 2d 865 (Fla. 3d

DCA 2005)(concluding that patientÔs pre - registration three weeks ahead of

maternity admission Ñclearly manifested an intent to the deliver at that

hospitalÒ and that pre - registration provide d a reasonable opportunity to

furnish NICA notice).

5 8 . 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 court affirmed a trial court decision fi nding the hospital had

failed to meet the notice requirement. The Athey courtÔs reasoning hinged

upon the hospitalÔs knowledge of the patients prior to their presentation to

the hospital for delivery. In the consolidated case, the obstetrical patients

were Medicaid patients who substantially received their prenatal care at a

health clinic, which, in turn, had a contract with the hospital to provide

maternity services, and referred the patients to the hospital for prenatal

ultrasound procedures and delivery. Athey , 699 So. 2d at 48. Each patient

presented to the hospital in labor; however, the hospital had not provided

NICA notice prior to delivery. Id. Although the patients had not pre -

registered for delivery at the hospital, the court held that the hospital had a

reasonable opportunity to provide NICA notice where, weeks prior to

delivery, the hospital Ñperformed prenatal ultrasound procedures on these

patients and had knowledge that these patients would deliver their babies at

[the hospital].Ò

5 9 . Under fac ts similar to those presented here, final orders from this

tribunal have addressed the NICA notice. In Pillonato v. Florida Birth -

Related Neurological Injury Compensation Ass ociatio n, Case No. 14 - 1980N

(Fla. DOAH June 24, 2015), affÔd per curiam , Wellingto n Regional Med ical

C en t e r v. Pillonato , 200 So. 3d 70 (Fla. 4th DCA 2016), the mother presented

to the hospital on several occasions prior to delivery. On the second visit, she

was 26+ weeksÔ gestation and had complaints of abdominal cramping. She

was seen in the emergency room and Ñhooked up to a fetal monitor and

received a labor check and sonogram.Ò Pillonato , FO at 9.

60 . The ALJ found that, during this visit, the mother had no recollection

of informing the hospital of her intention to deliver at that h ospital. Id . The

ALJ also found that the mother was aware of her options to pre - register, and

to take a tour of the hospitalÔs labor and delivery department prior to delivery

(both of which, pursuant to hospital policy, would have resulted in the

hospital providing NICA notice), but did not avail herself of those options. Id .,

FO at 10 - 11.

6 1 . The mother ultimately presented to the labor and delivery section of

the hospital with contractions and was provided with the NICA brochure

within 20 minutes of admis sion. Id. , FO at 11. The ALJ concluded that the

hospital - obstetrical patient relationship began on the second visit, because

the hospital staff was aware the patient was pregnant, and presented with

obstetrical issues. Id . , FO at 18. Accordingly, the ALJ c oncluded that the

notice provided by the hospital upon admission for labor and delivery was not

provided in a reasonable time, and, therefore, insufficient. Id ., FO at 19.

6 2 . In Bastien v. Florida Birth - Related Neurological Injury Compensation

Associatio n , Case No. 17 - 1830N (Fla. DOAH Feb. 16, 2018), the ALJ found

that the hospital provider obstetrical - patient relationship developed when the

obstetrician sent the patient to the hospital for prenatal testing in the

hospitalÔs labor and delivery department, and during that visit, the patient

was scheduled to be induced several days later. The ALJ concluded that the

hospitalÔs failure to furnish notice within a reasonable time thereafter was

not excused by the subsequent emergency (presenting in labor to deli ver the

baby). Bastien , FO at 15.

6 3 . In Quarrie v. Florida Birth - Related Neurological Injury Compensation

Association , Case No. 20 - 0818N (Fla. DOAH Oct. 10, 2020), it was recently

concluded that the intervenor hospital had failed to provide timely notice in

compliance with section 766.316. The determination was premised on the

finding that a hospital provider - obstetrical patient relationship had begun

well prior to delivery with significant obstetrical contacts with the hospital;

however, the hospital did not provide notice within a reasonable time

thereafter.

6 4 . Unlike the claimant in Quarrie , here, Ms. Gaeta did not have any

contact with Health Central HospitalÔs Labor and Delivery department prior

to her actual admission to the hospital for an inductio n. Ms. GaetaÔs pre -

delivery contacts with Health Central Hospital solely concerned outpatient

ultrasounds conducted in Outpatient Radiology. Although

Dr. Henry only delivered at Health Central Hospital during the relevant time

period, the evidence does no t support a finding that Health Central Hospital

had knowledge that Ms. Gaeta would deliver there. Under the specific facts of

this case, the undersigned finds that Ms. GaetaÔs limited pre - delivery

contacts were insufficient to establish the hospital provi der - obstetrical

patient relationship prior to her admission on July 21, 2017.

6 5 . While it appears undisputed that, on June 28, 2017, West Orange

faxed several consent forms to Health Central Hospital related to Ms. GaetaÔs

planned induction, the undersig ned does not construe the same as

tantamount to preregistration. Even assuming, arguendo , that upon receipt

of the documents Health Central Hospital placed Ms. Gaeta on the schedule

for an induction, the undersigned declines to conclude that, by this sole act,

the hospital had knowledge that Ms. Gaeta would, in fact, deliver at Health

Central Hospital. It is further concluded that the faxing of consent forms by

West Orange to Health Central Hospital, without more, did not establish a

provider - obstetrical pa tient relationship.

6 6 . The undersigned further concludes that Health Central Hospital

provided the NICA notice form and brochure to Ms. Gaeta within two hours

of her admission to the hospital. Under the specific facts of this case, the

undersigned conclu des that the same was provided within a reasonable time

after the hospital provider - obstetrical patient began.

6 7 . It is further concluded, however, that the NICA notice form provided

by Health Central Hospital to Ms. Gaeta was facially insufficient. Whil e it

notified Ms. Gaeta of the existence of the NICA Plan, the NICA notice form

failed to notify her that Health Central Hospital was a participant in the

NICA plan. The available record fails to present sufficient evidence to

support a finding or conclusi on that Ms. Gaeta was otherwise notified of

Health Central HospitalÔs participation in the Plan.

6 8 . In summary, it is concluded that, based on the Findings of Fact set

forth above, that the hospital provider - obstetrical patient relationship (by

and betwe en Health Central Hospital and Ms. Gaeta) did not begin until

Ms. Gaeta presented for her planned induction on July 21, 2017. The

undersigned further concludes that, on July 21, 2017, Ms. Gaeta received

Health Central HospitalÔs NICA notice form and the b rochure furnished by

NICA, and that the same were provided within a reasonable time. However,

as the Health CentralÔs NICA notice form did not notify Ms. Gaeta that it was

a participant in the NICA plan, Health Central Hospital failed to satisfy the

requir ements of section 766.316.

C ONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that:

1. Intervenor Roseanne M. Henry, M.D. , satisfied the notice requirements

of section 766.316.

2. Intervenor Health Central Hospital fa iled to satisfy the notice

requirements of section 766.316.

3. Having previously determined the claim to be compensable, Petitioners

shall within thirty (30) days of this O rder provide written notice of whether

Petitioners Ô desire a hearing to determine t he issue of an award pursuant to

section 766.31 .

D ONE A ND O RDERED this 2 2nd day of January, 2021 , in Tallahassee, Leon

County, Florida.

S

T ODD P. R ESAVAGE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of January, 2021.

C OPIES F URNISHED :

(via certified mail)

Amie Rice, Investigation Manager Shevaun L. Harris , Acting Secretary

Consumer Services Unit Health Quality Assurance

Department of Health Agency for Health Care Administration

4052 Bald Cypress Way, Bin C - 75 2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32399 - 3275 Tallahassee, Florida 32308

(Certified No. 7020 1290 0001 6309 8792 ) (Certifie d No. 7019 2280 0001 7689 4927 )

Kenney Shipley, Executive Director Jonathan T. Gilbert, Esquire

Florida Birth - Related Neurological Colling, Gilbert, Wright & Carter, LLC

Injury Compensation Association Suite 830

Suite 1 801 North Orange Avenue

2360 Christopher Place Orlando, Florida 32801

Tallahassee, Florida 32308 (Certified No. 7019 2280 0001 7689 4965 )

(Certifie d No. 7019 2280 0001 7689 4934 )

David W. Black, Esquire Michael R. D'Lugo, Esquire

Frank, Weinberg & Black, P.L. Wicker, Smith, O'Hara, McCo y, & Ford,

7805 Southwest 6th Court P.A.

Plantation, Florida 33324 Post Office Box 2753

(Certified No. 7019 2280 0001 7689 4941 ) Orlando, Florida 32802

(Certified No. 7019 2280 0001 7689 4972 )

Ronald S. Gilbert, Esquire

Colling Gilbert Wright & Carter, LLC Joseph P. Menello, Esquire

Suite 830 Wicker, Smith, O'Hara, McCoy , & Ford,

8 01 North Orange Avenue P.A.

Orlando, Florida 32801 Suite 1000

(Certified No. 7019 2280 0001 7689 4958 ) 390 North Orange Avenue

Orlando, Florida 32801

(Certified No. 7019 2280 0001 7689 4989 )

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 Flor ida 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,

ac companied by filing fees prescribed by law, with the clerk of the

appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla.

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

(Fla. 1st DCA 1992).