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Northwest Medical Center11/30/2005
Northwest Medical Center and Dr. Alison Clarke De Souza appeal an administrative order finding that appellee, Mrs. Ortiz, was not given notice of its participation in the Florida Birth-Related Neurological Injury Compensation Plan, as required by section 766.316, Florida Statutes (2000). They contend that because she was admitted in an emergency medical condition, notice was not required. However, we agree with the trial court that Northwest had an opportunity to give notice prior to Mrs. Ortiz's arrival at the hospital for delivery. By failing to give Mrs. Ortiz such notice when it had the opportunity to do so, Northwest failed to comply with the statute.
The Ortizes, individually and on behalf of their minor child, sued Northwest and Dr. De Souza for various counts of medical negligence during Mrs. Ortiz's labor, resulting in their child being born with brain damage. Northwest filed a motion to abate the action on the ground that the Ortizes were required to seek a remedy only under the Florida Birth-Related Neurological Injury Compensation Plan ("NICA"), sections 766.301 to 766.316, Florida Statutes. Such remedy is exclusive unless Mrs. Ortiz did not receive notice of the hospital's participation in NICA in accordance with section 766.316, Florida Statutes. See Galen of Fla., Inc. v. Braniff, 696 So. 2d 308, 309-10 (Fla. 1997); Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 880 So. 2d 1253, 1255 (Fla. 1st DCA 2004). The trial court abated the matter to permit an administrative law judge to determine the issue.
Thereafter, plaintiffs filed a petition in the Division of Administrative Hearings against the Florida Birth-Related Neurological Injury Compensation Association to determine whether their claim was compensable under NICA. They argued that the defendants failed to provide Mrs. Ortiz with notice in accordance with the act, thus failing to invoke NICA as plaintiffs' exclusive remedy. Northwest and Dr. De Souza intervened in the action.
An administrative hearing was held on the petition. Prior to the hearing, the parties stipulated that Dr. De Souza is not a participating physician in NICA. The Association also stipulated that the child's injury was compensable under NICA and the other parties agreed not to contest compensability of the injury.
At the hearing, Mrs. Ortiz testified that she chose Northwest for her delivery because her physician performed deliveries there. She pre-registered as a patient at Northwest on August 25, 2000, giving it pertinent pre-admission information. Northwest provided her with the Hospital's Conditions and Consent for Treatment form as well as an Advance Directives booklet and Northwest's Patient handbook. She signed for some of the materials. She was never told during pre-registration about NICA or the hospital's participation in NICA.
On December 17, 2000, around 6:00 p.m., Mrs. Ortiz went to the hospital because she was having soft contractions. Later she was given an I.V. and oxygen. Around two hours after admission, she was given forms to sign for the performance of a cesarean delivery. Not until 11:00 p.m. did the nurse give Mrs. Ortiz a NICA form to sign. She was not given a brochure about NICA. She said she did not know she was signing a form about NICA, believing it to relate to surgery or anesthesia. Shortly thereafter, a cesarean was performed as Mrs. Ortiz was in critical condition. The child was born brain-damaged.
The nurse attending Mrs. Ortiz did not speak Spanish and had difficulty communicating with Mrs. Ortiz, a Spanish speaker. While the nurse did witness Mrs. Ortiz signing the consent to anesthesia and surgery, she did not witness her signing the NICA form, nor does s
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