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Northwest Medical Center11/30/2005
ourt also determined that " hether a health care provider was in a position to give a patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis." Id.
Northwest contends that the statute does not require that notice be given at the first available opportunity or at any time prior to when the mother arrives at the hospital for delivery. It cites the provision of section 766.316 which states, "Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable." Because Mrs. Ortiz arrived at the hospital in an emergency medical condition, it claims it was not required to give her notice at that time. Thus, Northwest argues that the trial court erred in concluding that Northwest should have provided Mrs. Ortiz with notice when she pre-registered at the hospital. We disagree.
In Board of Regents v. Athey, 694 So. 2d 46, 50-51 (Fla. 1st DCA 1997), in a non-emergency admission situation, the court held "that health care providers who have a reasonable opportunity to give notice and fail to give predelivery notice under section 766.316, will lose their NICA exclusivity regardless of whether the circumstances precluded the patient making an effective choice of provider at the time the notice was provided." There, the health care providers argued that, although notice was not given of NICA participation, the patient's ability to make an informed choice was not caused by the lack of notice but by the lack of other health care providers available to treat Medicaid patients with medical complications. The court rejected that reasoning, noting that " eeks prior to these obstetrical patients presenting for delivery, UMC performed prenatal ultrasound procedures for these patients and had knowledge that these patients would deliver their babies at UMC. In addition, at the time these patients presented for delivery, UMC had the opportunity to obtain other written consents, but failed to provide the NICA notice." Id. at 51. Thus, the court looked to a time prior to when the patients actually arrived at the hospital for delivery to determine whether the NICA participants had a reasonable opportunity to provide notice.
Admittedly, Athey did not involve an admission for an emergency medical condition. However, the court's reasoning hinges on the hospital's knowledge of the patient long before presentation for delivery. Similarly, Northwest knew that Mrs. Ortiz intended to deliver her child there months before her actual admission. At that time she was given substantial information regarding her medical care at the hospital and she signed several consent forms. If the purpose of the notice requirement is to give the patient the choice to choose a NICA facility or not, hospitals 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. Therefore, by failing to give notice of NICA participation a reasonable time prior to delivery, although able to do so, Northwest lost the protection of NICA, and the Ortizes are entitled to pursue their civil remedies.
Northwest's argument that notice given by the administrative staff at the time of inpatient admission would not be as effective as that given by its labor and delivery nurse, as is its current policy, is completely without merit on this record. Those nurses are not trained on NICA and do not answer the patients' questions about it. When questioned, nurses refer patients to the 800 number printed on the NICA form. W
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