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Orlando Regional Healthcare System9/2/2005
low the patient to make an informed choice between hiring a healthcare provider who participates in the NICA plan and hiring one who does not. Importantly, a healthcare provider's failure to provide a patient with the statutory notice generally precludes application of NICA's exclusive administrative remedy provision, thereby entitling such patients to proceed with medical malpractice actions against the healthcare provider for injuries arising from birth-related neurological injuries. Exceptions to this general rule exist only in instances when the patient has an emergency medical condition or when notice is not practicable. Section 766.316 of the Florida Statutes outlines the notice requirement as follows:
766.316. Notice to Obstetrical Patients of Participation in the Plan
Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's 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 medical condition as defined in s. 395.002(9)(b) or when notice is not practicable.
§ 766.316, Fla. Stat. (2003)(emphasis added).
The instant litigation began when Dajuanda Alexander, individually as well as in her capacity as the mother of Elliott Davis, filed a petition with the Division of Administrative Hearings (DOAH) against the Florida Birth-Related Neurological Injury Compensation Association (the Association) seeking a determination of "nonentitlement to NICA benefits." The petition explained that although Elliott (who was born in July 1999 at ORHS) suffered brain damage at the time of his birth, his injuries were not covered by NICA because his injuries were a result of medical negligence occurring at a time "before the presentation in labor and ultimate delivery," and because his prenatal care was provided by Dr. Jerome Adams, a non-participating physician.
DOAH served the Association with a copy of Alexander's petition. Upon review, the Association gave notice that it had determined that the claim was outside the parameters of NICA. The Association also requested an administrative hearing before an ALJ. ORHS and Dr. Adams filed a motion seeking to intervene in the proceedings before the ALJ, and both were granted intervenor status.
After an evidentiary hearing was conducted, the ALJ found that Elliott's injuries were birth-related neurological injuries under the terms of NICA. The ALJ further held that, while it was undisputed that Alexander had not received the statutorily-mandated pre-delivery notice from either her treating physicians (i.e., the hospital's emergency medical staff) or ORHS, the treating physicians were exempted from the statutory notice requirement because Alexander had been treated for an "emergency medical condition." See § 766.316, Fla. Stat. (2003). However, the ALJ further concluded that ORHS was not exempted from giving Alexander pre-delivery notice because, prior to the day Alexander arrived at the hospital and de
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