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Orlando Regional Healthcare System9/2/2005
livered her baby under emergency circumstances, she had made three previous visits to the hospital with concerns about her pregnancy and during said visits she was not provided with the statutory notice. The ALJ concluded that notice should have been given to Alexander by ORHS during one of her three previous visits and that ORHS's failure to do so was in violation of NICA, regardless of the fact that eventually Alexander delivered under emergency conditions.
An ALJ's interpretation of NICA is reviewed by this court de novo. Nam v. Florida Birth-Related Neurological Injury Comp. Ass'n, 813 So.2d 155 (Fla. 4th DCA 2002). Applying de novo review, we hold that the ALJ erred, as a matter of law, in failing to enforce the clear language of section 766.316, NICA's notice statute. To that end, the statute states specifically that "notice need not be given to a patient when the patient has an emergency medical condition ... or when notice is not practicable." The ALJ misapplied the law as expressed in the clear language of the statute by interpreting the statute to require both (1) a finding of an emergency medical condition, and (2) a finding that the provision of notice was not practicable. We hold that the statute contains two distinct exceptions, each of which independently provides an exception to the pre-delivery notice requirement. As such, ORHS was excused from providing notice to Alexander when she arrived at the ORHS under emergency conditions, and her previous visits to the hospital during her pregnancy did not negate this clear statutory exemption.
On cross-appeal, Alexander challenges the ALJ's ruling of compensability, arguing that the ruling should be reversed because she provided sufficient competent evidence to demonstrate that Elliott's injuries did not occur during labor, delivery or resuscitation. We disagree.
The ALJ recognized that, pursuant to section 766.309(1)(a) of the Florida Statutes, once it is established that a newborn suffered an injury to the brain caused by oxygen deprivation that rendered the child permanently and substantially mentally and physically impaired, then a rebuttable presumption arises that the injury is a "birth-related neurological injury" which is covered under NICA. In concluding that the presumption had not been rebutted, the ALJ wrote:
18. The medical records and the testimony of the physicians and other witnesses offered by the parties have been carefully considered. So considered, it must be concluded that there was insufficient credible evidence to resolve that Ms. Alexander was not in labor following the abruption and prior to delivery, or that the oxygen deprivation Elliott suffered during the course of delivery and resuscitation, before an effective cardiac output and adequate oxygenation were restored, did not contribute significantly to his brain injury.
19. In so concluding, it is noted that the credible proof demonstrates that Elliott's brain injury was caused by oxygen deprivation, secondary to placental abruption (that was initially partial, and at some unknown point complete); that such deprivation started at some time following the abruption (when fetal reserves were lost, and the baby's ability to compensate for the blood loss failed) and continued until he was resuscitated, following delivery; and that, given the record in this case, one cannot reliably resolve on that time line when (whether immediately following the onset of the abruption or at some other definitive point through resuscitation) hypoxia of a sufficient magnitude occurred to account for the severe brain injury Elliott suffered.
20. Moreover, with regard to the issue of labor, the medical records are limited in scope
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