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Orlando Regional Healthcare System9/2/2005
, given the emergent nature of Ms. Alexander's presentation, and insufficient to support a conclusion that Ms. Alexander was not in labor, at the time of placental abruption or thereafter. Notably, the brief fetal monitoring which occurred following Ms. Alexander's arrival at the hospital was insufficient to demonstrate that she was or was not in labor, that the titanic contraction she suffered precluded regular uterine contractions, and that a cervical examination was not performed. Consequently, any failure of the medical records to document the onset of regular uterine contractions, with progressive dilation and effacement of the cervix, does not provide compelling proof that Ms. Alexander was not in active labor, and any opinion that Ms. Alexander was not in active labor, based on the absence of clinical evidence in the records, is inadequate to rebut the presumption established by section 766.309(1)(a), Florida Statutes.
An ALJ's findings of fact are only reversible on appeal when they are not supported by competent substantial evidence in the record. Nagy v. Florida Birth-Related Neurological Injury Comp. Ass'n, 813 So.2d 155 (Fla. 4th DCA 2002). Here, the record supports the ALJ's findings.
Alexander also argues that the statutory presumption set forth in section 766.309(1)(a) is unconstitutional, both on its face and as applied to her. We disagree.
In her "as applied" challenge, Alexander claims that she presented sufficient evidence to overcome the statutory presumption, and therefore, it was unconstitutional for the ALJ to apply the presumption against her in this case. For the reasons set forth above with regard to the sufficiency of the evidence, we reject this argument as meritless.
As for her "on its face" challenge, Alexander claims that sections 766.309 and 766.302 of the Florida Statutes are unconstitutional because the statutes contain vague terms, specifically citing to the terms "labor", "substantial impairment", and "permanent injury".
"The test to determine whether a statute is unconstitutionally vague is whether people of common understanding and intelligence must necessarily guess at its meaning." Beverly Enterprises-Florida, Inc., v. McVey, 739 So.2d 646, 648 (Fla. 2d DCA 1999). A statute is unconstitutionally vague
if it fails to provide a person of ordinary intelligence with a reasonable opportunity to know what is prohibited, and is written in a manner that encourages or permits arbitrary or discriminatory enforcement. However, imprecise language does not render a statute fatally vague, so long as the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices." [People v. Foley, 731 N.E. 2d 123, 130 (NY 2000)]. And if a reasonable and practical construction can be given to the language of a statute, or its terms made reasonably certain by reference to other definable sources, it will not be held void for vagueness.
Cashatt v. State, 873 So.2d 430, 435 (Fla. 1st DCA 2004).
The terms "labor", "substantial impairment", and "permanent injury", as set forth in the NICA statutes are not so vague as to permit the ALJ to "guess" at their meaning. Rather, these terms are certain enough that a reasonable and practical construction can be given to the language by reference to other definable sources, such as medical literature. As such, the statutes are not unconstitutional on their faces.
AFFIRMED in part, REVERSED in part.
PETERSON and ORFINGER, JJ., concur.
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