The Fourth District’s recent decision in Wellington Regional Medical Center v. Giovanni Pillonato, 2016 WL 4548485 (Fla. 4th DCA Sept. 1, 2016), strikes a blow against the assault on the right of recovery for obstetrical patients whose newborn suffers catastrophic brain injuries during childbirth. It does so by showing that “NICA Notice” must be provided by a hospital upon the formation of the “provider-obstetrical patient relationship,” which may occur during an obstetrical patient’s emergency room visit to the hospital, so long as that visit was “obstetrical in nature”—notwithstanding whether the obstetrical patient provided the hospital with actual knowledge of her intent to deliver at the hospital.
Background: In the latter part of last century, OB/GYN healthcare providers were, apparently, being taxed too high for medical malpractice insurance because of the damage recoveries obtained in lawsuits involving brain injuries suffered by newborns during childbirth. In response, the Florida Legislature passed into law the Florida Birth-Related Neurological Injury Compensation Plan (the “NICA Plan”), which paralleled a similar plan adopted in the State of Virginia. Under the NICA Plan—as carried out by the Florida Birth-Related Neurological Injury Compensation Association (“NICA”)—the remedies of a newborn who suffers catastrophic brain injuries during childbirth are limited to the statutorily created damages caps provided under the NICA Plan. These damages caps pale in comparison to the civil remedies a newborn could obtain for his or her catastrophic brain injuries. However, to obtain these protections under the NICA Plan, a healthcare provider (including hospitals) must satisfy the notice requirements under the NICA Plan, as delineated in section 766.316, Florida Statutes (“NICA Notice”).
What are Section 766.316’s Notice Requirements?: As part of a “legislative compromise” for the abrogation of an obstetrical patient’s civil remedies for brain injuries sustained during childbirth, the Florida Legislature, via section 766.316, requires that, to invoke the protections of the NICA Plan, “each hospital with a participating physician on its staff and each participating physician . . . shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries.” Pursuant to this statutory language, the Florida Supreme Court, in Galen of Fla. v. Braniff, 696 So. 2d 308 (Fla. 1997), held that to obtain the NICA Plan protections, a healthcare provider or hospital must provide notice within a “reasonable time prior to delivery, when practicable.” The Court further held that the determination regarding the reasonableness of NICA Notice is done on “a case-by-case basis” and, hence, will varying depending on the circumstances of each case. The guiding principal for this case-by-case determination is whether said NICA Notice provided the “obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies.”
Formation of the “Provider-Obstetrical Patient Relationship” Triggers the Notice Requirement: Post-Galen, questions remained as to when the NICA Notice requirement is “triggered,” i.e., at what point in time does a healthcare provider or hospital’s responsibility to provide NICA Notice begin. The Fifth District in Weeks v. Fla. Birth-Related Neurological, 977 So. 2d 616 (Fla. 5th DCA 2008) provided what appears to be the controlling determination regarding this issue. There, the Fifth District emphasized section 766.316’s following language: “Notice to obstetrical patients of participation in the plan,” and “shall provide notice to the obstetrical patients.” In construing this language to logically effectuate section 766.316’s notice requirement, the Fifth District stated: “What this emphasized language clearly expresses to us is that the formation of the provider-obstetrical patient relationship is what triggers the obligation to furnish notice.” Evidencing that Weeks is the controlling authority on this issue is that the aforementioned interpretation was subsequently adopted by the Second District in Tarpon Springs Hospital Foundation v. Anderson, 34 So. 3d 742 (Fla. 2d DCA 2010). There, in relying on Weeks, the district court stated: “Thus, the establishment of the patient-provider relationship well before delivery triggers the obligation to furnish the patient with notice within a reasonable time.”
Thus, in accordance with the language of section 766.316, a health care provider’s obligation to furnish NICA notice is triggered upon the formation of the provider-obstetrical patient relationship. Furthermore, the Weeks court, in following Galen’s “case-by-case” standard, emphasized that “[t]he determination of when this relationship commences is a question of fact” that “depends upon the circumstances,” with “a central consideration” being “whether the patient received the notice in sufficient time to make a meaningful choice of whether to select another provider prior to delivery.” The court emphasized that this is “a primary purpose of the notice requirement.”
Question Clarified by Pinto- When is the “Provider-Obstetrical Patient Relationship” (the “Relationship”) Formed?: The central issue in Wellington Regional was when the Relationship was formed between a patient and a hospital In the Administrative Law Judge’s decision below, she determined that the Relationship formed during an October 2011 emergency room visit that was, extensively, obstetrical in nature. The forms used were labeled “obstetrical,” and the obstetrical patient underwent extensive care and testing (as ordered by her OB/GYN) that was, without a doubt, obstetrical in nature. The patient, however, did not explicitly inform the hospital that she planned to deliver at the hospital. Despite another obstetrical outpatient visit in December 2011, the hospital did not provide NICA Notice until the day of delivery (in January 2012), at which time the newborn infant suffered brain injuries. The ALJ held that because the Relationship formed during the October 2011 obstetrical visit, the NICA Notice was insufficient and the hospital was not entitled to the protections of the NICA Plan.
On appeal, the hospital contended that because the patient did not provide the hospital with actual knowledge of her intent to deliver at its facility, the NICA Notice requirement was not triggered during the October 2011 visit. The patient contended that because the October 2011 visit was obstetrical nature, the Relationship formed during the October 2011 visit and the day of delivery notice was insufficient.
Fourth District’s Decision and Takeaway: The Fourth District’s decision in Wellington Regional was a “per curiam affirmance” without written opinion (a “PCA”) of the ALJ’s decision below. As a PCA, it is not considered controlling precedent. But, the decision is highly persuasive in that it did affirm the ALJ’s determination that a patient’s visit to a hospital emergency room, when obstetrical in nature, forms the Relationship and triggers the NICA notice requirement—even if the patient does not provide the hospital with actual knowledge of her intent to deliver. This gives greater protections for obstetrical patients, as it requires that hospitals, when providing obstetrical care, must provide the obstetrical patient with NICA Notice—placing the onus on the hospital to provide an obstetrical patient with NICA Notice as soon as obstetrical care is provided. This should compel hospitals to be more vigilant in providing NICA Notice immediately upon providing obstetrical care. Perhaps, it may even persuade hospitals to take a moment and ask the obstetrical patient if they plan to deliver at the hospital during the obstetrical visit, whereupon it is made clear as to whether NICA Notice must or must not be provided.
Anthony M. Stella, Esq.
Appellate & Litigation Support Attorney
Lytal, Reiter, Smith, Ivey & Fronrath LLP
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West Palm Beach, FL 33401
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