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Birth-related neurological injury fund notice issue.

CASE ON POINT: Orlando Reg. Healthcare Sys. v. Alexander, 909 So.2d 582--FL (2005)

ISSUE: Florida is one of the states that have recognized the need for a birth-related neurological injury law and fund. In this unusual case a mother whose baby was born with serious neurological injuries sought compensation under the applicable law. An administrative law judge found that the claim was not covered under the law. An appellate court found there was a question as to whether the hospital had given notice of its participation in the fund as required by law.

CASE FACTS: This case arose from administrative proceedings involving a claim under Florida's Birth-Related Neurological Injury Compensation Act (NICAS). The term means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighting at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders an infant permanently and substantially mentally and physically impaired. The definition applies to live births only and shall not include disability or death caused by generic or congenital abnormality. Specifically Orlando Regional Healthcare System (ORHS) appealed an Administrative Law Judge's (ALJ) order on compensability and notice. Dajuanda Alexander, the mother of a newborn, filed an appeal challenging the ALJ's order on compensability and notice.

COURT'S OPINION: The District Court of Appeal of Florida concluded that the ALJ's ruling that ORHS was not exempted from providing pre-delivery notice was error. The court reversed that portion of the ALJ's order. In all other respects, the court affirmed the ALJ's order. The court began by briefly summarizing the relevant law NICA provides an exclusive remedy in the form of compensation for certain statutorily-defined birth-related neurological injuries on a no-fault basis. The court noted that it was the intent of the legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. The statute applied only to birth-related neurological injuries such as the injury involved in this case.

LEGAL COMMENTARY: The court defined the term as follows: "Birth-related neurological injury means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation, or in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth cause by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. The court noted that the definition was specifically tailored to apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. The ALJ shall hear and determine all claims filed pursuant to the applicable law and shall exercise the full power and authority granted to her or him in the law, as necessary, to carry out the proposed the law.. The ALJ has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations required under the law have been made by an ALJ. If the ALJ determines that the claimant is entitled is entitled to compensation, or if the claimant accepts an award, no civil action may be brought or continued in violation of the exclusiveness of the remedy provisions of the applicable state law. If it is determined that a claim filed under the law is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law. Of particular importance to the instant appeal, NICA requires that healthcare providers demonstrate that they gave pre-delivery notice to their obstetrical patient of their participation in the NICA plan as a condition precedent to invoking NICA's exclusive remedy provision. The purpose of the pre-delivery notice is to allow a patient an opportunity to make an informed decision between hiring a healthcare provider who participates in the NICA plan and one which does not. Accordingly a provider's failure to provide a patient with the appropriate notice generally precludes the application of NICA's exclusive administrative remedy provisions. However, the court determined that the statue contained vague terms, specifically citing "labor", "substantial impairment", and "permanent injury." The court concluded that the terms were so vague as to permit the ALJ to "guess" at their meaning. The court held the law void for vagueness and thus unconstitutional.
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Title Annotation:Hospital Law Case of the Month
Author:Tammelleo, A. David
Publication:Hospital Law's Regan Report
Date:Sep 1, 2005
Words:787
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