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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 administrative law judge n. a professional hearing officer who works for the government to preside over hearings and appeals involving governmental agencies. They are generally experienced in the particular subject matter of the agency involved or of several agencies.  found that the claim was not covered not covered Health care adjective Referring to a procedure, test or other health service to which a policy holder or insurance beneficiary is not entitled under the terms of the policy or payment system–eg, Medicare. Cf Covered.  under the law. An appellate court A court having jurisdiction to review decisions of a trial-level or other lower court.

An unsuccessful party in a lawsuit must file an appeal with an appellate court in order to have the decision reviewed.
 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 spinal cord, the part of the nervous system occupying the hollow interior (vertebral canal) of the series of vertebrae that form the spinal column, technically known as the vertebral column.  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 resuscitation /re·sus·ci·ta·tion/ (-sus?i-ta´shun) restoration to life of one apparently dead.

cardiopulmonary 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 Orlando Regional Healthcare is a system of non-profit hospitals serving the Greater Orlando area. There are nine hospitals in the system in six locations.

The headquarters for the system are located on the campus of Orlando Regional Medical Center south of Downtown Orlando,
 System (ORHS ORHS Oak Ridge High School (USA)
ORHS Oyster River High School (Durham, NH) 
) appealed an Administrative Law administrative law, law governing the powers and processes of administrative agencies. The term is sometimes used also of law (i.e., rules, regulations) developed by agencies in the course of their operation.  Judge's (ALJ ALJ Administrative Law Judge
ALJ Association for Legal Justice (Northern Ireland) 
) 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 NICA National Institute of Circus Arts
NICA National Intelligence Coordinating Agency (Philippines)
NICA National Ice Carving Association
NICA National Interfaith Coalition on Aging
NICA Netherlands-Indies Civil Administration
 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 Custodial Care

Non-medical care that helps individuals with his or her activities of daily living, preparation of special diets and self-administration of medication not requiring constant attention of medical personnel.
 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 com·pen·sa·ble  
Being such as to entitle or warrant compensation: compensable injuries.

Adj. 1.
. 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 void for vagueness adj. referring to a statute defining a crime which is so vague that a reasonable person of at least average intelligence could not determine what elements constitute the crime.  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
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