Did Florida's neurological birth injury fund apply?

CASE ON POINT: St. Vincent's Medical Center, Inc. v. Bennett, 2009 FL 1D07-5557 (8/21/2009)--FL

CASE FACTS: Tristan Bennett was born on September 26, 2001, at St. Vincent's Hospital in Jacksonville, Florida. Her birth was preceded by an automobile accident that morning involving her mother. Following the accident, the baby's mother was transported to a nearby hospital, Ed Fraser Memorial Hospital in Macdienny, Florida, where fetal testing was performed. A decision was made to transport the mother to St. Vincent's via helicopter. That same day, after the mother went into kidney failure, she underwent a caesarean section. The condition of the infant at the time of her delivery was a matter of controversy. Although the infant required manual resuscitation, her Apgar scores at birth, and within minutes of birth, were in the normal range. It was undisputed, however, that the infant experienced renal distress as well as liver damage. She was placed in the hospital's special care nursery. On October 3, 2001, while still in the special care nursery, the infant experienced pulmonary bleeding and then pulmonary arrest leading to multi-organ failure and seizure activity. She was later diagnosed with a neurological injury, cerebral palsy. The time the neurological injury was sustained remained a matter of controversy. It was only after the October 3 episode that the infant was examined by a pediatric neurologist. In 2006, the Bennetts filed suit in Circuit Court against their obstetrician, Dr. William Long, his professional association, St. Vincent's Hospital, and fourteen other defendants. The Circuit Court proceedings were abated fur a determination by the Division of Administrative Hearings (DOAH) as to whether the infant's injuries were covered under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Bennetts had already filed a petition with DOAH to determine compensation under the Plan. In their petition, the Bennetts described the child's condition at birth as follows: "By the time of her birth by cesarean section, Tristan Bennett had suffered an hypoxic ischemic event that caused permanent brain damage. Tristan Bennett then suffered further injury to her brain during the first several days of life, well after the immediate post-delivery resuscitative period." They argues in their petition that Dr. Long and St. Vincent's could not claim NICA immunity because the Bennetts did not receive adequate notice of the NICA Plan. The trial court granted the motion for abatement. At a DOAH, extensive medical records were introduced into evidence, although only two witnesses gave live testimony: the mother, Tammy Bennett, and Dr. Gary Hankins, a board certified obstetrician, whom the record reflected had expertise in neonatal encephalopathy and cerebral palsy and whose practice specialized in high risk pregnancies. It was the defendants' position that after the accident, but prior to and during the time of delivery, the infant suffered oxygen deprivation as a result of damage to the mother's placenta and that the pH level, sodium level and blood gases of the infant just prior to and at the time of delivery supported the existence of such a condition. The defendants also asserted that the infant suffered multi-organ damage, as a result of the oxygen deprivation which in turn caused the acute pulmonary arrest suffered several days later. Further, the appellants contended that neurological injury occurred before or at delivery. An Administrative Law Judge (ALJ) concluded that it was "more likely than not" that Tristan's profound neurologic impairments resulted from a brain injury cause by oxygen deprivation that occurred October 3, 2001, and not during labor, delivery, or resuscitation in the immediate post delivery period in the hospital. He concluded Tristan was not shown to have suffered a "Birth Related Neurological Injury" so as to qualify under Florida's Plan. The defendants appealed.

COURT'S OPINION: The Court of Appeals of Florida Reversed the order of the DOAH dismissing the petition. The case was remanded for further proceedings not inconsistent with the opinion of the court.

LEGAL COMMENTARY: As to the contention that the Act was applicable because the parties had stipulated that "Tristan ... suffered oxygen deprivation/asphyxia before she was delivered ...," the court noted that Tammy Bennett was never in labor. The court cited further stipulations between the Bennetts and the defendants, which led the court to conclude that Tristan's injuries were outside the scope of the Plan, and that therefore the Bennetts only recourse against those allegedly responsible for the injuries to Tristan were the defendants named in the case. A dissenting opinion was filed in which the dissenting judge noted that the Plan was a substitute for common law rights and liabilities, and accordingly, should be strictly construed.

The dissenting judge emphasized that the statutory presumption was important to the overall scheme of NICA, since the law was in derogation of common law.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.