FL: birth-related neurological injury immunity: immunity for dr. who gave pt. notice under act.CASE FACTS: On December 18, 2001, Kimberly Petersen was admitted to Tallahassee Memorial Regional Medical center for pain associated with her pregnancy. Kimberly was monitored and administered several medications. On December 20, 2001, Kimberly's baby (Jennifer) had a sudden drop in both fetal Heart rate fetal heart rate Obstetrics A rate which, in the non-stressed fetus, reflects cardioaccelerator and cardiodecelerator reflexes; analysis of the FHR requires evaluation of a baseline FHR between uterine contractions or periodic changes in the FHR and non-periodic, ad blood pressure. Dr. Jana Forsthoefel performed an immediate cesarean section cesarean section (sĭzâr`ēən), delivery of an infant by surgical removal from the uterus through an abdominal incision. The operation is of ancient origin: indeed, the name derives from the legend that Julius Caesar was born in this . During the procedure, serious complications arose. Jon and Kimberly Petersen, individually, and as parents and natural guardians of their daughter, Jennifer, filed a two-count medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. suit against the hospital and Dr. Forsthoefel for injuries allegedly sustained by Jennifer during her birth. The Petersens alleged that Jennifer suffered birth asphyxia asphyxia (ăsfĭk`sēə), deficiency of oxygen and excess of carbon dioxide in the blood and body tissues. Asphyxia, often referred to as suffocation, usually results from an interruption of breathing due to mechanical blockage of the and has since been diagnosed with cerebral palsy cerebral palsy (sərē`brəl pôl`zē), disability caused by brain damage before or during birth or in the first years, resulting in a loss of voluntary muscular control and coordination. . They further alleged that negligence due to delayed diagnosis of fetal distress, failure to properly monitor the nature of the disorder causing Kimberly's symptomology, and failure to timely report or discuss the nature, extent, and severity of the cause of Kimberly's symptomology caused Jennifer's injuries. The Petersens filed a petition to determine compensability with the Florida Birth-Related Neurological Injury Compensation Association Both Dr. Forsthoefel and the hospital intervened in the administrative proceeding. The 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. (ALJ ALJ Administrative Law Judge ALJ Association for Legal Justice (Northern Ireland) ) entered a final order on compensability and notice on September 8, 2005. The ALJ determined that Jennifer did suffer a compensable com·pen·sa·ble adj. Being such as to entitle or warrant compensation: compensable injuries. Adj. 1. , birth-related neurological injury. The ALJ further concluded that Dr. Forsthoefel gave Mrs. Petersen pre-delivery notice of her status as a participating physician and was, therefore, entitled to immunity under the Act. However, the ALJ determined that the hospital failed to give her the required notice, nor was it excused from doing so. The ALJ awarded the Petersens lifetime medical expenses for Jennifer, plus $1000,000.00 and reasonable expenses incurred in connection with the filing of the claim The Petersens gave the hospital notice of their intention to reject the award under the Act and pursue their malpractice claim against it. The hospital filed an emergency petition for appointment of a guardian ad litem A guardian appointed by the court to represent the interests of Infants, the unborn, or incompetent persons in legal actions. Guardians are adults who are legally responsible for protecting the well-being and interests of their ward, who is usually a minor. for Jennifer claiming the Petersens suit was not in her best interest. The trial court denied the motion. The hospital appealed. COURT'S OPINION: The District Court of Appeal of Florida affirmed the decision of the lower court. The court held, inter alia [Latin, Among other things.] A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. , that a child's parents have the right to make decisions about their child's welfare without interference by third parties, especially those whose interests may be contrary to those of the child. Tallahassee Memorial Regional Medical Ctr., Inc. v. Petersen, No. 1DO5-5272 (Fla. App. 01/171200) S.o2d--FL 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. |
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