Jackson v. Florida Birth-Related Neurological
Annotate this Case
Download PDF
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2006
TRACIE TURNER JACKSON AND
ULYSSES B. JACKSON, ETC.,
Case No. 5D05-571
Appellant,
v.
FLORIDA BIRTH-RELATED
NEUROLOGICAL, ETC., ET AL,
Appellee.
________________________________/
Opinion filed March 24, 2006
Administrative Appeal from the Division
of Administrative Hearings.
Christian D. Searcy, Darryl L. Lewis and Rosalyn
Sia Baker-Barnes of Searcy Denney Scarola
Barnhart & Shipley, P.A., West Palm Beach, and
Philip M. Burlington, of Burlington & Rockenbach,
P.A., West Palm Beach, for Appellants.
Wilbur E. Brewton, Kelly B. Plante and Tana D.
Storey of Roetzel & Andress, L.P.A., Tallahassee for
Appellee NICA.
Henry W. Jewett, II, Jennings L. Hurt, III, Christian
P. Trowbridge of Rissman, Weisberg, Barrett, Hurt,
Donahue & McLain, P.A., Orlando, for Appellees
Alejandro J. Pena, M.D., Marc W. Bischof, M.D.,
and Physician Associates of Florida, Inc.
PALMER, J.
Tracie and Ulysses Jackson appeal the final order entered by the administrative
law judge (ALJ) on the issues of compensability and notice under Florida's Birth-Related
Neurological Injury Compensation Act (NICA).1 Finding no error, we affirm.
1
Section 766.301 through section 766.316 of the Florida Statutes (2004) sets
forth the provisions of Florida’s Birth-Related Neurological Injury Compensation Act.
NICA provides an exclusive remedy in the form of compensation for certain
statutorily defined birth-related neurological injuries on a no-fault basis. Of particular
importance to the instant appeal, NICA requires that physicians give pre-delivery notice
to their obstetrical patients of their participation in the NICA plan as a condition
precedent to said physicians invoking NICA as the patient's exclusive remedy. The
purpose of the pre-delivery notice requirement is to enable the patient to make an
informed choice between hiring an obstetrician who participates in the NICA plan and
hiring one who does not. Importantly, the failure of a physician to give the statutory predelivery notice to a patient operates to preclude application of NICA's exclusive remedy
provision, thereby entitling the patient to proceed with a medical malpractice lawsuit
against the physician for damages arising out of the birth of a child with birth-related
neurological injuries. Section 766.316 of the Florida Statutes outlines the notice
requirement as follows:
766.316. Notice to obstetrical patients of participation in
the plan
Each hospital with a participating physician on its staff and
each participating physician, other than residents, assistant
residents, and interns deemed to be participating physicians
under s. 766.314(4)(c), under the Florida Birth-Related
Neurological Injury Compensation Plan shall provide notice
to the obstetrical patients as to the limited no-fault alternative
for birth-related neurological injuries. Such notice shall be
provided on forms furnished by the association and shall
include a clear and concise explanation of a patient's rights
and limitations under the plan. The hospital or the
participating physician may elect to have the patient sign a
form acknowledging receipt of the notice form. Signature of
the patient acknowledging receipt of the notice form raises a
rebuttable presumption that the notice requirements of this
section have been met. Notice need not be given to a patient
when the patient has an emergency medical condition as
defined in s. 395.002(9)(b) or when notice is not practicable.
§766.316, Fla. Stat. (2004).
2
Here, Tracie and Ulysses Jackson, as parents of Jacqueline Jackson, filed a
petition with the Division of Administrative Hearings against the Florida Birth-Related
Neurological
Injury
Compensation
Association
(the
Association)
seeking
a
determination of their entitlement to receive NICA benefits. The petition explained that
Jacqueline suffered brain damage as a result of a birth-related neurological injury
sustained at the time of her birth. The petition asserted that Jacqueline's injuries were
compensable under NICA, but the attending physicians and the medical group which
employed them, Physician Associates of Florida, Inc. (hereinafter collectively referred to
as PAF), were not entitled to NICA immunity because they had failed to give Mrs.
Jackson proper pre-delivery notice of their participation in the NICA plan.
The parties stipulated that Jacqueline’s claim was compensable under NICA and
that the only issue to be resolved was whether adequate pre-delivery notice had been
given to Mrs. Jackson by PAF concerning its participation in NICA.
At the hearing, Nurse Liz Posey, an employee of PAF, testified that she informs
prenatal patients about the NICA plan by giving them a packet which includes a “Piece
of Mind for an Unexpected Problem” pamphlet. Said pamphlet is distributed by NICA to
physicians for the purpose of patient education and it outlines the nature of NICA
coverage and limitations. She also testified that she verbally advises all prenatal
patients that all of the physicians in PAF participate in the NICA plan.
Mrs. Jackson was also given a "Notice to Obstetric Patient" form, which was
signed by her. The purpose of the form was to verify the fact that Mrs. Jackson had
received the "Peace of Mind" pamphlet. The form signed by Mrs. Jackson had a blank
space where the individual names of PAF’s OB-GYN physicians were supposed to have
been filled in.
3
Upon review of the evidence, the ALJ ruled that, "based upon the competent and
substantial evidence, this court finds that Ms. Jackson was given sufficient notice during
… [her] initial office visit that all of the obstetricians employed by PAF participated in
NICA." This appeal timely followed.
The Jacksons argue that the ALJ erred, as a matter of law, in concluding that
PAF satisfied its burden of proving that proper pre-delivery statutory notice had been
provided to Mrs. Jackson. We disagree.
As noted above, section 766.316 of the Florida Statutes outlines NICA's notice
requirement. Under the statute, physicians are required to provide their patients with
notice on forms furnished by NICA which clearly explain the patient's rights and
limitations under the NICA plan. The statute further provides that, if the physician has
the patient sign a form acknowledging receipt of the NICA form, then a rebuttable
presumption arises indicating that the notice requirements of the statute have been met.
The ALJ properly recognized that NICA developed a pamphlet titled "Peace of
Mind for an Unexpected Problem." The pamphlet contains a clear and concise
explanation of a patient's rights and limitations under the NICA plan, as is required by
the terms of the statute. In addition, the pamphlet specifically states:
If your health care provider has provided you with a copy of
this informational form, your health care provider is placing
you on notice that one or more physician(s) at your health
care provider participates in the NICA Plan.
The ALJ then made the finding that the evidence was undisputed that Mrs. Jackson
received the "Peace of Mind" pamphlet during her initial prenatal visit to PAF as was
required under the statute. The ALJ also noted that the evidence was undisputed that
Mrs. Jackson received PAF's "Notice to Obstetrical Patient" form and that she signed it.
However, the ALJ concluded that, since the form had a blank space where the names of
4
the physicians should have been filled in, the notice form was inadequate to give rise to
the statutory rebuttable presumption that PAF provided proper notice as outlined in the
statute:
There is likewise no dispute that, given the blank space, the
notice form was inadequate to provide notice that Dr.
Bischof, Dr. Pena, or any obstetrician associated with PAF
was a participating physician in the Plan.
The ALJ properly recognized that the factual issue which was disputed was
whether Mrs. Jackson was told during her initial visit that all of PAF's physicians were
participants in the NICA plan. In reviewing the evidence in its effort to resolve the
dispute, the ALJ concluded:
Here, giving due consideration to the proof, it must be
resolved that the more persuasive proof supports the
conclusion that, more likely than not, Nurse Posey,
consistent with her routine, discussed the NICA program
with Mrs. Jackson on her initial visit, and informed Mrs.
Jackson that the physicians associated with PAF's
obstetrical program were participating physicians in the Plan.
In so concluding, it is noted that, but for the NICA program,
Mrs. Jackson acknowledged Nurse Posey otherwise
followed her routine; that it is unlikely, given such
consistency, Nurse Posey would not have also discussed
the NICA program; that Nurse Posey, as was her routine, cosigned each of the forms she discussed with Mrs. Jackson,
including the Notice to Obstetric Patient; that Nurse Posey,
as was her routine, documented her activity on the prenatal
flow sheet; and that Mrs. Jackson evidenced little recall of
the documents she signed or the discussions she had with
Nurse Posey. Finally, Nurse Posey's testimony was logical,
consistent, and credible, whereas Mrs. Jackson's testimony
was often equivocal.
The Jacksons maintain that the ALJ erred in concluding that PAF proved that it
had complied with the pre-delivery notice provisions of the statute, claiming that Nurse
Posey’s verbal notice did not comply with the terms of the statute. The Jacksons
contend that the language of the statute mandates that physicians give their patients not
5
only a copy of the "Peace of Mind" pamphlet but also written notice of the names of the
physicians who are participants in the NICA plan. They claim that, since Mrs. Jackson
did not receive written notice as to the names of the PAF physicians who were
participating in the NICA plan, PAF failed to comply with its statutory notice obligation.
We disagree.
The evidence was sufficient to demonstrate that Mrs. Jackson received proper
written notice concerning the nature of the NICA plan as well as proper verbal notice
that all of PAF's physicians were participants in the NICA plan. Contrary to the
Jacksons' claim of error, there is no requirement that the names of the participating
physicians be set forth in a written notice. See Galen of Fla., Inc. v. Braniff, 696 So. 2d
308 (Fla. 1997)(holding that NICA patients must be given pre-delivery notice of
physician’s participation in NICA within a reasonable time period prior to delivery, when
practical, but not mandating that that notice be in writing).
The Jacksons also argue that the ALJ's order should be reversed based on the
fact that the ALJ relied solely upon Nurse Posey's testimony as to her routine for
conducting initial prenatal visits to reach the factual conclusion that proper statutory
notice had been verbally given to Mrs. Jackson. They maintain that, since there was no
evidence of PAF's organizational routine but only of Posey's personal routine, Posey's
testimony was not properly admissible. They further suggest that Florida law does not
authorize the admissibility of Posey's testimony nor permit it, standing alone, to support
the burden of proving a contested factual issue, but instead, only as corroboration to
direct evidence. We again disagree.
Review of the record reveals that no objection was raised during the course of
Posey's testimony concerning the admissibility or sufficiency of such evidence. As such,
6
this claim of error was not preserved for appellate review. See Nordyne, Inc. v. Florida
Mobile Home Supply, Inc., 625 So. 2d 1283 (Fla. 1st DCA 1993)(holding that objection
to testimony was not preserved for appellate review where appellant failed to object
contemporaneously). However, even if the objection had been properly preserved, we
find the evidence now objected to, was admissible. See generally §120.569(2)(g), Fla.
Stat. (2005)(stating that all evidence of a type commonly relied upon by reasonably
prudent persons in the conduct of their affairs shall be admissible in administrative
proceedings, whether or not such evidence would be admissible in a trial in the courts of
Florida).
AFFIRMED.
PLEUS, C.J. and SAWAYA , J., concur.
7
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
