5D05-4119 Weeks v. Florida Birth-Related

State: Florida

Court: Florida Fifth District Court

Docket No: 5D05-4119

Case Date: 01/28/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2008

BETHANY WEEKS, AS PERSONAL, ETC., Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL, ETC., ET AL, Appellees. ________________________________/ Opinion filed January 31, 2008 Administrative Appeal from Florida Birth-Related Neurological Injury Compensation. Philip M. Burlington of Burlington & Rockenbach, P.A., and David J. White of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for Appellant. Wilbur E. Brewton and Kelly B. Plante of Roetzel & Andress, L.P.A., Tallahassee, for Appellee Florida Birth-Related Neurological Injury Compensation Association. Henry W. Jewett, II, and Jennings L. Hurt, III, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellee/ Intervenor Orlando Regional Healthcare System, Inc., d/b/a South Seminole Hospital. Case No. 5D05-4119

Thomas E. Dukes, III, and Ruth C. Osborne of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees/Intervenors Christopher K. Quinsey, M.D. and Advanced Women's Health Specialists.

EN BANC TORPY, J. We once again confront the topic of statutory notice to patients under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). 1 The particular question is whether health care providers may invoke the "emergency medical condition" exception to the notice precondition, even though the provider-obstetrical patient relationship had commenced before the onset of the emergency. We conclude that the notice must be given within a reasonable time after the commencement of the relationship and that the failure to do so is not excused by the subsequent emergency. In so holding, we must necessarily recede, in part, from our prior decision in Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005). Following the death of David Weeks from birth-related neurological injuries, his mother, Bethany Weeks, as personal representative, filed her petition for compensation under the NICA plan and asked for a determination of whether the health care providers had complied with the notice requirements of NICA. Appellee, Florida Birth-Related Neurological Injury Compensation Association, responded that it believed the claim was compensable and sought a hearing for a determination of compensability and on the disputed issue of pre-delivery notice. In the interim, Orlando Regional Healthcare

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