03-001710N Yvette Ortiz And Erick Alberto Ortiz, As Parents And Natural Guardians Of Erick Alejandro Ortiz, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 27, 2004.

Summary: The claim was compensable and an award was made. In dispute was whether the notice was given. It was found that neither the participating physician nor the hospital gave proper notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

YVETTE ORTIZ AND ERICK ALBERTO )

ORTIZ, as parents and natural )

guardians of ERICK ALEJANDRO )

ORTIZ, a minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 1710N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

NORTHWEST MEDICAL CENTER, INC. )

and ALISON CLARKE - DeSOUZA, )

M.D., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Ad ministrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

hearing in the above - styled case on February 26, 2004, in

Plantation, Florida.

APPEARANCES

For Petitioners: Scott M. Sandler, Esquire

2701 Sou th Bayshore Drive, Suite 402

Coconut Grove, Florida 33133

and

Robert J. Bryan, Esquire

155 South Miami Avenue, Suite 1100

Miami, Florida 331 30

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, PL

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenor Northwest Medical Center, Inc.:

James S. Haliczer, Esquire

Haliczer Pettis, P.A.

101 Northeast 3rd Avenue, Sixth Floor

Fort Lauderdale, Florida 33301

For Intervenor Alison Clarke - DeSouza, M.D.:

Merrilee A. Jobes, Esquire

George, Hartz, Lundeen, Fulmer,

Johnstone, King & Stevens

524 South Andrews Avenue

Justice Building East, Third Floor

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

1. Whether Respondent's proposal to accept the claim as

compensable should be approved.

2. If so, the amount and manner of payment of the parental

award, the amount owing for at torney's fees and costs incurred in

pursuing the claim, and the amount owing for past expenses.

3. Whether notice was accorded the patient, as contemplated

by Section 766.316, Florida Statutes (2000), 1 or whether the

failure to give notice was excused bec ause the patient had an

"emergency medical condition," as defined by

Section 395.002(9)(b), Florida Statutes, or the giving of notice

was otherwise not practicable.

PRELIMINARY STATEMENT

On May 2, 2003, Erick Alberto Ortiz and Yvette Ortiz, on

behalf of and as parents and natural guardians of Erick Alejandro

Ortiz (Erick), a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation under

the Florida Birth - Related Neurological Injury Compensation Plan

(Plan). Pe rtinent to this case, apart from contending that Erick

suffered an injury compensable under the Plan, Petitioners also

sought to avoid a claim of Plan immunity in a civil action, by

requesting a finding that the notice provisions of the Plan were

not satis fied.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

May 12, 2003, and on October 21, 2003, following a number of

extensions of time to do so, NICA gave notice that it agreed the

claim was compensable, and requested that the issues of

compensability and award be bifurcated. In the interim,

Northwest Medical Center, Inc. (Northwest Medical Center), and

Alison Clarke - DeSouza, M.D., requested and were accorded leave to

intervene, and by Or der of February 26, 2004, NICA's request for

bifurcation was denied.

At hearing, Yvette Ortiz and Erick Alberto Ortiz testified

on their own behalf, and Petitioners' Exhibits 1A, 1B, 1C, and 2 -

21, and Respondent's Exhibit 1 were received into evidence. N o

other witnesses were called, and no other exhibits were offered.

The transcript of the hearing was filed March 19, 2004, and

the parties were accorded 10 days from that date to file proposed

orders. Petitioners and Intervenors elected to file such

propo sals and they have been duly considered.

FINDINGS OF FACT

Findings related to compensability

1. Yvette Ortiz and Erick Alberto Ortiz are the natural

parents and guardians of Erick Alejandro Ortiz, a minor. Erick

was born a live infant on December 18, 2 000, at Northwest Medical

Center, a hospital located in Broward County, Florida, and his

birth weight exceeded 2,500 grams.

2. Moulton Keane, M.D., who was, at all times material

hereto, a "participating physician" in the Florida Birth - Related

Neurologica l Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes, provided obstetrical services

during the course of Mrs. Ortiz's labor, as well as Erick's

delivery and resuscitation. Also providing obstetrical services

during Mrs. Ortiz's l abor was Alison Clarke - DeSouza, M.D.;

however, Dr. DeSouza was not a participating physician in the

Plan.

3. When it has been established that obstetrical services

were provided by a participating physician at the infant's birth,

coverage is afforded by t he Plan if it is also shown the infant

suffered a "birth - related neurological injury," defined as an

"injury to the brain or spinal cord of a live infant weighing at

least 2,500 grams at birth caused by oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in a hospital,

which renders the infant permanently and substantially mentally

and physically impaired." § 766.302(2), Fla. Stat. See also

§§ 766.309 and 766.31(1), Fla. Stat.

4. In this case, it is undisputed, and the proof is

otherwise compelling, that Erick suffered severe brain injury

caused by oxygen deprivation occurring in the course of labor,

delivery, or resuscitation in the immediate postdelivery period

in the hospital which rendered him permanently and substantially

mentally and physically impaired. Therefore, the claim is

compensable and NICA's proposal to accept the claim is approved.

§§ 766.309 and 766.31(1), Fla. Stat.

Findings related to the award

5. W hen, as here, it has been resolved that a claim

qualifies for coverage under the Plan, the administrative law

judge is required to make a determination of how much

compensation should be awarded. § 766.31(1), Fla. Stat.

Pertinent to this case, Section 7 66.31(1), Florida Statutes

(2000), provided for an award of compensation for the following

items:

(a) Actual expenses for medically necessary

and reasonable medical and hospital,

habilitative and training, residential, and

custodial care and service, for medically

necessary drugs, special equipment, and

facilities, and for related travel . . . .

(b) Periodic payments of an award to the

parents or legal guardians of the infant

found to have sustained a birth - related

neurological injury, which award shall not

exceed $100,000. However, at the discretion

of the administrative law judge, such award

may be made in a lump sum.

(c) Reasonable expenses incurred in

connection with the filing of a claim under

ss. 766.301 - 766.316, including reasonable

attorney's f ees, which shall be subject to

the approval and award of the administrative

law judge . . . .

6. In this case, Petitioners and NICA have agreed that,

should Petitioners elect to accept benefits under the Plan,

Petitioners recover the following award:

(a) Reimbursement of actual expenses already

incurred in the sum of $1,258.16 together

with the right to receive reimbursement of

actual expenses for future medical bills

pursuant to § 766.31(1)(a), Fla. Stat.

(b) A lump sum payment of $100,000.00 to the

P etitioners in accordance with

§ 766.31(1)(b), Fla. Stat.

(c) Reimbursement of reasonable expenses,

inclusive of attorney's fees and costs to the

Petitioners, in the total sum of $7,500.00,

pursuant to § 766.31(1)(c), Fla. Stat.

The notice provisions of the Plan

7. While the claim qualifies for coverage under the Plan,

Petitioners have responded to the health care providers' claim of

Plan immunity in a pending civil action, by averring that the

health care providers failed to give notice, as require d by the

Plan. Consequently, it is necessary to resolve whether the

notice provisions of the Plan were satisfied. O'Leary v. Florida

Birth - Related Neurological Injury Compensation Association , 757

So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of

com pensability, including those which arise regarding the

adequacy of notice, are properly decided in the administrative

forum.") Accord University of Miami v. M.A. , 793 So. 2d 999

(Fla. 3d DCA 2000). See also Behan v. Florida Birth - Related

Neurological Inj ury Compensation Association , 664 So. 2d 1173

(Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v.

Department of Administrative Hearings , 29 Fla. L. Weekly D227a

(Fla. 2d DCA Jan. 14, 2004) (certifying conflict); Florida Health

Sciences Center, I nc. v. Division of Administrative Hearings , 29

Fla. L. Weekly D216 (Fla. 2d DCA Dec. 17, 2003)(same); and

Florida Birth - Related Neurological Injury Compensation

Association v. Ferguson , 29 Fla. L. Weekly D226a (Fla. 2d DCA

Jan. 14, 2004)(same).

8. At al l times material hereto, Section 766.316, Florida

Statutes, prescribed the notice provisions of the Plan, as

follows:

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 neurologi cal

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 pa tient 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 patien t when

the patient has an emergency medical

condition as defined in s. 395.002(9)(b) or

when notice is not practicable.

9. Responding to Section 766.316, Florida Statutes, NICA

developed a form (the NICA brochure), which contained an

explanation of a pat ient's rights and limitations under the Plan,

and distributed the brochure to participating physicians and

hospitals so they could furnish a copy it to their obstetrical

patients.

Findings related to notice

10. Mrs. Ortiz received her prenatal care at S outh Florida

Women's Health Associates, a group practice dedicated to

obstetrics and gynecology. Tara Solomon, M.D., and

Moulton Keane, M.D., were among the physicians who practiced with

the group.

11. Pertinent to the notice issue, the proof demonstrat es

that from March 25, 2000, the date of Mrs. Ortiz's first visit to

South Florida Women's Health Associates, until her presentation

at Northwest Medical Center on December 17, 2000, for Erick's

birth, Mrs. Ortiz was primarily seen by Dr. Solomon, who was not

a "participating physician" in the plan. However, on three

occasions Mrs. Ortiz was seen by Dr. Keane: once when

Dr. Solomon was not available for Mrs. Ortiz's regular

appointment with Dr. Solomon, and thereafter on June 21, 2000,

for an amniocentesi s and on October 17, 2000, for an ultrasound.

Notably, although Dr. Keane was a "participating physician" in

the Plan, Mrs. Ortiz was never provided a copy of the NICA

brochure or notice of Dr. Keane's participation in the Plan,

either during her prenatal care or Erick's birth.

12. Also pertinent to the notice issue, the proof

demonstrates that on August 25, 2000, Mrs. Ortiz presented for

pre - registration at Northwest Medical Center, a facility at which

she had been told the physicians associated with Sou th Florida

Women's Health Associates had staff privileges. At that time,

Mrs. Ortiz supplied pertinent pre - admission data, presumably

similar to that requested by Northwest Medical Center's pre -

admission form (Petitioners' Exhibit 17); signed a Conditions and

Consent for Treatment form (Petitioners' Exhibit 12); and was

given an advance directives booklet (Petitioners' Exhibit 14) and

a Northwest Medical Center Patient Handbook (Petitioners' Exhibit

13). Notably, none of the materials Mrs. Ortiz signed or was

given referred to the Plan, and she was not otherwise advised of

the Plan or provided a copy of the NICA brochure.

13. On December 17, 2000, with the fetus at term (41 weeks

gestation), Mrs. Ortiz presented at Northwest Medical Center,

where she was received in labor and delivery at 6:07 p.m. At the

time, Mrs. Ortiz complained of uterine contractions every 10 to

13 minutes since noon, and denied bleeding or rupture of the

membranes. Vaginal examination revealed the cervix at fingertip,

effacement a t 70 percent, and the fetus at - 3 station, and

contractions were noted as mild, at a frequency of 2 - 4 minutes,

with a duration of 50 - 60 seconds. Dr. DeSouza, who was covering

for Dr. Keane, was called and given a report on Mrs. Ortiz's

status.

14. At 7:5 0 p.m., Dr. DeSouza was noted at bedside. At the

time, contractions were strong, at a frequency of 1 to 5 minutes,

with a duration of 40 to 80 seconds, and vaginal examination

revealed the cervix at 1 centimeter dilation, effacement at 75

percent, and the fetus at - 2 station. Artificial rupture of the

membranes did not reveal any fluid draining. Routine labor room

admitting orders were issued by Dr. DeSouza, and Mrs. Ortiz, who

had previously been monitored as an outpatient, was admitted as

an impatient , to labor and delivery. Notably, as a matter of

course, the hospital did not provide NICA notice, although it

could easily have done so, prior to admission as an inpatient.

15. Following admission, the labor and delivery nurse on

duty at the time, Pat ricia Thomas, R.N., presented two forms for

Mrs. Ortiz's signature, as well as a Patient Questionnaire (also

referred to as an anesthesia questionnaire in this proceeding)

for her to complete. The first form was a two - sided document,

the front of which co ntained a Consent for Anesthesia and the

back of which contained a Consent for Surgery/Blood Transfusion

(the consent form), which were signed by Mrs. Ortiz and witnessed

by Nurse Thomas at 8:20 p.m., and 8:30 p.m., respectively. The

second form presented for signature was a Notice to Obstetric

Patient, regarding the Florida Birth - Related Neurological Injury

Compensation Plan.

16. The Notice to Obstetric Patient provided, as follows:

NOTICE TO OBSTETRIC PATIENT

(See Section 766.316, Florida Statutes)

I h ave been furnished information by

NORTHWEST MEDICAL CENTER prepared by the

Florida Birth - Related Neurological Injury

Compensation Association (NICA), wherein

certain limited compensation is available in

the event certain neurological injury may

occur durin g labor, delivery or

resuscitation.

Not all OB/GYN physicians participate in

NICA. For specifics on the program, I

understand I can contact the Florida Birth -

Related Neurological Injury Compensation

Association, P.O. Box 14567, Tallahassee,

Florida 32317 - 4567, 1 - 800 - 398 - 2129. I

further acknowledge that I have received and

will read a copy of the brochure prepared by

NICA.

_________________________

Name of Patient

_________________________

Signature

_________________________

Date/Time

________________ _________

Witness

_________________________

Date/Time

Contemporaneously with the notice, Mrs. Ortiz was given

a copy of the NICA brochure. 2

17. Here, there is no dispute Mrs. Ortiz signed the Notice

to Obstetric Patient form (notice form) and no compell ing proof

that she was not also provided a copy of the NICA brochure. What

is disputed is whether the notice form and NICA brochure were

provided contemporaneously with the consent form. Petitioners

also contend the notice form and the NICA brochure we re not

provided a reasonable time prior to delivery.

18. Lending confusion to when the notice form and NICA

brochure were provided is the fact that the notice form does not

include, as the form requires, the time it was signed.

Supportive of the conclu sion that the notice form was not

provided or executed contemporaneously with the consent form is

the fact that it was not witnessed by Nurse Thomas, as one would

reasonably expect, but by Mr. Ortiz, who was not present at the

time the consent form was exe cuted, and who was not present until

sometime between 9:30 p.m. and 10:00 p.m. Under the

circumstances, the record is not compelling that the notice form

or NICA brochure was provided to Mrs. Ortiz prior to 9:30 p.m.,

and no compelling proof to demonstrat e when, thereafter, the NICA

notice was provided by the hospital.

19. At 8:45 p.m., Dr. Keane, who had assumed Mrs. Ortiz's

care, called to inquire about her status. At the time, Dr. Keane

was notified that no accelerations were present, variability was

decreased, the fetal heart rate baseline was 150 - 153 beats per

minute, and no fluid was draining. Dr. Keane gave orders for

observation and pain medication.

20. At 10:10 p.m., vaginal examination revealed little

progress, with the cervix at 1 centimeter, effacement at

80 percent, and the fetus at - 2 station. Dr. Keane was beeped

and returned the call at 10:20 p.m. At the time Dr. Keane was

informed of the results of the vaginal examination; that

Mrs. Ortiz was on continuous oxygen, left lateral position ; and

that there was no change in variability, no accelerations, and

occasional late decelerations. Dr. Keane requested the fetal

monitor strip be faxed to him.

21. According to the labor record, the strip was faxed to

Dr. Keane at 10:30 p.m., and at 10: 45 p.m., he called to say he

had reviewed the strips. At the time, the labor record notes:

. . . M.D. states that at the moment delivery

was not indicated. Orders received for pain

medication. MD notified that patient was on

continuous oxygen . . . via face mask . . .

[no] fluid draining; left lateral position[;]

occ[asional] late decels; [and no]

spontaneous accel[erations].

22. At 12:10 a.m., December 18, 2000, Dr. Keane was

informed that late deceleration had been noted, with decreased

variability, and no accelerations. Dr. Keane ordered a labor

epidural, as requested by Mrs. Ortiz.

23. Thereafter, at 12:55 a.m., Dr. Keane was informed fetal

heart monitoring revealed repetitive late decelerations, with

occasional decreased variability; Dr. Keane o rdered preparations

for a cesarean section; at 1:35 a.m., Dr. Keane was at bedside;

at 1:53 a.m., Mrs. Ortiz was moved to the operating room; and at

2:26 a.m., Erick was delivered.

CONCLUSIONS OF LAW

Jurisdiction

24. The Division of Administrative Heari ngs has

jurisdiction over the parties to, and the subject matter of,

these proceedings. § 766.301, et seq. , Fla. Stat. (1999)

Compensability and award

25. In resolving whether a claim is covered by the Plan,

the administrative law judge must make the fo llowing

determination based upon the available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

rendered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurol ogical injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in the

course of labor, delivery, or resuscitation

in the immediate postdelivery period in a

hospital; or by a certified nurse midwi fe in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law j udge concludes that the "infant has sustained

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at the birth."

§ 766.31(1), Fla. Stat.

26. "Birth - related neurological injury" is defined by

Secti on 766.302(2), Florida Statutes, to mean:

. . . injury to the brain or spinal cord of a

live infant weighing at least 2,500 grams at

birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate postdelivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenita l abnormality.

27. In this case, it has been established that the

physician who provided obstetrical services at Erick's birth was

a "participating physician," and that Erick suffered a "birth -

related neurological injury." Consequently, Erick qualifies for

coverage under the Plan, and Petitioners are entitled to an award

of compensation. §§ 766.309 and 766.31, Fla. Stat. Here, the

parties have stipulated to such award, as set forth in paragraph

6 of the Findings of Fact.

Notice

28. While the claim qu alifies for coverage, Petitioners

have sought the opportunity to avoid a claim of Plan immunity in

a civil action, by requesting a finding that the notice

provisions of the Plan were not satisfied. As the proponent of

the immunity claim, the burden rested on the health care

providers to demonstrate, more likely than not, that the notice

provision of the Plan were satisfied. See Galen of Florida, Inc.

v. Braniff , 696 So. 2d 308, 311 (Fla. 1997)("[T]he assertion of

NICA exclusivity is an affirmative defense ."); id. at 309 ("[A]s

a condition precedent to invoking the Florida Birth - Related

Neurological Injury Compensation Plan as a patient's exclusive

remedy, health care providers must, when practicable, give their

obstetrical patients notice of their particip ation in the plan a

reasonable time prior to delivery."); Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st

DCA 1977)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative issue before an administrative

tribunal.")

29. At all times material hereto, Section 766.316, Florida

Statutes, prescribed the notice provisions of the Plan, as

follows:

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 - faul t

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 partici pating

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 m et.

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.

"Emergency medical condition" is defined by Section 395.002(9)(b)

to mean:

1. That there is i nadequate time to effect

safe transfer to another hospital prior to

delivery;

2. That a transfer may pose a threat to the

health and safety of the patient or fetus; or

3. That there is evidence of the onset and

persistence of uterine contractions or

r upture of the membranes.

30. Pertinent to this case, the Florida Supreme Court

described the legislative intent and purpose of the notice

requirement, as follows:

. . . the only logical reading of the statute

is that before an obstetrical patient's

remed y is limited by the NICA plan, the

patient must be given pre - delivery notice of

the health care provider's participation in

the plan. Section 766.316 requires that

obstetrical patients be given notice "as to

the limited no - fault alternative for birth -

rela ted neurological injuries." That notice

must "include a clear and concise explanation

of a patient's rights and limitations under

the plan." § 766.316. This language makes

clear that the purpose of the notice is to

give an obstetrical patient an opportu nity to

make an informed choice between using a

health care provider participating in the

NICA plan or using a provider who is not a

participant and thereby preserving her civil

remedies. Turner v. Hubrich , 656 So. 2d 970,

971 (Fla. 5th DCA 1995). In ord er to

effectuate this purpose a NICA participant

must give a patient notice of the "no - fault

alternative for birth - related neurological

injuries" a reasonable time prior to

delivery, when practicable.

Galen of Florida, Inc. v. Braniff , 696 So. 2d 308, 3 09 (Fla.

1997). The C ourt further observed:

Under our reading of the statute, in order to

preserve their immune status, NICA

participants who are in a position to notify

their patients of their participation a

reasonable time before delivery simply need

t o give the notice in a timely manner. In

those cases where it is not practicable to

notify the patient prior to delivery, pre -

delivery notice will not be required.

Whether a health care provider was in a

position to give a patient pre - delivery

notice of participation and whether notice

was given a reasonable time before delivery

will depend on the circumstances of each

case and therefore must be determined on a

case - by - case basis.

Id. at 311. Consequently, the C ourt concluded:

. . . as a condition pre cedent to invoking

the Florida Birth - Related Neurological Injury

Compensation Plan as a patient's exclusive

remedy, health care providers must, when

practicable, give their obstetrical patients

notice of their participation in the plan a

reasonable time pr ior to delivery.

Id. at 309.

31. Here, with regard to Dr. Keane, the participating

physician, it must be resolved that he failed to comply with the

notice provisions of the Plan. In so concluding, it is noted

that while the Legislature has clearly expr essed its intention in

Section 766.316, Florida Statutes, that notice was not required

when a patient presented with an "emergency medical condition,"

the Legislature did not absolve a health care provider from the

obligation to give notice when the opport unity was otherwise

available. Consequently, while Dr. Keane was not required to

give notice when he assumed Mrs. Ortiz's care at the hospital,

because there was "evidence of the onset and persistence of

uterine contractions or rupture of the membranes," he

nevertheless failed to comply with the notice provisions of the

Plan because, although he had a reasonable opportunity to do so,

he failed to give Mrs. Ortiz notice during the course of her

prenatal care. See Galen of Florida, Inc. v. Braniff , supra ;

B oard of Regents of the State of Florida v. Athey , 694 So. 2d 46

(Fla. 1st DCA 1997); Turner v. Hubrich , 656 So. 2d 970 (Fla. 5th

DCA 1995).

32. As for the hospital, it likewise was not required to

give notice following Mrs. Ortiz's presentation to the hos pital

on December 17, 2000, since there was "evidence of the onset and

persistence of uterine contractions," and the notice it gave

following Mrs. Ortiz's admission as an inpatient was not

effective, or, stated otherwise, did not satisfy the notice

provisi ons of the Plan. Such conclusion is premised on the

notion that, if notice is not required when a patient presents

with an "emergency medical condition," it logically follows that

notice, if given at that time, is not effective because, given

the emergent nature of the situation, the patient does not have a

reasonable opportunity to make an informed choice between using a

health care provider participating in the Plan or one who was

not. Consequently, since the hospital otherwise had a reasonable

opportun ity to provide notice at pre - registration, prior to Mrs.

Ortiz's presentation to the hospital for Erick's delivery, the

hospital failed to comply with the notice provisions of the Plan.

See Galen of Florida, Inc. v. Braniff , supra ; Board of Regents of

the State of Florida v. Athey , supra ; Turner v. Hubrich , supra .

Alternatively, if the hospital could provide effective notice

notwithstanding Mrs. Ortiz's emergent condition, it failed to

demonstrate that the notice it provided was given a reasonable

time pr ior to delivery, because it failed to offer compelling

proof as to when, prior to delivery, the notice was given.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Erick Alber to Ortiz and Yvette Ortiz, on behalf of and as parents

and natural guardians of Erick Alejandro Ortiz, a minor, be and

the same is hereby approved.

It is FURTHER ORDERED that the participating physician and

hospital failed to comply with the notice provis ions of the Plan.

It is FURTHER ORDERED that the following benefits are

awarded:

1. Petitioners, Erick Alberto Ortiz and Yvette Ortiz, are

awarded $1,258.16 for expenses previously incurred.

§ 766.31(1)(a), Fla. Stat. Such award shall be paid immediatel y,

and all future expenses shall be paid as incurred. § 766.31(2),

Fla. Stat.

2. Petitioners, Erick Alberto Ortiz and Yvette Ortiz, are

awarded a lump sum of $100,000.00. § 766.31(1)(b), Fla. Stat.

3. Petitioners, Erick Alberto Ortiz and Yvette Ortiz, are

awarded $7,500.00 for attorney's fees and other expenses incurred

in connection with the filing of the claim. § 766.31(1)(c), Fla.

Stat.

It is FURTHER ORDERED that pursuant to Section 766.312,

Florida Statutes, jurisdiction is reserved to resolve an y

disputes, should they arise, regarding the parties' compliance

with the terms of this Final Order.

DONE AND ORDERED this 27th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cle rk of the

Division of Administrative Hearings

this 27th day of April, 2004.

ENDNOTES

1/ All citations are to Florida Statutes (2000) unless otherwise

indicated.

2/ Given the proof regarding the hospital's routine practice , as

well as Mrs. Ortiz's signature on the form acknowledging receipt

of the NICA brochure, and there being no compelling proof to the

contrary, the record supports no other conclusion. See Watson v.

Freeman Decorating, Co. , 455 So. 2d 1097, 1099 (Fla. 1s t DCA

1984)("There is a general presumption that the ordinary course of

business has been followed absent a showing to the contrary.);

§ 766.316, Fla. Stat. ("The hospital or 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.")

COPIES FURNISHED:

(By certified mail)

Robert J. Bryan, Esquire

1 55 South Miami Avenue, Suite 1100

Miami, Florida 33130

Scott M. Sandler, Esquire

2701 South Bayshore Drive, Suite 402

Coconut Grove, Florida 33133

David W. Black, Esquire

Frank, Weinberg & Black, PL

7805 Southwest 6th Court

Plantation, Florida 33324

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

James S. Haliczer, Esquire

Haliczer Pettis, P.A.

101 Northeast 3 rd Avenue, Sixth Floor

Fort Lauderdale, Florida 33301

Merrilee A. Jobes, Esquire

Liana C. Silsby, Esquire

George, Hartz, Lundeen, Fulmer,

Johnstone, King & Stevens

524 South Andrews Avenue

Justice Building East, Third Floor

Fort Lauderdale, Florida 33 301

Moulton Keane, M.D.

4850 West Oakland Park Boulevard

Suite 118

Lauderdale Lakes, Florida 33313

Alison DeSouza, M.D.

9750 Northwest 33 Street

Suite 114

Coral Springs, Florida 33065

Northwest Medical Center

2801 North State Road 7

Margate, Florida 33063

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to judicial review pursuant to Sec tions 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk of

the Division of Administrative H earings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

Birth - Related Neurological Injury Compensation Association v.

Carreras , 598 So. 2d 299 (Fla . 1st DCA 1992). The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.