11-004320N Ninoshka Rivera, As Parent And Natural Guardian Of Kevin Terron-Otero, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, September 17, 2014.

Summary: Infant sustained oxygen deprivation during labor which resulted in permanent and substantial mental and physical impairment. Hospital provided notice but participating physicians did not.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NINOSHKA RIVERA, as parent and )

natural guardian of KEVIN )

TERRON-OTERO, a minor, )

Petitioner, )

)

vs. )

) Case No. 11-4320N

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

and )

)

EZER OJEDA, M.D., ANGELINA )

PERA, M.D., PEDIATRIX MEDICAL )

GROUP OF FLORIDA, INC., OSCEOLA )

REGIONAL MEDICAL CENTER, LANCE )

MAKI, M.D., TANYA MEDINA, M.D., )

AND J. RAPHA MEDICAL, P.A., )

)

Intervenors. )

)

)

)

FINAL ORDER ON COMPENSABILITY AND NOTICE

Pursuant to notice, a final hearing was held in this case

on July 30, 2012, in Orlando, Florida, before Susan Belyeu

Kirkland, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Maria D. Tejedor, Esquire

Christopher J. Bileki, Esquire

Diez-Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

For Respondent: Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

For Intervenor Ezer Ojeda, M.D.:

Robert Henry, Esquire

Ringer, Henry, Buckley and Seacord, P.A.

Post Office Box 4922

Orlando, Florida 32802-4922

For Intervenors Angelina Pera, M.D., and Pediatrix Medical

Group of Florida, Inc.:

Karissa L. Owens, Esquire

Amy Baker, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, P.A.

201 East Pine Street, Suite 1500

Orlando, Florida 32801

For Intervenor Osceola Regional Medical Center:

Richard B. Schwamm, Esquire

Maria B. Vazquez, Esquire

Haliczer Pettis and Schwamm

East Robinson Street, Suite 475

Orlando, Florida 32801

For Intervenor Lance Maki, M.D.:

Kevin Thomas O'Hara, Esquire

O'Hara Law Firm, P.A.

220 East Central Parkway, Suite 2040

Altamonte Springs, Florida 32701

For Intervenors Tanya Medina, M.D., and J. Rapha Medical,

P.A.:

Mark R. Ahrens, Esquire

McEwan, Martinez, & Dukes, P.A.

108 East Central Boulevard

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are: (1) For the purposes of

determining compensability, whether the injury claimed is a

birth-related neurological injury and whether obstetrical

services were delivered by a participating physician in the

course of labor, delivery, or resuscitation in the immediate

post-delivery period in the hospital; and (2) Whether notice was

accorded the patient, as contemplated by section 766.316,

Florida Statutes, or whether the failure to give notice was

excused because the patient had an emergency medical condition,

as defined in section 395.002(8)(b), Florida Statutes, or the

giving of notice was not practicable.

PRELIMINARY STATEMENT

On August 22, 2011, Petitioner, Ninoshka Rivera

(Ms. Rivera), on behalf of and as parent and natural guardian of

Kevin Terron-Otero (Kevin), a minor, filed a Petition for

Benefits under Protest Pursuant to Florida Statute Section

766.301 et seq. (Petition) with the Division of Administrative

Hearings (DOAH). Ms. Rivera alleged that Kevin did not sustain

injuries that are compensable under the Neurological Birth-

Related Injury Compensation Plan (NICA Plan) and that Ms. Rivera

was not provided with proper pre-delivery notice by the hospital

and obstetricians pursuant to section 766.316.

The case was originally assigned to Administrative Law

Judge Ella Jane P. Davis, but due to the retirement of

Administrative Law Judge Davis, the case was reassigned to

Administrative Law Judge Susan Belyeu Kirkland.

The Petition alleged that Ezer A. Ojeda, M.D., provided

obstetric services at the birth of Kevin, and that Kevin was

born at Osceola Regional Medical Center (Osceola) in Kissimmee,

Florida. DOAH served the Birth-Related Neurological Injury

Compensation Association (Association), Dr. Ojeda, and Osceola

Regional Medical Center with copies of the Petition.

On September 1, 2011, Dr. Ojeda filed a petition for leave

to intervene, which was granted by Order dated September 21,

2011. On September 27, 2011, Angelina Pera, M.D., and Pediatrix

Medical Group of Florida, Inc. (Pediatrix), filed a petition for

leave to intervene, which was granted by Order dated October 21,

2011. On March 20, 2012, Osceola filed a petition to intervene,

which was granted by Order dated March 21, 2012. On March 26,

2012, Lance Maki, M.D., filed a petition to intervene, which was

granted by Order dated March 27, 2012. On June 27, 2012,

Tanya Medina, M.D., and J. Rapha Medical, P.A., filed a petition

to intervene, which was granted by Order dated July 17, 2012.

At the final hearing, Petitioner called the following

witnesses: Jeanette Rivera; Ninoshka Rivera; Robert Cullen,

Jr., M.D., and Berto Lopez, M.D. Intervenor, Osceola, called

Sari Falcon as its witness. Neither Respondent nor the

remaining Intervenors called any live witnesses. Joint Exhibits

1-34 were admitted in evidence without objection. Joint Exhibit

3 Bates Numbers J308 and J309 were substituted with clearer

copies by stipulation of the parties. Joint Exhibit 32 was

replaced in its entirety with a correct copy of the contract by

stipulations of the parties.

Respondent/Intervenors' Exhibits 1, 2, and 5 through 7 were

not admitted in evidence. Whether to admit Respondent/

Intervenor's Exhibit 3 was taken under advisement at the final

hearing. Having reviewed the depositions of Dr. Ojeda and

Dr. Maki, Respondent/Intervenor's Exhibit 3 is admitted pursuant

to section 120.57(1)(c), Florida Statutes (2012).

On August 8, 2012, Petitioner filed Petitioner's Motion to

Withdraw, or in the Alternative, Motion to Strike Deposition of

Robert F. Cullen, Jr., M.D., as Joint Exhibit 21. Counsel for

Petitioner stated at the final hearing, that there was no

objection to any of the Joint Exhibits, while knowing that

Dr. Cullen would be called as a live witness by Petitioner. The

motion was denied by Order dated August 14, 2012.

The taking of testimony and admission of exhibits was

completed at approximately 8:00 p.m., on July 30, 2012. Because

of the lateness of the hour, the parties were allowed to present

closing arguments via a telephonic conference call at a later

date. Closing arguments were presented on August 21, 2012.

The three-volume Transcript of the final hearing held on

July 30, 2012, was filed on August 17, 2012. The Transcript of

closing arguments given on August 21, 2012, was filed on

August 28, 2012.

On August 23, 2012, Petitioner filed Petitioner's Unopposed

Motion for Extension of Time to File Proposed Final Order and

Supporting Memorandum of Law, requesting that the time for

filing proposed final orders be extended to September 21, 2012.

The motion was granted by Order dated August 24, 2012.

On September 21, 2012, Petitioner filed Petitioner's

Unopposed Motion for Extension of Time to File Proposed Orders.

The motion was granted by Order dated September 21, 2012, and

the time for filing proposed final orders was extended to

September 28, 2012. All parties, with the exception of

Petitioner, filed their proposed final orders before 5:00 p.m.

on September 28, 2012. All the parties' proposed orders have

been given careful consideration in the preparation of this

Final Order.

Due to some clerical error, Petitioner's proposed final

order was filed shortly after 5:00 p.m., on September 28, 2012;

therefore, the docket reflected October 1, 2012, as the date of

filing. On October 1, 2012, Petitioner filed Petitioner's

Motion to Deem Filing of Proposed Order Timely, or in the

Alternative to Accept Filing at 5:01 p.m., on September 28,

2012. An Order granting the motion was entered on October 2,

2012.

On September 25, 2012, Petitioner filed Petitioner's Motion

to Strike Pleadings for Perpetrating a Fraud upon the Court.

The motion was heard by telephonic conference call on

October 11, 2012. The motion was denied by Order issued

October 11, 2012.

At the final hearing on July 30, 2012, and at the closing

arguments on August 21, 2012, Petitioner made several motions

for directed verdict. All the issues presented in the motions

have been addressed in the findings of fact and conclusions of

law of this Final Order.

FINDINGS OF FACT

1. While living in Puerto Rico, Ms. Rivera became

pregnant. She had some prenatal care in Puerto Rico prior to

moving to Florida in approximately August 2009. She had no

prenatal care after coming to Florida until she presented at

Osceola on October 21, 2009.

2. In 2009, Osceola contracted with OB Hospitalists Group,

LLC (OB Hospitalists), for hospital-based physicians for the

provision and management of health care for Osceola's unassigned

and emergent obstetrics and gynecology patients. The physicians

provided by OB Hospitalists rotated so that a physician from OB

Hospitalists was at Osceola at all times. Obstetric patients

who did not have an obstetrician and presented to Osceola for

obstetrical care would be seen by one of the physicians from OB

Hospitalists. Although an obstetrical patient may see one

physician from OB Hospitalists during a visit to the emergency

room, the patient may see another physician from OB Hospitalists

on another visit.

3. The contract between OB Hospitalists and Osceola

provided that OB Hospitalists and its representatives were

providing services pursuant to the contract as independent

contractors and not as "employees, agents, partners of, or joint

ventures with" the hospital. The contract also provided that OB

Hospitalists would provided medical malpractice coverage for the

physicians it provided to Osceola.

4. OB Hospitalists contracted with physicians to provide

the services required under the agreement between Osceola and OB

Hospitalists. Among the physicians who contracted with OB

Hospitalists to provide services to Osceola were Dr. Maki and

Dr. Ojeda. OB Hospitalists required its physicians to

participate in the NICA Plan and paid their annual assessments

for participation in the NICA Plan.

5. In October and November 2009, Dr. Maki provided

hospital-based physician services at Osceola pursuant to the

contract between Osceola and OB Hospitalists. During this time,

he was a participating physician in the NICA Plan, and his

assessment was paid by OB Hospitalists. He was a physician

licensed in Florida and was practicing obstetrics on a full-time

basis.

6. Osceola is a licensed hospital in Florida as evidenced

by its license numbers listed on the Hospital Assessment and

Record and Admittance form, Joint Exhibit 31, J0925. Osceola

paid its 2009 assessment for the NICA Plan.

7. Ms. Rivera, whose primary language is Spanish,

presented at the Osceola emergency room on October 21, 2009,

complaining of abdominal cramping. She was accompanied by her

mother, Jeanette Rivera. A security guard, who spoke Spanish,

translated Ms. Rivera's communications to the hospital secretary

on duty. Ms. Rivera filled out a sign-in sheet for emergency

services upon arrival at the hospital. The form requested that

she state her name, address, social security number, telephone

number, date of birth, and reason for the visit. Ms. Rivera

wrote her name and address on the form. The security guard

placed Ms. Rivera in a wheelchair and wheeled her to the nurses'

station, where he left her.

8. The triage nurse note on the sign-in sheet indicated

that Ms. Rivera had no known allergies and had been taking

prenatal vitamins.

9. Ms. Rivera was seen by Dr. Maki on her visit on

October 21, 2009, but he did not admit her to the hospital. She

was discharged with nurse's instructions, which were in Spanish.

10. Sari Falcon was an out-patient registrar employed by

Osceola who was on duty on October 21, 2009, and registered

Ms. Rivera. As an out-patient registrar, it was Ms. Falcon's

responsibility to collect demographic information, to get the

patients to sign the condition of admission form, to verify

insurance, and to schedule, if necessary.

11. Ms. Falcon's family is from Puerto Rico, and she is

fluent in Spanish, which is her first language. Although

Ms. Falcon does specifically remember registering Ms. Rivera,

Ms. Falcon has certain practices to which she adheres during the

registration process. One of her practices is to converse in

Spanish with patients who speak only Spanish.

12. If the patient is an obstetric patient whose pregnancy

is over 20 weeks, Ms. Falcon takes the patient to the labor and

delivery department to complete the registration process.

Ms. Falcon's initial registration of an obstetrical patient

occurs during one interaction/transaction, and all pages are

reviewed, signed, and witnessed by her during that single

transaction.

13. One of her duties is to prepare a registration form or

face sheet which contains demographic and other information

about the patient. She verifies the information on the

registration form with the patient.

14. The registration form for Ms. Rivera indicated that

Ms. Rivera was unemployed, that her insurance was in the form of

Medicaid, her last menstrual cycle was February 9, 2009, and

that she did not have a primary or family physician. The form

shows that the person registering Ms. Rivera is Ms. Falcon.

15. On October 21, 2009, Ms. Rivera signed the Conditions

of Admission and Consent for Medical Treatment form, which

Ms. Falcon presented to Ms. Rivera. Ms. Rivera also initialed a

part of the form, indicating that she was given the opportunity

to read and ask questions about the information on the form and

that she either had no questions or her questions had been

answered. Ms. Rivera also initialed the form indicating that

she did not have an executed Advance Directive and did not

desire to execute one. By her initials, Ms. Rivera also

acknowledged that she had received a copy of the hospital's

Notice of Privacy Practices. Ms. Falcon signed the Conditions

of Admission and Consent for Medical Treatment, indicating that

she had witnessed Ms. Rivera signing the form.

16. When Ms. Falcon presents the consent form to a

patient, she goes over the information on the form with the

patient prior to the patient signing the form. If the patient

speaks only Spanish, Ms. Falcon goes over the material in

Spanish. She explains the part of the form, which requires the

patient to indicate by initialing the appropriate box, whether

the patient has an Advance Directive, does not have an Advance

Directive and would like to get information on Advance

Directives, or does not have an Advance Directive and does not

wish to execute one.

17. Another of Ms. Falcon's responsibilities is to give

the obstetric patients she registers a copy of the brochure

prepared by the Association (NICA brochure). If the patient

speaks only Spanish, Ms. Falcon would provide a copy of the NICA

brochure which is written in Spanish. Ms. Falcon explains to

the patient what the NICA brochure is.

18. Ms. Falcon has the patient sign an acknowledgment form

in Ms. Falcon's presence, showing the patient received the NICA

brochure. Ms. Rivera executed an acknowledgment form dated

October 21, 2009. The form, which is written in English,

states:

1. I acknowledge that I have received the

Florida Birth Related Neurological Injury

Compensation Plan brochure.

2. I acknowledge and understand that I may

contact the Florida Birth Related

Neurological Compensation Association about

the details of the plan at 1-800-398-2129.

Ms. Rivera printed her name on the line which had "Print Name"

underneath it and signed her name on "Signature" line underneath

it.

19. Dr. Maki does not speak English. He did not give

Ms. Rivera a NICA brochure on October 21, 2009, and did not

advise Ms. Rivera that he was a participating physician in the

NICA Plan. Additionally, Ms. Rivera was not advised on

October 21, 2009, that any of the obstetric physicians which OB

Hospitalists provided to Osceola were participating physicians

in the NICA Plan.

20. Ms. Rivera's testimony concerning her October 21,

2009, visit to Osceola is not credible. There are many

inconsistencies in Ms. Rivera's testimony, and some of

Ms. Rivera's testimony is contradicted by her own mother, who

was present at all times during the October 21, 2009, visit.

Ms. Rivera stated that the only person who spoke Spanish to her

at the hospital, aside from her mother, was the security guard.

She also testified that she did not speak, read, or understand

English on October 21, 2009. However, she contradicted herself

when she testified that she knew what "name" and "address" meant

in English because she learned that in school. Ms. Rivera also

said that she was able to understand the words "print name" and

"signature" because she had signed forms written in English in

Puerto Rico with similar requirements. In her deposition,

Ms. Rivera's mother testified that a female nurse spoke to them

in Spanish after Ms. Rivera was told that she would be

discharged and that another nurse came in with some documents

for Ms. Rivera to sign. In her deposition, Ms. Rivera testified

that the doctor gave her the Conditions of Admission and Consent

to Treat form for her to sign, showed her where to initial the

appropriate boxes, and said, "Sign and this is to have your

baby." At the final hearing, Ms. Rivera changed her testimony

and testified that Ms. Falcon gave her the form and told her

where to sign and initial. At the final hearing, Ms. Rivera

testified that on October 21, 2009, Dr. Maki gave her the

acknowledgement form to sign indicating that she had received

the NICA brochure and told her where to print her name and where

to sign her name. Ms. Rivera's mother testified that Ms. Rivera

did not sign any documents in the presence of the doctor and

that the doctor only examined Ms. Rivera. In her deposition,

Ms. Rivera denied receiving discharge instructions in Spanish

and denied signing the discharge instructions. At the final

hearing, Ms. Rivera acknowledged that she received the discharge

instructions at her October 21, 2009, visit and that she signed

the discharge documents.

21. An interpreter was present at the depositions of both

Ms. Rivera and her mother and translated from English to Spanish

and from Spanish to English for their benefit. An interpreter

was also present at the final hearing and translated from

English to Spanish and from Spanish to English for their

testimonies.

22. Much of the information that is contained on the

Registration Form, Joint Exhibit 1, J0003, would require that it

be communicated to someone at the hospital. Information such as

Ms. Rivera's mother's name and address, the employment status of

Ms. Rivera, the date of Ms. Rivera's last menstrual period, and

the lack of a primary care or family physician could only have

come from Ms. Rivera or her mother, who speaks only Spanish.

This information was not contained on the sign-in sheet that

Ms. Rivera filled out with the help of the security guard.

23. There is also information that is contained on the OB

Triage form that had to have been communicated by Ms. Rivera to

the staff at the hospital. Such information includes whether

Ms. Rivera had certain allergies, the time of the day that

Ms. Rivera's cramping began, pain of three on the pain scale,

use of prenatal vitamins, and her level of education. The OB

Triage form also stated that Ms. Rivera's primary language was

Spanish and that an interpreter would be needed. There is no

reason for the triage nurse to make up this information.

24. Ms. Falcon always follows the procedure discussed

above when registering obstetric patients, which is the same

procedure outlined in Osceola's printed policies. There is no

dispute that she speaks fluent Spanish, and there would be no

logical reason that she would not speak Spanish to a patient who

speaks only Spanish, particularly in a hospital with a 90

percent population of Spanish-speaking patients. Additionally,

Ms. Falcon signed the Conditions of Admissions and Consent to

Treatment form, as a witness to Ms. Rivera's signature.

Ms. Rivera signed the form acknowledging that she received the

NICA brochure.

25. The greater weight of the evidence establishes that

Ms. Rivera did receive a NICA brochure from Ms. Falcon on

October 21, 2009; Ms. Falcon explained in Spanish to Ms. Rivera

about the NICA brochure; and Ms. Falcon had Ms. Rivera sign a

form acknowledging her receipt of the NICA brochure.

26. On November 4, 2009, Ms. Rivera again presented to the

Osceola emergency room at 9:40 a.m., complaining of abdominal

cramps "all night long" and leakage of clear vaginal fluid since

9:00 a.m. The OB Triage note stated that Ms. Rivera was having

moderate contractions every two to three minutes with a duration

of 30 to 50 seconds. Dr. Maki admitted her to the hospital at

2:40 p.m. At 6:06 p.m., Dr. Maki artificially ruptured

Ms. Rivera's membranes.

27. Dr. Maki did not advise Ms. Rivera on November 4,

2009, that he was a participating physician in the NICA Plan and

did not provide Ms. Rivera with a NICA brochure.

28. After Dr. Maki's shift ended, Dr. Ojeda took over the

care of Ms. Rivera. Dr. Ojeda, a licensed physician in Florida,

was also an independent contractor with OB Hospitalists. On

November 4, 2009, he was a participating physician in the NICA

Plan and was practicing obstetrics on a full-time basis. His

NICA assessment for 2009 was paid by OB Hospitalists.

29. Dr. Ojeda arrived at Osceola on November 4, 2009, at

7:15 p.m., and first came in contact with Ms. Rivera at

7:26 p.m. At that time Ms. Rivera's membranes had been

ruptured, her contractions were coming every one to two minutes,

and the duration of the contractions was 60 seconds. Dr. Ojeda

did a vaginal examination and reviewed the fetal heart rate

tracings. According to Ms. Rivera's mother, when Dr. Ojeda

first saw Ms. Rivera, the baby's hair was visible in the birth

canal. Petitioner's expert, Berto Lopez, M.D., was of the

opinion that at the time that Dr. Ojeda first saw Ms. Rivera,

that it was not an appropriate time to transfer Ms. Rivera to

another hospital and a new obstetrician.

30. Dr. Ojeda speaks Spanish. When he first met

Ms. Rivera, he advised her that he was a participating physician

in the NICA plan, and gave her a NICA brochure in Spanish. He

regularly keeps NICA brochures with him when he is on duty.

Dr. Ojeda noted in the physician's progress notes that he

informed Ms. Rivera at 7:40 p.m., that he was an active member

of the NICA Plan.

31. When Ms. Rivera came to Osceola on November 4, 2009, a

fetal monitor was attached to her to monitor the heart rate of

the baby. A normal fetal heart rate is between 120 and 160

beats per minute. Kevin's baseline fetal heart rate was 150

beats per minute. A little after 10:00 a.m., the fetal heart

strip registered a variable deceleration of Kevin's heart rate

that went down to 90 beats per minute. At approximately

2:14 p.m., the heart decelerated to about 75 beats per minute,

which was followed by another deceleration to about 60 beats per

minute at 2:19 p.m. From approximately 2:20 p.m., until

8:06 p.m., Kevin experienced small fetal heart rate

decelerations, which evidenced an overall poor fetal heart rate

variability. At approximately 8:06 p.m., Kevin's heart rate

decelerated to about 60 beats per minute and then returned

quickly to baseline. Decelerations continued, and at

approximately 8:44 p.m., the variable fetal heart rate

decelerations became severe and consistent. At this point,

Kevin suffered oxygen deprivation.

32. At 9:27 p.m., Dr. Ojeda delivered Kevin. He weighed

3,290 grams. At the time of birth, Kevin had poor muscle tone,

no cry, and no respiratory effort and required three minutes of

positive pressure ventilation with bag and mask. His Apgar

scores at one, five, and ten minutes were two, five, and seven,

respectively. At birth the umbilical cord ph was 7.05, which

demonstrated that Kevin had acidosis at time of delivery.

Acidosis is a sign of oxygen deprivation.

33. After delivery, Kevin was taken to the nursery, at

which time the post-delivery resuscitation had ended. His color

was pale. Dr. Medina was notified of the delivery and status of

Kevin. Dr. Medina ordered laboratory work to be done.

34. About an hour after delivery, blood was drawn. Kevin

had a platelet count of 117,000, which is low. Kevin was bathed

while in the nursery.

35. Around midnight of November 5, 2009, attempts were

made to feed Kevin, and he did not tolerate feeding. At this

time, the nurse noted that Kevin had odd movements, his left arm

was straight, and his hand was in a tight fist. He had a facial

grimace with his mouth slanting to the right side.

36. At 12:23 a.m., the nurse noted that Kevin continued to

have odd movements to the right side with arm straightening and

fist clenched. His head was turned to the right side. He had a

facial grimace with a droop to the right side, and his eyes were

turned upward to the right side. His oxygen saturation was down

to 82 percent. Dr. Medina, who was notified of Kevin's

condition, ordered a consult. No evidence was presented to

establish that Dr. Medina or J. Rapha Medical, P.A., provided

obstetric services to Ms. Rivera. It was not established that

Dr. Medina was a participating physician in the NICA Plan or

that J. Rapha Medical, P.A., participated in the NICA Plan. No

evidence was presented that either Dr. Medina or J. Rapha

Medical, P.A., gave notice they participated in the NICA Plan.

37. Dr. Pera, a neonatologist, was called on consult.

Neither Dr. Pera nor Pediatrix rendered any obstetric services

to Ms. Rivera. The evidence did not establish that Dr. Pera or

Pediatrix participated in the NICA Plan or that they gave notice

to Ms. Rivera that they participated in the NICA Plan.

38. At 12:35 p.m., Kevin was admitted to the neonatal

intensive care unit, pursuant to orders from Dr. Pera. Kevin

moved with both arms straightened and fist clenched. His eyes

turned upward to the right side, and his mouth drooped to the

right side. These symptoms are indicative of a seizure. His

oxygen saturation dropped to the mid 70's.

39. Orders were given for Phenobarbital, which was

administered at 2:50 a.m. Kevin was transferred to the Winnie

Palmer Hospital for Women and Babies (Winnie Palmer) at

6:45 a.m.

40. Diagnostic studies were done at Winnie Palmer, which

showed that Kevin had suffered from oxygen deprivation. The EEG

was abnormal; MRI's showed multiple intracranial hemorrhages and

a progression to diffuse cystic encephalomalacia; and CAT scans

showed intracranial hemorrhage with enlarged ventricles and

cystic encephalomalacia.

41. Petitioner retained Robert Cullen, Jr., M.D.

(Dr. Cullen), as an expert witness, and Respondent retained

Dr. Donald Willis, M.D. (Dr. Willis), and Raymond Fernandez,

M.D. (Dr. Fernandez), as expert witnesses. All doctors agree

that Kevin sustained a brain injury during labor and delivery

due to oxygen deprivation.

42. Dr. Cullen believes that the brain injury, which

occurred during labor and delivery, was a significant injury and

that Kevin sustained a separate significant brain injury around

midnight to 12:30 a.m., on November 5, 2009. He is of the

opinion that Kevin's impairment is a result of the combination

of the two injuries, and he cannot apportion the impairment

between the two injuries.

43. Dr. Cullen bases his opinion that a second injury

occurred because Kevin had stabilized by the time that he was

placed in the nursery and the seizure activity started over two

hours after oxygen deprivation was sustained during labor and

delivery. However, Dr. Cullen concedes that an infant may not

always show symptoms of a permanent and substantial impairment

within three hours of birth.

44. Dr. Fernandez, Respondent's expert pediatric

neurologist, opined that Kevin suffered brain injury during

labor and delivery and that a brief period of stability after

resuscitation is not unusual. He stated:

[I]t's not uncommon at all for a baby to

then stabilize for a period of time even

after sustaining severe injury. There's

sort of a period of time when people look

pretty good after brain injury; that doesn't

last too long. It might last minutes to

hours, two or three or four hours, and then

decline begins to occur.

There are progressive changes that take

place that mount gradually and eventually

instability recurs, so that period of

relative stability or stability immediately

after initial resuscitation is not unusual.

Dr. Fernandez's testimony is credited.

45. Dr. Willis is of the opinion that the seizure episode

that began around midnight to 12:30 a.m., on November 5, 2009,

was a manifestation of the brain injury that was sustained

during labor and delivery and that the seizure episode was not a

separate injury from the oxygen deprivation which occurred

during labor and delivery. His opinion is based on the severe

and consistent variable heart rate decelerations that Kevin

experienced intrapartum; the Apgar scores after birth; the poor

respiratory effort after birth requiring positive pressure

ventilation with a mask and bag; the low platelet count of

117,000 after delivery; and the low ph of 7.05 of the umbilical

cord, indicating acidosis at the time of delivery. The

testimony of Dr. Willis is credited.

46. The greater weight of the evidence establishes that

Kevin sustained an injury to his brain during labor and delivery

due to oxygen deprivation and the seizures and brain hemorrhage

after birth were a manifestation or continuation of the early

injury and not a separate brain injury.

47. The brain injury sustained during labor and delivery

resulted in substantial and permanent mental and physical

impairment to Kevin. Dr. Fernandez, was the expert retained by

Respondent to opine on Kevin's impairments. Dr. Fernandez

opined that Kevin has mental and physical impairments, which are

both substantial and permanent. He described Kevin's condition

at the time Kevin was examined by Dr. Fernandez on January 18,

2012, as follows:

He's virtually non-interactive, responds

very little to sound, but otherwise does not

interact. He does not speak. I don't think

that he has any understanding of language.

He has very poor motor control. His head

circumference, his brain is very small and

there is cystic change within his brain and

that's highly predictive of permanent

impairment.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301-766.316, Fla. Stat. (2012).

49. The NICA Plan was established by the Legislature "for

the purpose of providing compensation, irrespective of fault,

for birth-related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

50. The injured infant, her or his personal

representative, parents, dependents, and next of kin may seek

compensation under the Plan by filing a claim for compensation

Stat. NICA, which administers the Plan, has "45 days from the

date of service of a complete claim . . . in which to file a

response to the petition and to submit relevant written

information relating to the issue of whether the injury is a

birth-related neurological injury." § 766.305(4), Fla. Stat.

If NICA determines that the injury alleged in a claim is a

compensable birth-related neurological injury, it may award

compensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat.

51. In the instant case, Petitioner filed a claim under

protest, alleging that Kevin did not sustain a birth-related

neurological injury that is compensable under the NICA Plan, and

NICA has determined that the injury is compensable under the

Plan. As the proponent of the issue of compensability, the

burden of proof as to compensability is upon Respondent. See

Balino v. Dep't of Health & Rehab. Servs. 348 So. 2d 349, 350

(Fla. 1st DCA 1997). Therefore, the dispute must be resolved by

the assigned administrative law judge in accordance with the

provisions of chapter 120, Florida Statutes. §§ 766.304,

766.309, and 766.31, Fla. Stat.

52. In discharging this responsibility, the Administrative

Law Judge must make the following 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

neurological 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 midwife 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 judge concludes that the "infant has

sustained a birth-related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

53. The term "birth-related neurological injury" is

defined in section 766.302(2) as follows:

"Birth-related neurological injury" means

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 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.

54. Section 766.302(6) defines the term "hospital" as "any

hospital licensed in Florida."

1/ Section 766.302(7), defines the

term "participating physician" as follows:

[A] physician licensed in Florida to

practice medicine who practices obstetrics

or performs obstetrical services either full

time or part time and who had paid or was

exempted from payment at the time of the

injury the assessment required for

participation in the birth-related

neurological injury compensation plan for

the year in which the injury occurred. Such

term shall not apply to any physician who

practices medicine as an officer, employee,

or agent of the Federal Government.

55. The evidence establishes that Ms. Rivera was provided

obstetrical services by two participating physicians, Dr. Maki

and Dr. Ojeda. At the time of Kevin's birth, both physicians

were full-time obstetricians, licensed to practice medicine in

Florida. Both physicians participated in the NICA Plan, and

their annual assessments were paid by OB Hospitalists for 2009.

The obstetrical services during labor and delivery were provided

at a Florida-licensed hospital, Osceola, and Osceola had paid

its 2009 assessment for participation in the NICA Plan.

56. The evidence established that Kevin sustained a brain

injury during labor and delivery due to oxygen deprivation. The

evidence also established that as a result of the brain injury

sustained during labor and delivery that Kevin is both

substantially and permanently mentally and physically impaired.

57. The greater weight of the evidence establishes that

Kevin sustained a birth-related neurological injury which is

compensable under the NICA Plan.

58. Section 766.316 provides:

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(8)(b) or when notice is not

practicable.

59. Petitioner contends that no physician involved in the

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital gave pre-delivery notice and that any

notice that may have been provided by the hospital was

insufficient. Respondent did not take a position on the notice

issue. Intervenors, Osceola, Dr. Ojeda, and Dr. Maki contend

that notice was appropriately given or, in the alternative, an

exception to the notice requirement is applicable. As

proponents of the proposition that appropriate notice was given

or, in the alternative, an exception applies, the burden on the

issue of notice is upon the Intervenors. See Balino 348 So. 2d

at 350.

60. The greater weight of the evidence established that

Osceola provided the notice required by section 766.316 on

Ms. Rivera's visit to Osceola on October 21, 2009. Ms. Rivera

was provided the notice by Ms. Falcon in the form of a brochure

furnished by NICA. The NICA brochure satisfies the legislative

mandate of providing a "clear and concise explanation of a

patient's rights and limitations under the plan" pursuant to

section 766.316. Dianderas v. Fla. Birth Related Neurological ,

973 So. 2d 523, 527 (Fla. 5th DCA 2007).

61. Although Ms. Falcon does not independently remember

registering Ms. Rivera on October 21, 2009, she follows her

normal routine and practice when registering obstetrical

patients, which includes giving the brochure to the patient,

speaking to Spanish-speaking patients in Spanish, and having the

patient sign the acknowledgment form. "Evidence of the routine

practice of an organization, whether corroborated or not and

regardless of the presence of eyewitnesses, is admissible to

prove the conduct of the organization on a particular occasion

was in conformity with routine practice." § 90.406, Fla. Stat.

(2012); see also Tabb v. Fla. Birth-Related Neurological Injury

Comp. Ass'n , 880 So. 2d 1253, 1259 (Fla. 1st DCA 2004).

62. Ms. Rivera signed a form acknowledging receipt of the

NICA brochure. Her signature on the acknowledgment form raises

a prebuttable presumption that the notice requirements of

section 766.316 have been met. § 766.316, Fla. Stat. The

presumption has not be rebutted by Petitioner. Ms. Rivera's

testimony that she did not receive the brochure and that she did

not understand the acknowledgment form because it was in English

is not credible. Ms. Falcon gave the brochure, written in

Spanish, to Ms. Rivera and explained the acknowledgment form to

Ms. Rivera in Spanish.

63. Petitioner argues that the notice was defective

because the NICA brochure did not provide that the hospital

participated in the NICA Plan. Nothing in the statute provides

that a hospital must identify that it participates in the plan.

The statute plainly states: "Each hospital with a participating

physician on its staff . . . shall provide notice to the

obstetrical patients as to the limited no-fault alternative for

birth-related neurological injuries." The notice provided was

the NICA brochure.

64. Petitioner argues that the acknowledgment form signed

by Ms. Rivera was defective because it did not identify Osceola.

Section 766.316 does not require that a hospital have the

patient sign an acknowledgment form. It is up to the hospital

to elect whether to use an acknowledgment form. Petitioner

contends that Osceola should have used the form developed by

NICA, which states:

I have been furnished information in the

form of a Brochure prepared by the Florida

Birth-Related Neurological Injury

Compensation Association (NICA), pursuant to

Section 766.316, Florida Statutes, by

(insert name of Hospital), wherein certain

limited compensation is available in the

event certain types of qualifying

neurological injuries may occur during

labor, delivery, or resuscitation in a

hospital.

The suggested NICA acknowledgment does not state that the

hospital participates in the NICA Plan, only that the hospital

provided the brochure.

65. Section 766.316 requires that "[e]ach hospital with a

participating physician on its staff and each participating

physician" shall provide notice. Unless the notice provided by

the hospital indicates that the notice was also being given on

behalf of a participating physician, the notice does not extend

to the participating physicians. The participating physicians

must give notice on their own. See Fla. Birth-Related

Neurological Injury Comp. Ass'n v. Dep't of Admin. Hearings ,

29 So. 3d 992, 994 (Fla. 2010).

66. The greater weight of the evidence established that

Dr. Maki did not provide the required notice to Ms. Rivera when

he first saw her on October 21, 2009. He did not provide the

required notice when he provided obstetrical services to

Ms. Rivera on November 4, 2009.

67. Dr. Maki argues that because he did not speak Spanish

that the only practical way to communicate with Ms. Rivera was

through hospital personnel who are Spanish-English translators.

While Dr. Maki may not have been able to understand Spanish,

this communication problem does not relieve him of the

responsibility of providing notice for himself.

68. In Weeks v. Florida Birth-Related Neurological Injury

Compensation Association , 977 So. 2d 616, 618-619 (Fla. 5th DCA

2008), the court stated:

[T]he formation of the provider-obstetrical

patient relationship is what triggers the

obligation to furnish the notice. The

determination of when this relationship

commences is a question of fact. Once the

relationship commences, because [section

766.316] is silent on the time period within

which notice must be furnished, under well-

established principles of statutory

construction, the law implies that notice

must be given within a reasonable time.

Burnsed v. Seaboard Coastline R. Co. , 290 So

2d 13, 19 (Fla. 1974); Concerned Citizens of

Putnam County v. St. Johns River Water Mgmt.

Dist. , 622 So. 2d 520, 523 (Fla. 5th DCA

1993). The determination depends on the

circumstances, but a central consideration

should be whether the patient received the

notice in sufficient time to make a

meaningful choice of whether to select

another provider prior to delivery, which is

the primary purpose of the notice

requirement.

69. The obstetrician-patient relationship between Dr. Maki

and Ms. Rivera began when he saw her at Osceola on October 21,

2009. At that time, there was no emergency medical condition

and it would be reasonable and practicable for Dr. Maki to give

the required notice. He did not do so.

70. The next time that Dr. Maki had contact with

Ms. Rivera was on November 4, 2009, when she presented to

Osceola. Dr. Maki argues that Ms. Rivera was in an emergent

condition when she came to the hospital on November 4, 2009.

Section 766.316 provides that notice need not be given when the

patient has a medical condition pursuant to section

395.002(8)(b), which provides:

(8) "Emergency medical condition" means:

* * *

(b) With respect to a pregnant woman:

1. That there is inadequate 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. There is evidence of the onset and

persistence of uterine contractions or

rupture of the membranes.

71. The evidence in this case did not establish that there

was inadequate time to effect a safe transfer to another

hospital at the time Ms. Rivera presented to Osceola on

November 4, 2009. She arrived at the hospital at approximately

9:40 a.m., was not admitted until 2:40 p.m. Thus, if she was

not admitted until five hours after she presented at the

hospital, there would have been adequate time to transfer her to

another hospital. Additionally, no evidence was presented that

established that a transfer at the time she presented to the

hospital would have endangered the health and safety of

Ms. Rivera or the fetus.

72. The evidence did establish that at the time that

Ms. Rivera presented to Osceola on November 4, 2009, her

membranes had not been ruptured, but she was having persistent

contractions every two to three minutes with a duration of 30 to

50 seconds, and her contractions had started the evening before.

Her membranes were not ruptured until 6:06 p.m. Because she was

having persistent uterine contractions when she came to Osceola

on November 4, 2009, she, by statutory definition, had a

emergency medical condition as defined in section 395.002(8)(b).

The Weeks case does not stand for the proposition that a woman

having persistent uterine contractions does not have an

emergency medical condition. The court in Weeks held:

[T]he NICA notice must be given within a

reasonable time after the provider-

obstetrical relationship begins, unless the

occasion of the commencement of the

relationship involves a patient who presents

in an "emergency medical condition," as

defined by the statute, or unless the

provision of notice is otherwise "not

practicable." When the patient first

becomes an "obstetrical patient" of the

provider and what constitutes a "reasonable

time" are issues of fact. As a result,

conclusions might vary, even where similar

situations are presented. For this reason,

a prudent provider should furnish the notice

at the first opportunity and err on the side

of caution.

Id. at 619-620.

73. Dr. Maki had an opportunity to provide notice to

Ms. Rivera when she presented on October 21, 2009, and it would

have been reasonable for him to do so at that time.

Ms. Rivera's emergency medical condition on November 4, 2009,

did not excuse his failure to give notice on October 21, 2009.

Thus, Dr. Maki did not give notice as required by section

766.316.

74. At the time that Dr. Ojeda first saw Ms. Rivera at

7:26 p.m., on November 4, 2009, Ms. Rivera had an emergency

medical condition. She was in active labor with persistent

uterine contractions and her membranes had been ruptured by

Dr. Maki at 6:06 p.m. Additionally, the transfer of Ms. Rivera

at that time would have endangered the health and safety of both

Ms. Rivera and her fetus. Dr. Ojeda did inform Ms. Rivera that

he was a participant in the NICA Plan and gave her a copy of the

NICA brochure written in Spanish.

75. In Northwest Medical Center, Inc. v. Ortiz , 920 So. 2d

781, 784 (Fla. 4th DCA 2006), the court, (citing Galen of

Florida, Inc. v. Braniff , 920 So. 2d 781 (Fla. 1997)) discussed

the timing of the provision of notice required by section

766.316 and stated:

The supreme court [in Braniff ] determined

"this language makes clear that the purpose

of the notice is to give an obstetrical

patient an opportunity to make an informed

choice between using a health care provider

participating in the NICA Plan or using a

provider not a participant and thereby

preserving her civil remedies."

* * *

The court also determined that "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."

76. In Ortiz , the patient, Mrs. Ortiz, had preregistered

at the hospital over three months prior to her delivery. The

hospital did not give notice to the patient at the time of

preregistration. When Mrs. Ortiz came to the hospital for

delivery, she was having soft contractions. About five hours

after she arrived at the hospital, she was given an NICA

acknowledgment form to sign. A short time later a cesarean was

performed on Mrs. Ortiz because she was in critical condition.

The court held that the notice provided by the hospital was

ineffective.

Northwest [the hospital] knew that

Mrs. Ortiz intended to deliver her child

there three months before her actual

admission. At that time she was given

substantial information regarding her

medical care at the hospital and she signed

several consent forms. If the purpose of

the notice requirement is to give the

patient the choice to choose NICA protected

delivery or not, hospitals should give

notice at a time where such choice can still

be made. By waiting until an emergency

arises, the hospital is depriving the

patient of this choice. Therefore, by

failing to give notice of NICA participation

a reasonable time prior to delivery,

although able to do so, Northwest lost the

protection of NICA and the Ortizes are

entitled to pursue their civil remedies.

* * *

Northwest also argues that even if it could

have given an earlier notice, it satisfied

the statutory notice provision by informing

Mrs. Ortiz about NICA on the day she was

admitted to the hospital. The Ortizes

maintain this notice was ineffective because

it was not given to Mrs. Ortiz until a time

when she would have been unable to act on

the information. Because the purpose of the

notice is "to give an obstetrical patient an

opportunity 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," see

Braniff , 696 So 2d at 309-310, the notice

was ineffective in this case.

Ortiz

, 920 So. 2d at 785-786.

77. The notice which Dr. Ojeda provided was ineffective

because at the time that it was provided Ms. Rivera could not be

safely transferred to another hospital with a non-participating

physician. There was not adequate time for her to be able to

make a decision on whether she wanted to be treated by a

participating physician as opposed to a non-participating

physician, which is the purpose for the requirement in section

766.316 that notice be given.

78. Petitioner argues that OB Hospitalists should have

provided notice for Dr. Ojeda when Ms. Rivera first saw

Dr. Maki, because Dr. Ojeda was providing obstetrical services

based on a contract between OB Hospitalists and Osceola.

Petitioner's argument has merit to the extent that someone

should have given notice for the OB Hospitalists physicians who

were providing services at Osceola when Ms. Rivera came to

Osceola on October 21, 2009, or during the time between the

preregistration and the time Ms. Rivera presented to Osceola for

the birth of Kevin.

79. The circumstances in the instant case are similar to

the facts in University of Miami v. Ruiz , 916 So. 2d 865 (Fla.

3rd DCA 2005), in which the court held that the participating

physicians treating the obstetrical patient should have provided

notice as required by section 766.316. In Ruiz , Mrs. Ruiz, who

could not afford private medical care, came to the hospital to

preregister. She was given a NICA brochure and signed a form

acknowledging her receipt of the brochure. Neither the brochure

nor the acknowledgement form indicated that any of the

physicians on the staff were participants in the NICA Plan. A

sign near the entrance of the hospital stated that the hospital

was a University of Miami (University) facility.

80. Three weeks after Mrs. Ruiz preregistered, she

presented to the hospital in labor, with contractions and

ruptured membranes. She was seen by Dr. Norris, a University

professor, who was the medical director and attending physician

at the hospital. Three hours after she came to the hospital,

Dr. Barker, who was also employed by the University, took over

Dr. Norris' responsibilities. Neither doctor advised Mrs. Ruiz

of their status as participants in the NICA Plan at the time she

presented for delivery or at any time prior to that.

81. Dr. Norris was aware that he had a separate and

independent responsibility under section 766.316 to give notice,

but he thought that the hospital's notice provided at

preregistration satisfied his obligation to provide the

statutory notice. The physician also argued on appeal that they

were exempted from the notice provision because Mrs. Ruiz had an

emergency medical condition when they first saw her.

82. The court held that the notice provided by the

hospital was inadequate to satisfy the physician's independent

duty because the notice did not indicate that it was being given

on behalf of any physician associated with the hospital. Id. at

869.

In the instant case, notwithstanding the

absence of a prior professional relationship

between the University physicians and

Mrs. Ruiz, the physicians had a reasonable

opportunity to furnish notice at pre-

registration or during the weeks after pre-

registration but prior to the onset of

active labor. The record indicates that all

of the University physicians participated in

the NICA Plan and that their services at the

hospital were limited to maternity treatment

at the onset of labor. There is absolutely

no record evidence that it was impracticable

for Dr. Norris or Dr. Baker to give the NICA

Plan notice to Mrs. Ruiz. By pre-

registering three weeks ahead of her

eventual maternity admission, Mrs. Ruiz

clearly manifested an intent to deliver at

that hospital. In light of the fact that all

of the University's physicians participated

in the NICA Plan, and the University's

awareness of the circumstances under which

maternity patients typically arrived at the

hospital, we find that pre-registration

provided a reasonable opportunity for the

University's physicians to furnish the NICA

Plan notice on July 22, 1998, [the date of

pre-registration], until the advent of Mrs.

Ruiz' emergency medical condition, the NICA

statute required that proper notice be

given. The patient's hospital visit three

weeks later, admittedly on an emergency

basis, did not negate the physicians'

earlier statutory duty to provide the NICA

Plan notice.

Id. at 870.

83. In the instant case, all the physicians who would be

providing obstetrical services at Osceola to patients such as

Ms. Rivera, who was an unassigned patient, would be provided by

OB Hospitalists. OB Hospitalists required all its physicians at

Osceola, including Dr. Maki and Dr. Ojeda, to participate in the

NICA Plan. When Ms. Rivera pre-registered with Osceola she

manifested an intent to deliver at that hospital. At that time,

the physicians who were contracting with OB Hospitalists would

have been aware that one or more of the participating physicians

from OB Hospitalists would be providing obstetrical services to

Ms. Rivera when it came time for her to deliver her child. As

physicians who delivered babies at Osceola to unassigned

mothers, Dr. Maki and Dr. Ojeda would have been aware of the

circumstances under which maternity patients typically arrived

at the hospital when it was time to deliver. Preregistration

provided an opportunity for both Dr. Maki and Dr. Ojeda to

provide notice to Ms. Rivera.

84. In Ruiz , none of the physicians formed a professional

relationship with Mrs. Ruiz at the time of preregistration, and

the court found that the physicians should have given notice at

preregistration. In the instant case, Dr. Maki had formed a

professional relationship with Ms. Rivera on October 21, 2009,

when he saw her at the hospital. While Dr. Ojeda did not see

Ms. Rivera until November 4, 2009, he was aware that either he

or another OB Hospitalists physician more than likely would

deliver her baby because she was an unassigned obstetric patient

who had preregistered at the hospital.

85. It was practicable for notice to have been provided

for Dr. Maki and Dr. Ojeda prior to November 4, 2009. There are

a number of ways that notice could have been provided. The

hospital could have provided notice during the preregistration

process, if it was so inclined, as the hospital did in Sunlife

OB/GYN Services of Broward County, P.A. v. Million , 907 So. 2d

624 (Fla. 4th DCA 2005). OB Hospitalists could have done so on

behalf all its physicians at Osceola when obstetric patients

pre-registered at Osceola. Dr. Maki could have provided notice

for himself when he saw Ms. Rivera on October 21, 2009.

Dr. Ojeda could have provided notice to Ms. Rivera by mail

during the time between her preregistration and her visit to

Osceola to deliver her child. Health care providers

participating in the NICA Plan know that it is their

responsibility to provide NICA notice; therefore, it is up to

them to find a way to provide timely notice to their patients.

86. Neither Dr. Maki nor Dr. Ojeda provided the statutory

notice required by section 766.316.

87. Petitioner moved that a finding be made that Dr. Pera,

Dr. Medina, Pediatrix, and J. Ralpha Medical, P.A., did not have

statutory immunity under the NICA Plan. The Administrative Law

Judge does not have jurisdiction to make a determination whether

any of the parties have statutory immunity. See §§ 766.310-

766.316, Fla. Stat.

88. Petitioner raised several issues on the

constitutionality of sections 766.30-766.316. The

Administrative Law Judge does not have jurisdiction to rule on

the constitutionality of statutes. See generally Fla. Hosp. v.

Agency for Healthcare Admin. , 823 So. 2d 844, 849 (Fla. 1st DCA

2002).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the injuries sustained by Kevin Terron-Otero

are compensable under the NICA Plan.

It is further ORDERED that Osceola Regional Medical Center

complied with the notice provisions of section 766.316; that the

participating physicians, Dr. Lance Maki and Dr. Ezer Ojeda, did

not comply with the notice provisions of section 766.316; that

Dr. Angelina Pera and Dr. Tanya Medina are not participating

physicians; and that Dr. Angelina Pera, Dr. Tanya Medina,

Pediatrix Medical Group of Florida, Inc., and J Rapha Medical,

P.A., did not give notice as set forth in section 766.316.

It is further ORDERED that the parties are accorded 30 days

from the date of this Order to resolve, subject to approval of

the Administrative Law Judge, the amount and manner of payment

of an award to Ms. Rivera; the reasonable expenses incurred in

connection with the filing of the claim, including reasonable

attorney's fees and costs; and the amount owing for expenses

previously incurred. If not resolved within such period, the

parties shall so advise the Administrative Law Judge, and a

hearing will be scheduled to resolve such issues. Once

resolved, an award will be made consistent with section 766.31.

It is further ORDERED that in the event Petitioner files an

election of remedies declining or rejecting NICA benefits, this

case will be dismissed and DOAH's file will be closed.

DONE AND ORDERED this 11th day of October, 2012, in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of October, 2012.

ENDNOTE

1/ Section 766.309(1) does not require that the Administrative

Law Judge make a determination of whether the hospital has paid

its assessment to the NICA Plan. Unlike the definition of

participating physician, which requires the physician to have

paid his or her assessment for the NICA Plan, the definition of

hospital only requires that it be licensed. In the instant

case, the evidence also established that Osceola had paid its

assessment.

COPIES FURNISHED :

(Via Certified Mail)

Maria D. Tejedor, Esquire

Diez-Arguelles and Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

(Certified Mail No. 7011 1570 0001 1540 6823)

Joseph Scott Justice, Esquire

Ringer, Henry, Buckley and Seacord, P.A.

Post Office Box 4922

Orlando, Florida 32802-4922

(Certified Mail No. 7011 1570 0001 1540 7042)

Jeffrey P. Brock, Esquire

Smith, Hood, Loucks, Stout,

Bigman, and Brock P.A.

444 Seabreeze Boulevard, Suite 900

Post Office Box 15200

Daytona Beach, Florida 32118

(Certified Mail No. 7011 1570 0001 1540 7059)

Karissa L. Owens, Esquire

Rissman, Barrett, Hurt,

Donahue and McLain, P.A.

201 East Pine Street, Suite 1500

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0001 1540 7066)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 7073)

Barbara Green, Esquire

Barbara Green, P.A.

Suite 209

300 Sevilla Avenue

Coral Gables, Florida 33134

(Certified Mail No. 7011 1570 0001 1540 7080)

Richard B. Schwamm, Esquire

Haliczer Pettis and Schwamm

Suite 475

225 East Robinson Street

Orlando, Florida 32801

(Certified Mail No. 7011 1570 0001 1540 7097)

Kevin Thomas O'Hara, Esquire

O'Hara Law Firm, P.A.

Suite 2040

220 East Central Parkway

Altamonte Springs, Florida 32701

(Certified Mail No. 7011 1570 0001 1540 7103)

Kimberly E. Lorenz, Esquire

Fisher, Rushmer, Werrenrath, Dickson,

Talley & Dunlap, P.A.

Post Office Box 712

Orlando, Florida 32802-0712

(Certified Mail No. 7011 1570 0001 1540 7110)

Mark R. Ahrens, Esquire

McEwan Martinez Dukes P.A.

108 East Central Boulevard

Orlando, Florida 32801

(Certified Mail No. 7011 1540 0001 1540 7127)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7011 1540 0001 1540 7134)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 7141)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the agency clerk of the Division of Administrative

Hearings within 30 days of rendition of the order to be

reviewed, and a copy, accompanied by filing fees prescribed by

law, with the clerk of the appropriate District Court of Appeal.

See § 766.311(1), Fla. Stat., and Fla. Birth-Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).