13-000184N Irene Rodriguez, On Behalf Of And As Parent And Natural Guardian Of Elijah Theard, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 25, 2015.

Summary: Hospital failed to provide notice; physicians provided notice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IRENE RODRIGUEZ, on behalf of

and as parent and natural

guardian of ELIJAH THEARD, a

minor ,

Petitioner ,

vs. Case No. 13 - 0184N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION ,

Respondent,

and

BILL DUKE, M.D. ; BRENDA HARRIS -

WATSON, M.D. ; MANUEL M. FIESTA,

M.D. ; AND UNITED SURGICAL

ASSISTANTS,

Intervenor s .

/

FINAL ORDER ON NOTICE

Pursuant to notice, a final hearing on the issue of notice

was held in this case on November 22, 2013, in Lakeland, Florida,

before Susan Belyeu Kirkland, an Administrative Law Judge of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Carlos R . Diez - Arguelles, Esquire

Desiree E. Bannasch, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue , Suite 100

Orlando, Florida 32803

For Respondent: Leanne B. Wagner, Esquire

Frank, Weinberg, and Black, P.A.

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenors Bill Duke, M.D., and Brenda Harris - Watson,

M.D.:

Michael R. D ' Lugo, Esquire

Wicker, Smith, O ' Hara, McCoy & Ford, P.A.

390 North Orange Avenue, Suite 1000

Orlando, Florida 32801

For Intervenors Manuel M. Fiesta, M.D., and United Surgical

Assistants:

Marcel Manuel Flemming, Esquire

Butler, Pappas, Weihmuller, Katz,

& Craig, LLP

80 Southwest 8th Street, Suite 3300

Miami, Florida 33130

STATEMENT OF THE ISSUES

The issues in this case are whether Bill Duke, M.D.;

Brenda Harris - Watson; and Lakeland Regional Medical Center

provided notice as required by section 766.316, Florida Statutes,

and whether Manuel M. Fiesta, M.D., and United Surgical

Assistants were required to provide notice pursuant to section

766.316.

PRELIMINARY STATEMENT

On January 8, 2013, Petitioner, Irene Rodriguez, on behalf

of and as parent and natural guardian of Elijah Thread (Elijah),

a minor, filed a Petition Under Protest Pursuant to F lorida

Statute Section 766.301 et seq. (Petition) with DOAH.

The Petition provided that Bill Duke, M.D.; Brenda Harris -

Watson, M.D.; and Manuel Fiesta, M.D., were the physicians

providing obstetric services at the birth of Elijah, who was born

at Lakela nd Regional Medical Center (Lakeland Regional). DOAH

served the Birth - Related Neurological Injury Compensation

Association (Association) with a copy of the Petition on

January 28, 2013. DOAH served copies of the Petition on Lakeland

Regional Medical Cent er and Dr. Duke on January 21, 2013. DOAH

served Dr. Fiesta with a copy of the Petition on January 22,

2013. DOAH served Dr. Harris - Watson with copies of the Petition

on January 21 and 22, 2013.

On March 13, 2013, Dr. Duke filed IntervenorÓs Motion to

In tervene, which was granted by Order dated March 20, 2013. On

March 20, 2013, Dr. Harris - Watson filed IntervenorÓs Motion to

Intervene, which was granted by Order dated March 29, 2013. On

August 29, 2013, Dr. Fiesta filed a Motion to Intervene, which

was granted by Order dated September 10, 2013. On September 25,

2013, Dr. Fiesta and United Surgical Assistants filed an Amended

Motion to Intervene, which was granted by Order dated October 8,

2013. Lakeland Regional Medical Center did not file a petition

t o intervene in this proceeding.

On June 28, 2013, Respondent filed a Motion for Summary

Final Order, alleging that Elijah sustained a birth - related

neurological injury as defined in section 766.302(2), Florida

Statutes. On July 10, 2013, a Summary Final Order on

Compensability was entered, finding that Elijah sustained a

birth - related neurological injury, which is compensable under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan). Jurisdiction was retained on the issues of notice an d

award.

The final hearing, which was scheduled for October 23, 2013,

was continued and rescheduled for November 22, 2013.

Intervenors, Dr. Duke and Dr. Harris - Watson, notice d

Ms. Rodriguez for a deposition, which she did not attend.

Dr. Duke and Dr. Harr is - Watson filed a Motion to Strike

Ms. Rodriguez as a witness. The motion was heard by telephonic

conference call on November 18, 2013, at which time Ms. Rodriguez

was ordered to appear for her deposition on the following day.

Ms. Rodriguez did not appea r for her deposition as ordered. On

November 19, 2013, Intervenors, Dr. Duke and Dr. Harris - Watson,

filed a Motion to Strike the Testimony of Irene Rodriguez, which

was granted by Order dated November 20, 2013.

At the final hearing, Intervenors, Dr. Duke and Dr. Harris -

Watson, called the following witnesses: Dr. Harris - Watson,

Lori Payne Garcia, Jane Ann Carlson, Anjani Roqed, Kayla Renee

Willis, and Maria Annette Murphy. Dr. DukeÓs testimony was

presented by deposition.

Intervenor, Dr. Fiesta, testifie d on his own behalf.

Dr. Fiesta and United Surgical Assistants called Carol Ann Fox as

a witness.

Neither Respondent nor Petitioner presented any live

witnesses. Petitioner presented the testimony of Heather Ward

and Maria Annette Murphy by deposition.

T he E xhibits numbered 1, 2, 3, 4, 5, 8, 9, 10, 12, 15, 16,

26, 28, 31, and 50 of Intervenors, Dr. Duke and Dr. Harris -

Watson , were entered in evidence. The E xhibits numbered 1 and 27

of Dr. Fiesta and United Surgical Assistants were admitted in

evidence. Respondent did not present any exhibits. PetitionerÓs

Exhibits 2, 3, 4, 6, 7, 8, 9, and 10 were admitted in evidence.

The court reporter did not accurately reflect all the exhibits

that were entered in evidence, and the enumeration of the

exhibits above are based on the exhibits that were numbered and

initialed at the final hearing by the undersigned.

The Transcript of the final hearing was filed by the court

reporter, as instructed, on January 3, 2014. The parties agreed

to file their proposed final ord ers within ten days of the filing

of the transcript. Intervenors filed their Proposed Final Order

on January 13, 2014. Respondent did not file a proposed final

order. At 4:56 p.m. , on January 13, 2014, Petitioner filed

PetitionerÓs Motion for Extension of Time to File Proposed Final

Order, stating: ÐPetitioners are currently working on other

matters of great importance.Ñ The following day Petitioner filed

PetitionerÓs Supplemental Motion for Extension of Time to File

Proposed Final Order, stating that Petitioner had never been

given notice that the Transcript had been filed.

Intervenors opposed the motion for extension of time, and

the motion was heard by telephonic conference call on January 17,

2014. Petitioner filed her Proposed Final Order on Janua ry 16,

2014. On January 21, 2014, an Order was entered providing that

the Intervenors could file a response to PetitionerÓs Proposed

Final Order on or before January 31, 2014.

On January 22, 2014, Intervenors, Dr. Fiesta and United

Surgical Assistants, fi led IntervenorsÓ Manuel Fiesta, M.D. , and

United Surgical Assi s tants Proposed Final Order. On January 28,

2014, Intervenors, Dr. Duke and Dr. Harris - Watson, filed a Notice

to the Court of the IntervenorsÓ Intent Not to Supplement T heir

Proposed Final Orde r. The partiesÓ Proposed Final Orders have

been considered in the preparation of this Final Order on Notice.

FINDINGS OF FACT

1. Ob Hospitalist Group contracts with Lakeland Regional

Medical Center to provide physicians who will render obstetric

and gyne cological services to unassigned patients. An example of

an unassigned patient is a patient who is not being seen by a

private physician for prenatal care, but is receiving prenatal

care at the local health department.

2. On December 5, 2009, Ms. Rodrigu ez, who is the mother

and natural guardian of Elijah Theard, a minor, presented to

Lakeland Regional Medical Center. She was approximately 18 to 19

weeks ' pregnant and had been seen at the local health department

on December 4, 2009, for prenatal care.

3. During Ms. RodriguezÓs visit to Lakeland Regional

Medical Center on December 5, 2009, neither the hospital nor Ob

Hospitalist Group provided her with notice concerning the Plan.

4. On March 21, 2010, Ms. Rodriguez returned to Lakeland

Regional Medical Center with a complaint of vaginal bleeding.

She was seen by Dr. Harris - Watson, who was employed by Ob

Hospitalist Group.

5. During Ms. RodriguezÓs visit to Lakeland Regional

Medical Center on March 21, 2010, Anjani Roqed, a patient access

representativ e from Lakeland Regional Medical Center, provided

Ms. Ro d riguez with a welcome packet, which included a living

will, a patientÓs rights and responsibilities form, a HIPPA form,

a patient safety form, a form with discharge questions, and a

brochure from the Association, explaining the Plan.

6. Ms. Roqed does not specifically recall the encounter

with Ms. Rodriguez on March 21, 2010, but it was the policy of

Lakeland Regional Medical Center to provide the brochure to an

obstetric patient and to have the pa tient sign a form

acknowledging that she received the brochure. Part of

Ms. RoqedÓs standard practice was to witness the patientÓs

execution of the acknowledgment form.

7. Ms. Rodriguez signed the form acknowledging that she had

been provided informatio n prepared by the Association. The form

stated:

Ob Hospitalist _________________________

Group

NEUROLOGICAL INJURY COMPENSATION INFORMATION

(See Section 766.316, Florida Statutes)

I have been furnished information by Ob

Hospitalist Group, Inc., prepared by the

Florida Birth - Related Neurological Injury

Compensation Association and have been

advised that my doctor and all nurse midwives

associated with my doctorÓs group p articipate

in the Florida Birth - Related Neurological

Injury Compe nsation program. Wherein,

certain limited compensation is available in

the event certain neurological injury may

occur during labor, delivery or

resuscitation. For specifics on the program,

I understand I can contact the Florida Birth -

Related Neurologica l Injury Compensation

Association (NICA), 1435 East Piedmont Drive,

Suite 101, Tallahassee, Florida 32312, (850) -

488 - 8191. I further acknowledge that I have

received a copy of the brochure prepared by

NICA.

Ob Hospitalist Group, Inc., physicians:

Dr. Bill Duke

Dr. Mike Baird

Dr. Brenda Harris - Watson

Dr. Lisa Davis

Ms. Roqed signed the acknowledgment form executed by

Ms. Rodriguez, indicating that Ms. Roqed witnessed Ms. Rodriguez

signing the acknowled gment form.

8. Ms. RoqedÓs normal practice as a patient access

representative was to make computerized notes of her activities

with a patient at or about the time that she performed the

activities. The computer records of Lakeland Regional Medical

Center show that on March 21, 2010, Ms. Roqed had an encounter

with Ms. Rodriguez an d provided Ms. Ro driguez with the brochure

prepared by the Association. Her computerized notes state:

13763: RCVD ORDER TO ADMIT AS OBED/SCNNED,

PT IS FROM ER. UPDATED INFO W/ PT & IN SMS,

PT GVN WELPKT, NICA, HIPPA, ADLW INFO. PT

SIGNED SUM, NICA, HIPPA, PT F/C ALL FMS

SIGNED SCNND, PLCED ARM BAND ON PT

NO CC OR ID. RAN PP STS PT IS ELIG. FOR

MEDIPASS. BCBS IS NOT RESPONDING. PT IS TO

C/V OR D/C. . . . . . .

*OUTPT DSCH: HOME

9. Ms. Roqed interpreted her computerized notes as follows:

It say s , I received orders from Meadow Aribe

(phonetic sp.), which is our Î actually itÓs

our emergency department, and I scanned that

in the system as well. The patient came up

from the ER. Updated her info with her in

our SMS system. The patient was given the

welcome packet, which included the NICA,

HIPPA and the living will and the other info

I specified earlier. Patient signed sum.

The summary is consent for treatment and

billing the in surance.

She signed her NICA pamphlet Î or NICA form

for the NICA pamphlet, which is this. She

signed HIPPA, which is for privacy. Patient

financial counseling, which if she has

Medicaid and the Medicaid was to fall

through, she would be responsible for her

bill. I placed an arm band on the patient.

She had no insurance card or ID. I ran the

passport system, which is the Î that is to

verify what type of insurance she has, and it

says that she has Medipass and that Blue

Cross/Blue Shield was not respon ding. And

she was either to convert or discharge, which

means if she was to convert she stays

inpatient to have the baby. If she

discharges, that means she goes home.

10. The medical records show that Ms. Rodriguez signed a

Notice of Privacy Practices form which is dated March 21, 2010.

The records also show that she signed a Patient Summary form

dated March 21, 2010. These would have been documents that

Ms. Roqed would have provided to Ms. Rodriguez when she presented

at Lakeland Regional Medical Cen ter on March 21, 2010. The

signature on the Patient Summary form and the Notice of Privacy

Practices dated March 21, 2010, are substantially similar to the

signature on the form acknowledging receipt of the brochure

prepared by the Association.

1 1 . The g reater weight of the evidence establishes that on

March 21, 2010, Ob Hospitalist Group, Inc., provided the notice

required by section 766.316 for Dr. Duke and Dr. Harris - Watson,

the doctors who provided obstetric services at the birth of

Elijah on May 1, 2 010.

1 2 . On May 1, 2010, Ms. Rodriguez presented to Lakeland

Regional Medical Center to deliver Elijah. At the time of her

arrival, she was having contractions and her membranes had

ruptured. Within an hour of her arrival at the hospital,

Ms. Rodriguez met with Kayla Renee Willis, another patient access

representative for Lakeland Regional Medical Center at the time.

Ms. WillisÓ duties included providing Ms. Rodriguez with a

welcome packet, which included the brochure prepared by the

Association and the acknowledgment form, which was to be signed

by Ms. Rodriguez. At this visit, Ms. Willis provided

Ms. Rodriguez with two acknowledgment forms to sign.

Ms. Rodriguez signed both acknowledgment forms, and Ms. Willis

signed both forms as a witness to Ms. Ro driguezÓs execution of

the forms.

1 3 . One of the acknowledgment forms signed by Ms. Rodriguez

on May 1, 2010, stated:

RECEIPT ACKNOWLEDGEMENT OF FLORIDA BIRTH -

RELATED NEUROLOGICAL INJURY COMPENSATION

INFORMATION

(See Section 766.316, Florida Statutes)

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 Lakeland

Regional Medical Center, Inc., 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. For

specifics on the program, I understand I can

contact the Florida Birth - Related

Neurologic al Injury Compensation Association,

Post Office Box 14567, Tallahassee, Florida

32317 - 4567, (850)488 - 8191.

I specifically acknowledge that I have

received a copy of the Brochure prepared by

NICA.

1 4 . The other acknowledgment form, which Ms. Rodrigue z

signed on May 1, 2010, stated:

OB Hospitalist Group ___________________

NEUROLOGICAL INJURY COMPENSATION INFORMATION

(See Section 766.316, Florida Statutes)

I have been furnished information by OB

Hospitalist Group, Inc., by the Florida Birth

Relate d Neurological Injury Compensation

Association, and have been advise that my

doctor and all nurse midwives Associated with

my doctorÓs group participate in the Florida

Birth Related Neurological Injury

Compensation Program, wherein, certain

limited compens ation is available in the

event certain neurological injury may occur

During labor delivery or resuscitation. For

specifics on the program, I understand I can

contact the Florida Birth Related

Neurological Injury Compensation Association

(NICA), 1435 East Piedmont Dr. Suite 101

Tallahassee, Florida 32312 (904)488 - 8 1 91 . I

further acknowledge that I have received a

copy of the brochure Prepare by NICA.

OB Hospitalist Group, Inc. Physicians:

Dr. Bill Duke

Dr. Shawn Simpson

Dr. Brenda Harris - Watson

Dr. Lisa Davis

1 5 . Ms. Willis documented her encounter with Ms. Rodriguez

on May 1, 2010, with computerized notes, which she entered into

the computer on May, 1, 2010, and which state:

014773: RECVD OR DER TO ADM PT AS OBED

05012010. . PT VERIFIED DEMO, SIGNED SUMM,

PFRF , NICA & HIPPA.. PT COULD NOT FIND ID AND

INS CARDS. . .HDX RAN PT HAD ACTIVE COV

W/BCBS & MCAID. . NO QUOTE TO PT.

.ADLW/WELCOME PKT GIVEN. . . SCND ALL DOC. .

O 1 4 77 3: RECVD ORDER TO ADM PT AS INPT STATUS

05012010. . .ORDER WRITTEN 05012010@100. . .

SCND DOC. . .

1 6 . Ms. Willis interpreted her computerized notes as

follows:

My imprint of my notifying myself, my number,

014773, received order to admit patient as

OBED 5/01/2010. Patien t verified demo,

signed summary, P - F - R - F NICA and HIPPA.

Patient could not find ID and insurance

cards. HDX ran. Patient has ACU coverage

with Blue Cross and Medicaid. No quote to

patient. ADOW welcome packet given, scan all

doc.

Again, I noted 0 1 4773 , received order to

admit patient inpatient status, 5/01/2010.

Order written 5/01/2010 at 100 scan doc.

1 7 . In her responses to requests for admissions, which were

entered in evidence, Ms. Rodriguez admitted that the signatures

on the two acknowledgment forms were hers, but stated that she

had no recollection of signing the documents. The signatures on

the acknowledgment forms signed on May 1, 2010, are substantially

similar to the signature on the acknowledgment form dated

March 21, 2010.

1 8 . Dr. Duke was the first obstetrician to perform a

physical evaluation of Ms. Rodriguez on May 1, 2010. When his

shift ended at approximately 7:00 a.m. , on May 1, 2010, he

transferred the responsibility for the care of Ms. Rodriguez to

Dr. Harris - Watson. On May 1, 2010, b oth Dr. Duke and Dr. Harris -

Watson were employed by Ob Hospitalist Group, Inc., and were

participating physicians in the Plan.

1 9 . The Petition named Dr. Manuel Fiesta as a physician who

provided obstetrical services at the birth of Elijah. At th e

time of ElijahÓs birth, Dr. Fiesta was a retired physician, who

was licensed by the State of Florida. He no longer practiced

medicine, and was not a participating physician in the Plan.

20 . Dr. Harris - Watson determined that Ms. Rodriguez

required a Cae sarean section for her delivery. Dr. Fiesta

participated in the surgery as a surgical assistant. He was not

providing obstetrical services as a physician at the time of the

delivery. Petitioner acknowledges in her Proposed Final Order

that Dr. Fiesta Ðw as not working as an obstetricianÑ at the time

of the birth of Elijah. Dr. Fiesta did not pay an assessment

into the Plan.

CONCLUSIONS OF LAW

2 1 . 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).

2 2 . The only issue that was to be determined in the final

hearing is whether notice was provided pursuant to section

766.316, which 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 obstetrica l

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

patientÓs rights and limitations under th e

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

requ irements 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.

2 3 . Section 395.002(8)(b) defines "emergency medical

cond ition" as follows:

(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.

2 4 . Section 766.309(1)(d) provides:

(1) The administrative law judge shall make

the following det ermination based upon all

available evidence:

* * *

(d) Whether if raised by the claimant or

other party, the factual determinations

regarding the notice requirements in

s. 766.316 are satisfied. The administrative

law judge has the exclusive j urisdiction to

make these factual determinations.

2 5 . Petitioner contends that Dr. Duke, Dr. Fiesta,

Dr. Harris - Watson, and Lakeland Regional Medical Center did not

give sufficient notice pursuant to section 766.316. Intervenors,

Dr. Duke and Dr. Harris - Watson, contend that sufficient notice

was provided pursuant to section 766.216. Dr. Fiesta and United

Surgical Assistants assert that Dr. Fiesta was not providing

obstetrical services as a physician at the birth of Elijah;

therefore, Dr. Fiesta was not required to provide notice pursuant

to section 766.316. As the proponent of the proposition that

appropriate notice was given or that notice was not required, the

burden on the issue of notice is upon the Intervenors. Tabb v.

Fla. Birth - Related Neurologi cal Injury Comp. Ass'n. , 880 So. 2d

1253, 1257 (Fla. 1st DCA 2004).

2 6 . Although Ms. Ro q ed does not independently remember her

encounter with Ms. Rodriguez on March 21, 2010, she follows her

normal routine and practice when registering obstetrical

patien ts, which includes giving the brochure to the patient 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 p rove the conduct of the organization on a particular occasion

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

(2012); see also Tabb , 880 So. 2d at 1259. The computer records

of Lakeland Regional Medical Center show that on March 21, 2010,

Ms. Roqed gave Ms. Rodriguez a brochure prepared by the

Association and that Ms. Rodriguez signed the acknowledgment

form. Ms. Roqed also identified her signature on the

acknowledgment form, indicating that she witnessed Ms. Rodriguez

sign the acknowledgm ent form.

2 7 . Section 766.316 requires that "[e]ach hospital with a

participating physician on its staff and each participating

physician" shall provide notice. An employee of Lakeland

Regional Medical Center provided the brochure, but she did not

provid e it on behalf of the hospital. The acknowledgment form

dated March 21, 2010, clearly indicates Ob Hospitalist Group,

Inc. , is providing the notice and not the hospital. Dr. Duke and

Dr. Harris - Watson were specifically named in the acknowledgment

form da ted March 21, 2010.

2 8 . The greater weight of the evidence establishes that

Dr. Duke and Dr. Harris - Watson provided the notice required by

section 766.31 on March 21, 2010, and that the notice was

sufficient.

2 9 . Petitioner contends that the acknowledgme nt form dated

March 21, 2010, was not signed by Ms. Rodriguez and that the

document was falsified. This argument is without merit. The

greater weight of the evidence establishes that Ms. Rodriguez did

sign the acknowledgment form dated March 21, 2010. S ection

766.316 provides that a signed acknowledgment creates a

rebuttable presumption that notice has been provided, and

Petitioner has not rebutted the presumption that notice was

provided by Dr. Duke and Dr. Harris - Watson on March 21, 2010.

30 . In Week s 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

con struction, 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 prima ry purpose of the notice

requirement.

3 1 . Ms. Rodriguez was given a brochure prepared by the

Association when she presented to the Lakeland Regional Medical

Center on May 1, 2010, and she did sign acknowledgments from

Lakeland Regional Medical Center and from Ob Hospitalist Group,

Inc. , on that date. However, at the time she was given the

brochure and signed the acknowledgment forms, she was in labor

and her membranes had ruptured. Thus, by definition, she had an

emergency medical condition. § 766.302( 8)(b)3. It was too late

at that time for Lakeland Regional Medical Center to give notice

pursuant to section 766.316 when it had opportunities prior to

Ms. RodriguezÓs admission on May 1, 2010, to provide notice.

3 2 . The court in Weeks held:

[T]he NICA n otice 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 si tuations 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.

3 3 . Lakeland Regional Medical Center could have provided

Ms. Rodriguez with notice when she presented at the hospital on

December 5, 2009, but it did not do so. At that time, hospital

staff were aware that Ms. Rodriguez was pregnant and had been

seen for prenatal care at the local health department. Normally,

the obstetric patients receiving pr enatal care at the health

department would deliver at Lakeland Regional Medical Center.

3 4 . When Ms. Rodriguez presented at Lakeland Regional

Medical Center on March 21, 2010, the hospital had another

opportunity to provide notice, but it did not do so on behalf of

the hospital. The hospital did provide notice on behalf of Ob

Hospitalist Group, Inc., which included Dr. Duke and Dr. Harris -

Watson. On March 21, 2010, Ms. Rodriguez would have had a

reasonable time to change physicians, if she did not want h er

child delivered by a participating physician.

3 5 . By May 1, 2010, it was too late for Ms. Rodriguez to

make a meaningful choice of whether to select another provider

prior to delivery. She was in labor and her membranes had

ruptured. Thus, the notice provided by Lakeland Regional Medical

Center on May 1, 2010, was insufficient to meet the requirements

of section 766.316.

3 6 . Dr. Fiesta was not performing obstetrical services at

the birth of Elijah. He did not pay the annual assessment for

the Plan, and was not a participating physician as defined in

section 766.302(7). Thus, Dr. Fiesta was not required to provide

notice pursuant to section 766.316.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. Lakela nd Regional Medical Center failed to provide

notice for the hospital as required by section 766.316.

2. Dr. Duke provided notice as required by section 766.316.

3. Dr. Harris - Watson provided notice as required by section

766.316.

4. Dr. Fiesta was not a participating physician and was not

required to provide notice pursuant to 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 amoun t and manner of payment of

an award to Ms. Rodriguez; 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 withi n 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 with prejudice and DOAH's file will be

closed.

DONE AND ORDERED this 25th day of February , 2014 , 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

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of February , 2014 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahas see, Florida 32308

(Certified Mail No. 7013 2630 0000 4176 6806)

Leanne B. Wagner, Esquire

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7013 2630 0000 4176 6820)

Michael R. D ' Lugo, Esquire

Wicker, Smith, O ' Hara, McCoy,

& Ford, P.A.

390 North Orange Avenue, Suite 1000

Orlando, Florida 3280 1

(Certified Mail No. 7013 2630 0000 4176 6837)

Marcel Manuel Flemming, Esquire

Frank Bryant Blevins, Esquire

Butler, Pappas, Weihm uller, Katz,

& Craig, LLP

80 Southwest 8th Street, Suite 3300

Miami, Florida 3313 0

(Certified Mail No. 7013 2630 0000 4176 6844)

Carlos R. Diez - Arguelles, Esquire

Desiree E. Bannasch, Esquire

Diez - Arguelles and Tejedor, P.A.

505 North Mills Avenue , Sui te 100

Orlando, Florida 32 803

(Certified Mail No. 7013 2630 0000 4176 6851)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7013 2630 0000 4 176 6868)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7013 2630 0000 4176 6875)

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 b y filing the original notice of administrative appeal

with the a gency c lerk 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).