13-003287N Cicorra Cervantes, As Personal Representative Of The Estate Of Cimayah Rayvonne Rose Thurston, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 24, 2016.

Summary: Hospital and physician provided notice as required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CICORRA CERVANTES, as Personal

Representative of the Estate of

CIMAYAH RAYVONNE ROSE THURSTON,

a deceased minor,

Petitioner,

vs. Case No. 13 - 3287N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIAT ION,

Respondent,

and

GREGORY DELONG, M.D., KEY WEST

HMA PHYSICIAN MANAGEMENT, LLC,

AND KEY WEST HMA, LLC, d/b/a

LOWER KEYS MEDICAL CENTER,

Intervenors.

_______________________________/

FINAL ORDER ON NOTIC E

Pursua nt to notice, a final hearing on the issue of notice

was held in this case on Septem ber 2 4 , 201 4 , via video

teleconference with sites in Key West and Tallahassee , Florida,

before Barbara J. Staros , an Administrative Law Judge of the

Division of Administrat ive Hearings (DOAH).

APPEARANCES

For Petitioner: Robert C. Tilghman, Esquire

Robert C. Tilghman, P.A.

One Biscayne Tower, Suite 2670

2 South Biscayne Boulevard

M iami, Florida 33131

Nathan E. Eden, Esquire

Law Office of Nathan E. Eden P . A .

302 Southard Street, Suite 205

Key West, Florida 33040

For Respondent: Davi d W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenors Gregory DeLong , M.D., and Key West HMA

Physician Management, LLC :

Denise L. Dawson, Esquire

Hall Booth Smith, PC

Suite H, 2nd Floor

9250 Alternate A1A

North Palm Beach, Florida 33403

For Interve nors Key West HMA, LLC, d/b/a Lower Keys Medical

Center :

Rebecca J. Davis, Esquire

Michael A. Petruccelli, Esquire

Fann and Petruccelli, P.A.

5100 North Federal Hig hway, Suite 300B

Fort Lauderdale, Florida 33308

STATEMENT OF THE ISSUE

The issue in this case is whether Gregory Delong , M.D. , and

Key West HMA Physician Management, LLC ; and Key West HMA, LLC,

d/b/a Lower Keys Medical Center provi ded notice as required by

section 766.316, Florida Statutes .

PRELIMINARY STATEMENT

On August 26 , 2013, Petitioner, Cicorra Cervantes , as

Personal Representative of the Estate of Cimayah Rayvonne Rose

Thurston (Cimayah ), a deceased minor, filed a Petition for

Benefits Pursuant to Florida Statute Section 766.301 et seq.

(Petition) with DOAH. The Petition stated that it was filed

pursuant to court order and was being filed under protest, and

that the Petition only sought benefits as an alternative remedy

in the event a determination is made that the claim is

compensable under the plan and that proper notice was provided to

Petitioner.

The Petition named Gregory DeLong , M.D. , as the physician

providing obstetric services at the birth of Cimayah , who was

born at L ower Keys Medical Center (L ower Keys ). DOAH served the

Birth - Related Neurological Injury Compensation Association with a

copy of the Petition on September 4 , 2013. DOAH served copies of

the Petition on L ower Regional Keys Medical Center and Dr. DeLo ng

on September 3 , 2013.

On November 7, 2013, Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA), filed a

Motion for Summary Final Order on the issue of compensability.

On November 26, 2013, NICA filed an Amended Motio n for Summary

Final Order.

On November 27, 2013, Dr. DeLong and Key West HMA Physician

Management, LLC , filed a Motion to Intervene , which was granted

by Order dated December 6 , 2013. On December 2, 2013, Key West

HMA, LLC , d/b/a Lower Keys Medical Cente r filed a Motion to

Intervene , which was granted by O rder dated December 11, 2013.

The Intervenors also moved to Join NICAÓs Amended Motion for

Summary Final Order.

On December 1 2 , 2013, a Partial Summary Final Order on

Compensability was entered, findin g that Cimayah 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 and

award.

The final hearing, which was sche duled for July 17 and 18,

2014 , was continued and rescheduled for Septe mber 2 4 and 25,

2014 . The hearing took place on September 24, 2014, and

concluded that day.

At the final hearing, Petitioner called the following

witnesses: Eugenia Butler, Donette Ce rvantes , and

Cicorra Cervantes. PetitionerÓs Exhibits 1A, 1B, 2A , and 2B were

admitted into evidence.

Intervenors did not present any live witnesses. Intervenors

presented the deposition testimony of Eugenia Butler,

Ciccora Cervantes, Donette Cervantes, Atavia Lopez - Dor,

Dr. Gregory DeLong, Naomi Thomas, and the video deposition of

Marcus Thurston. These depositions were admitted into evidence

as IntervenorsÓ Joint Exhibits numbered 6A through 6H .

Additionally, Intervenors DeLong and Key West HMA Physi cian

Management , LLC Ós E xhibits numbered 1, 2, and 4 were admitted

into evidence. A ruling on IntervenorsÓ Exhibit 3 was reserved.

Upon consideration, Intervenors DeLong and Key West Physician

M anagement , LLC Ós Exhibit 3 is admitted. The E xhibits number ed 1

through 5 of Intervenor Lower Keys were admitted in evidence.

Intervenor Lower Keys' Exhibit 7 was proffered. Respondent did

not present any witnesses or offer any exhibits.

The Transcript of the final hearing was filed on October 14 ,

2014. Petit ioner and Intervenors timely filed Proposed Final

Orders on October 24, 2014, which were duly considered in the

preparation of this Final Order on Notice. Respondent did not

file a proposed final order.

FINDINGS OF FACT

1. Cicorra Cervantes first prese nted to Key West HMA

Physician Management, LLC, an OB/GYN practice located in Key

West, Florida, on September 23, 2008, for her first prenatal

visit. Her treating physician was Gregory DeLong, M.D., a b oard -

c ertified obstetrician who was a participating p hysician in the

Plan, as defined by s ection 766.302(7). Dr. DeLong currently

works in his office in Key West one week a month, and is in

Daytona Beach the other three weeks.

2. Ms. Cervantes was given several forms to fill out by the

receptionist. She filled out, signed, and dated a medical

questionnaire, an admission form called ÐWelcome to Our

Practice,Ñ a No Show and No Call form , a prescription renewal

form , a financial policy form , a Privacy Notice Acknowledgement

form, and a Notice of Changes Agr eement. These forms were all

dated September 22, 2008.

3. Following completion of the forms provided by the

receptionist, Ms. Cervantes was then seen by Dr. DeLongÓs medical

assistant, Kay Van de Gejuchte. Ms. Cervantes recalled that

Ms. Van de Gej u c h te took her vital signs and checked the fetal

heartbeat. The routine practice for each new obstetrical patient

of Dr. DeLongÓs was for the patient to meet with Ms. Van de

Gejuchte for their OB intake interview prior to being seen by

Dr. DeLong . She would t ake the new patientÓs blood pressure, get

a urine sample, and draw blood for testing. She would talk to

the new patient about what to expect from each visit. She would

also go over the contents of what she referred to as the OB

packet with the new patien t. The patient would then come back to

the office within a week to meet with Dr. DeLong. Typically

Ms. Van de Gejuchte would spend approximately 45 minutes with a

new patient during the initial visit.

4. Ms. Van de GejuchteÓs routine was to put togeth er an OB

packet the day before a new patientÓs initial visit. Each OB

packet contained an Obstetrical Ultrasound policy, an obstetrical

history, a NICA Peace of Mind brochure and a NICA acknowledgment

form called a Receipt of Notice to Obstetric Patients. She would

also include in the packet pamphlets from various vendors about

things such as breast - feeding and Lamaze classes, which she

color - coded. 1/

5. According to Ms. Van de Gejuchte, she always went over

the NICA brochure in detail. She would open the brochure and

explain the Exclusive Remedy, Criteria Coverage and Compensation

sections, and explain that the NICA Plan was like an insurance

policy outside the doctorÓs malpractice policy and that the

doctor had to pay to belong to the Plan. She would explain to

the patient that Dr. DeLong was a participating physician in the

Plan. She would also show the new patient NICAÓs phone number

and tell them that if they had any questions, they could contact

NICA directly. The patient would then sign the for m and Ms. Van

de Gejuchte would then sign and date the form.

6. Ms. Van de Gejuchte had a detailed conversation with the

new OB patients about the NICA Plan due to her personal

experience of her granddaughter being born with cerebral palsy,

which she shar ed with her patients.

7. No new patients were scheduled for an initial visit

unless Ms. Van de Gejuchte was in the office.

8. While copies of seven other forms signed by

Ms. Cervantes were located from her file, the NICA

acknowledgement form was not l ocated by Dr. DeLongÓs office. I t

was the policy of Dr. DeLong to provide the brochure to an

obstetric patient and to have the patient sign a form

acknowledging that she received the brochure. Ms. Van de

Gejuchte does not know why the NICA acknowledgment form was not

located in Ms. CervantesÓ chart. Ms. Van de Gejuchte has not

worked in Dr. DeLongÓs office since approximately 2010. While

she does not specifically remember discussing the NICA brochure

with Ms. Cervantes, this was her normal routine, and she is

confident that she did this with every new OB patient, including

Ms. Cervantes.

9. Ms. Cervantes recalls going to Dr. DeLongÓs office as a

new patient and filling out paperwork. She recalls receiving

paperwork from Dr. DeLongÓs office which she ke pt in a filing

cabinet. She recalls meeting with Ms. Van de Gejuchte, who she

referred to as Ms. Kay, but does not remember going over any

paperwork with Ms. Kay. While she acknowledges that it is

possible that Ms. Van de Gejuchte could have given her th e NICA

brochure, she does not recall anyone discussing NICA with her at

that time.

10. Part of the routine practice of Dr. DeLongÓs office was

to inform the new patient about NICA. Ms. Van de GejuchteÓs

testimony that her routine practice was to give each new OB

patient a NICA brochure is persuasive. Her personal

circumstances regarding her granddaughter being born with

cerebral palsy strengthens Ms. Van de GejuchteÓs testimony that

this was part of her routine practice , as she was personally

aware of the NICA program . Moreover, no new OB patients were

seen on days that Ms. Van de Gejuchte was not at the office.

Ms. Cervantes recalls seeing ÐMs. KayÑ at her initial visit, but

does not recall Ms. Kay giving her paperwork, nor does she recall

whether s he had any paperwork with her when leaving Dr. DeLongÓs

on that first visit.

11. Ms. Van de GejuchteÓs recollection of her role in a

patient receiving notice of the NICA Plan comports with

Dr. DeLongÓs testimony. Dr. DeLong emphasized to his staff the

i mportance of a patient receiving the NICA brochure, as well as

the other initial information, at their initial visit and the

importance of the patient signing the acknowledgment form.

According to Dr. DeLong, the practice of giving the brochure to a

new pa tient and obtaining the patientÓs signature was part of

Ms. Van de GejuchteÓs normal routine.

12. Dr. DeLong saw Ms. Cervantes for the first time on

September 30, 2008, and reviewed the information which Ms. Van de

Gejuchte recorded in Ms. CervantesÓ ch art. Ms. Cervantes was

approximately 18 week s along in her pregnancy when she first was

seen by Dr. DeLong. His normal routine for a new OB patient

would include asking the patient if they had any questions about

any of the consent forms they had signed. It was not in the

normal course of his practice for him to discuss NICA with

patients unless they indicated that they had questions about it.

According to Dr. DeLong, this is the customary practice of

physicians in his field. Dr. DeLong typically spent

approximately 30 minutes with each new OB patient.

1 3 . The greater weight of the evidence established that

more likely than not, Dr. DeLongÓs office provided Ms. Cervantes

with a copy of the NICA brochure when she made her first visit to

his office in S eptember 2008, when the beginning of her provider -

obstetrical patient relationship began with Dr. DeLong.

1 4 . Ms. Cervantes presented to Lower Keys Medical Center on

five occasions in 2008.

1 5 . Her first visit to Lower Keys was to the Emergency Room

in July 2008 because of a kidney infection. At that time, she

did not know that she was pregnant. Her second visit to the

Emergency Room at Lower Keys was in August 2008 for nausea and

vomiting. She knew she was pregnant at that time but did not

have a doc tor as yet. Ms. Ce r vantes described the July and

August visits to the hospital as not being related to her

pregnancy.

1 6 . Ms. Cervantes presented to Lower Keys Medical Center

laboratory on September 23, 2008 , to have blood drawn for

laboratory work. Ms. Cervantes used the Lower Keys Medical

Center laboratory for her bloodwork because she had used the

facility as an outpatient laboratory in the past: ÐThat was the

only place I knew to go was the hospital.Ñ

1 7 . The medical records indicate that on Se ptember 30,

2008, she went to the outpatient medical area of the hospital to

drop off a laboratory specimen.

1 8 . On October 3, 2008, Ms. Cervantes presented to the

outpatient radiology center for an ultrasound. According to

Ms. Cervantes, she was sent t here for the ultrasound because she

was Ðtoo bigÑ for the machine in Dr. DeLongÓs o ffice. This

comports with testimony from Ms. Van de Gejuchte that because of

Ms. CervantesÓ extra weight, they could not get an accurate

measurement on the baby using the e quipment at the doctorÓs

office and so she was sent to the hospital for the ultrasound so

that the test would be more definitive. Dr. DeLongÓs ultrasound

policy states that he only performs two limited ultrasounds

during a pregnancy, the first of which wo uld be performed at the

first visit. It is concluded that the ultrasound performed at

Lower Keys Medical Center on October 1, 2008, would normally have

been performed at Dr. DeLongÓs office , but was performed at the

hospital as an outpatient radiology pro vider to get a more

definitive test result. Thus, Ms. CervantesÓ professional

relationship as an obstetrical patient with Lower K eys Medical

Center did not begin with her visits to the hospital in July or

August 2008 which were not related to her pregnanc y; in September

when she dropped off a specimen at the laboratory; nor in October

when she had an ultrasound.

19 . Ms. Cervantes contends that she preregistered at Lower

Keys Medical Center in late January or possibly early February,

2009. Ms. Cervan tes was very close to her mother,

Donette Cervantes, and CimayahÓs paternal grandmother,

Eugenia Butler. Both grandmothers encouraged Ms. Cervantes to

preregister at the hospital prior to when it would be time to

have the baby. 2/

2 0 . There is conflicti ng testimony regarding whether or not

Ms. Cervantes preregistered at Lower Keys Medical Center prior to

her admission on February 11, 2009, preceding the birth of

Cimayah. Ms. CervantesÓ deposition testimony regarding

preregistration is not entirely consi stent with her testimony at

hearing; is significantly different from Mr. ThurstonÓs

deposition testimony regarding preregistration; and neitherÓs

recitation of what happened at the alleged preregistration

comports with the routine and practice of the hos pital in

preregistering patients.

2 1 . Both Ms. Cervantes and Mr. Thurston testified that they

went together to Lower Keys Medical Center to preregister.

Ms. Cervantes testified that they went to the hospital in late

January 2009, or possibly early F ebruary 2009, to preregister;

that she drove them there in her motherÓs car; that they entered

the hospital through the Emergency Room to the outpatient area.

She then testified that she signed in on a clipboard, was called

up by a gentleman from the hospi tal, that she told hi m she was

there to preregister and that she handed him her ID . She

testified that the gentleman told her that he needed a form from

Dr. DeLongÓs Office , that the gentleman call ed her doctorÓs

office , and that the form was faxed over. She then testified

that the gentleman gave them a bunch of papers, that Mr. Thurston

did not have interaction with the gentleman, and that they went

to the outpatient waiting area to fill out the paperwork, and

then handed the completed paperwork back to the gentleman.

2 2 . Mr. ThurstonÓs testimony about the coupleÓs trip to the

hospital to preregister differed in many respects from

Ms. CervantesÓ testimony regarding the issue of preregistration.

Mr. Thurston testified that he drove the couple to the hosp ital

in their car (a Ford Taurus) , that he dropped her off at the

hospitalÓs main entrance, and that he did not accompany her

inside.

2 3 . At her deposition, Ms. Cervantes testified that she did

not see anyone type anything into a computer when she wen t to

preregister at the hospital. At hearing, she testified that the

gentleman she spoke to when she went to the hospital to

preregister typed her personal information into the computer when

she first gave him her ID.

2 4 . Ms. CervantesÓ testimony of the events that took place

while at the hospital for preregistration also do not comport

with testimony of Atavia Lopez - Dor, who works for Lower Keys

Medical Center preregistering patients. According to Ms. Lopez -

Dor, the hospitalÓs normal routine and pra ctice when a patient

preregisters is to enter the patientÓs demographic information

into the computer contemporaneously with the patient presenting

them their information (e.g., an ID). Additionally, the

admissions person would have the patient sign sever al forms,

including the Tobacco Free Campus form. While the other forms

would be updated (re - signed) on the date of admission to reflect

a signature on the admission date rather than the preregistration

date, the Tobacco Free Campus Form would always refl ect a

signature and date of preregistration if that patient had indeed

preregistered. The Tobacco Free Campus Form in evidence from

Ms. CervantesÓ chart reflects a date of February 11, 2009, the

date she was admitted for observation and eventual delivery, not

an earlier date.

2 5 . As part of the preregistration process, the admissions

clerk would create a unique billing account number for Ðdelivery

admissionÑ in the Discharge Accounts Receivable System (DAR), and

create a note in the DAR system under that billing account number

to reflect verification of insurance on the date of

preregistration. The unique billing account number would carry

forward to the date of delivery and all notes related to the

delivery, including preregistration notes, would show i n the one

unique account. When a patient preregisters , they are given that

account number. When that patient then comes back in active

labor for admission, everything is under the same account number.

The person preregistering the patient is required to create a

note reflecting the preregistration.

2 6 . A review of Ms. CervantesÓ billing account associated

with the delivery of Cimayah reflect that the first note was

entered on February 11, 2009, verifying Ms. CervantesÓ Medicaid

insurance. The billing re cords do reflect an entry for

February 4, 2009, under an account number (4979251) that is

different from the account number (4980322) for her admission to

the hospital on February 11, 2014, for observation and eventual

delivery. The record does not contai n an explanation of the

February 4, 2009 , entry.

2 7 . Moreover, according to Ms. Lopez - Dor, no paperwork

would be required by the hospital from the physicianÓs office for

a patient to preregister for an anticipated vaginal delivery,

which was the case for Ms. Cervantes until circumstances arose

requiring an unplanned, emergency C - section.

2 8 . Looking at the totality of the evidence, including the

significant inconsistencies between Ms. CervantesÓ testimony

regarding the issue of preregistration and Mr. Thu rstonÓs

testimony regarding the same, the routine and practice of the

hospital in preregistering of patients, and the billing records,

the greater weight of the evidence does not support

Ms. CervantesÓ contention that she preregistered.

29 . On Februar y 11, 2009, Ms. Cervantes was sent from

Dr. DeLongÓs office to Lower Keys Medical Center for observation

because of high blood pressure and concern that she might be

developing pre - eclampsia. Ms. Cervantes arrived at the hospital

at 4:48 p.m. , and was adm itted to labor and delivery around

5:00 p.m.

3 0 . Naomi Thomas is a Registered Nurse who was on duty at

Lower Keys Medical Center when Ms. Cervantes was admitted on

February 11, 2009. Her typical routine when a patient presented

to labor and delivery wa s to give the patient a gown and put the

patient on the fetal monitor. The nurse also educates the

patient to the unit and goes over papers and forms with the

patient. She was the nurse who furnished the NICA brochure to

Ms. Cervantes, along with a Recei pt of Notice to Obstetric

Patient.

3 1 . According to Ms. Thomas, she would explain to the

patient that should the baby have neurological injuries related

to birth, that they have some compensation available. According

to M s . Thomas, it was normal practi ce that when a patient

presents to labor and delivery on more than one occasion, e.g.,

for observation or false labor and then sent home, that she

p resents the NICA brochure and the acknowledgement form each time

the patient presents.

3 2 . Ms. Cervantes si gned the form acknowledging that she

had been provided information prepared by NICA . The form stated:

RECEIPT OF NO TICE TO OBSTETRIC PATIENT

I have been furnished information prepared by

the Florida Birth - Related Neurological Injury

Compensation Associa tion (NICA), pursuant to

Section 766.316, Florida Statutes, by Lower

Keys Medical Center, 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 Neurological Injury

Compensation Association , Post Office Box

14567, Tallahassee, Florida 32317 - 4567 ,

(8 0 0) - 39 8 - 2129 .

I specifically acknowledge that I have

received a copy of the B rochure prepared by

NICA.

M s. Thomas signed the acknowledgment form executed by

Ms. Cervantes , indicating that Ms. Thomas witnessed Ms. Cervantes

signing the acknowledgment form.

3 3 . The parties stipulated that Ms. Cervantes was provided

information by Lower Keys Medical Center in the form of a

brochure prepared by the Florida Birth Related Neurological

Association, and that Ms. Cervantes signed the Receipt of Notice

to Obstetric patient on February 11, 2009.

3 4 . Ms. CervantesÓ professional relationship with Lower

Keys Medical Center relating to her pregnancy began with her

admission to the hospital on February 11, 2009.

3 5 . Because there is no dispute that notice of the NICA

plan was given to Ms. Cervantes on February 11, 200 9 , by Lower

Keys Medical Center, it is not necessary to address the issue of

medical emergency as an excuse for not providing notice.

CONCLUSIONS OF LAW

3 6 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matte r of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. (201 4 ).

3 7 . 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 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

patientÓs rights and limitation s 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 n otice

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.

3 8 . Section 766.309(1)(d) provides:

(1) The a dministrative law judge shall make

the following determination 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 satisfie d. The administrative

law judge has the exclusive jurisdiction to

make these factual determinations.

39 . Petitioner contends that Dr. D eLong did not provide

notice and that the notice that Lower Keys Medical Center g a ve to

Petitioner was not sufficient notice pursuant to section 766.316.

Respondent did not take a position on the notice issue.

Intervenors, Dr. D eLong and Lower Keys Medical Center, contend

that sufficient notice was provided pursuant to section 766.216.

As the proponent s of the proposi tion 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

Neurological Injury Comp. Ass'n. , 880 So. 2d 1253, 1257 (Fla. 1st

DCA 2004).

4 0 . Despite the in ability of Dr. DeLong's office to locate

a copy of a signed NICA acknowledgment form, t he greater weight

of the evidence did establish that more likely than not,

Dr. DeLong provided Ms. Cervantes a copy of the NICA brochure

when she made her initial visit to his office in September 2008,

when the provider - obstetrical patient relationship began between

Ms. Cervantes and Dr. DeLong. The greater weight of the evidence

establishes that Dr. D eLong provided the notice required by

section 766.31 on September 2 3 , 200 8 , and that the notice was

sufficient. Ms. Van de Gejuchte follow ed the normal office

routine and practice when registering obstetrical patients, which

includes giving the NICA 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

prove 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.

4 1 . Section 766.316 requires that "[e]ach hospital with a

participating physician on its staff and each participating

physician" shall provide notice.

4 2 . The parties have stipulated t hat on February 11, 2009,

L ower Keys Medical Center gave Ms. Cervantes a brochure prepared

by NICA and that Ms. Cervantes signed the acknowledgment form.

Her signature on the form raises a rebuttable presumption that

the notice requirements of section 766. 316 have been met.

Petitioner contends that the notice provided by the hospital was

insufficient. Intervenor Lower Keys Medical Center contends that

sufficient notice was given.

4 3 . In Weeks v. Florida Birth - Related Neurological Injury

Compensation Ass ociation , 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 que stion 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 r easonable 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 c entral 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.

4 4 . The facts of this c ase established that the provider -

obstetrical patient relationship commen ced between Ms. Cervante s

and Lower Keys M edical Center when Ms. Cervantes presented to the

labor and d elivery floor on February 11, 2009 , with pre - eclampsia

to be admitted for monito ring and the eventual delivery of her

baby. This was the first time that the hospital was aware that

Ms. Cervantes intended to deliver at Lower Keys Medical Center.

4 5 . The court in Weeks held:

[T]he NICA notice must be given within a

reasonable time af ter 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 "no t

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 pru dent

provider should furnish the notice at the

first opportunity and err on the side of

caution.

Id. at 619 - 620.

4 6 . Prior to February 11, 2009, Ms. Cervantes presented to

Lower Keys M edical Center emergency room on two occasions, once

in July 2008 and once in August 2008. She did not know she was

pregnant in July 2008 and had not yet established as a patient of

Dr. DeLong. Petitioner does not dispute that the July and

August 2008 visits to Lower Keys were not related to her

pregnancy.

4 7 . Ms. Cervant es presented to the outpatient center of the

hospital on three occasions: for blood work on September 23,

2008; to drop off a laboratory specimen on September 30, 2008,

and for an outpatient ultrasound on October 2, 2008. At these

visits, Petitioner did not present to the l abor and d elivery

floor and there is no evidence that Lower Keys was made aware

that she intended to deliver her baby there. Accordingly, the

hospital was not obligated to provide the NICA notice to her at

those times.

4 8 . The great er weight of the evidence does not support a

finding that Ms. Cervantes actually preregistered for the birth

of her baby in January or early February 2009.

49 . The greater weight of the evidence established that

Lower Keys Medical Center gave proper not ice at the time the

provider - obstetrical patient relationship was formed on

February 11, 2009. Thus, Lower Keys Medical Center satisfied the

notice requirement of section 766.316.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. Lower Keys Medical Center provide d notice for the

hospital as required by section 766.316.

2. Dr. D eLong provided notice as required by 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. Cervantes ; the reasonable expenses incurred in

connection with the filing of the claim, including reasonable

attorney's fees and cost s; 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 consisten t 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 19th day of Nove mber , 2014 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

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 19th day of November , 2014 .

ENDNOTE S

1/ Petitioner asserts that Ms. Van de GejuchteÓs testimony was

about her personal routine, not of fice routine, and point to a

specific comment she made in her deposition at page 25. However,

that comment was specifically referencing her practice of making

Ðlittle stacksÑ of materials that were not hospital generated and

color coding vendorsÓ brochure s according to subject matter

(e.g., breastfeeding or Lamaze classes) to include in the OB

packet. The totality of her testimony was about her routine as

it related to established office practices.

2/ The grandmothersÓ testimony regarding Ms. Cervantes Ó alleged

preregistration has limited value. Their testimony that

Ms. Cervantes and the babyÓs father, Mr. Thurston, told them that

they had preregistered is hearsay and is not sufficient in itself

to support a finding of fact as contemplated by section

1 20.57(1)(c), Florida Statutes, as to whether or not

Ms. Cervantes did indeed preregister.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1049 3447)

Nathan E. Eden, Esquire

Law Office of Nathan E. Eden P . A .

302 Southard Street , Suite 205

Key West, Florida 33040

(eServed)

(Certified Mail No. 7014 2120 0 003 1049 3454)

Robert C. Tilghman, Esquire

Robert C. Tilghman, P.A.

One Biscayne Tower, Suite 2670

2 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

(Certified Mail No. 7014 2120 0003 1049 3461)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail No. 7014 2120 0003 1049 3478)

Michael A. Petruccelli, Esquire

Fann and Petruccelli, P.A.

5100 North Federal Highway , Suite 300B

Fort Lauderdale, Florida 33308

(eServed)

( Certified Mail No. 7014 2120 0003 1049 3485)

Denise L. Dawson, Esquire

Hall Booth Smith, PC

Suite H, 2nd Floor

9250 Alternate A1A

North Palm Beach, Florida 33403

(eServed)

(Certified Mail No. 7014 2120 0003 1049 3492)

Amie Rice, Investigation Manager

C onsumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1049 3508)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1049 3515)

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 sectio n

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 a gency c lerk of the Division of Administrative Hea rings

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 C omp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).