13-003870N Ashley Lamendola, Individually And As Parent And Legal Guardian Of Her Minor Child, Hunter Lamendola vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, August 13, 2014.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHLEY LAMENDOLA, individually

and as parent and legal guardian

of her minor child, HUNTER

LAMENDOLA,

Petitioner,

vs. Case No. 13 - 3870N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

ST. PETERSBURG GENERAL HOSPITAL,

GUILLERMO CALDERON, M.D.,

CHRISTINA SHAMAS, M.D., AND GULF

COAST INSTITUTE OF OB/GYN, LLC,

Intervenors.

_______________________________/

FINAL ORDER ON NOTICE

Pursuant t o notice, a final hearing on the issue of notice

was held in this case on June 4, 2014, in St. Petersburg,

Florida, before Susan Belyeu Kirkland, an Administrative Law

Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Raymond W. Valori, Esquire

Daniel Harwin, Esquire

Raymond W. Valori, P.A.

110 Southeast 6 th Street , Suite 2300

Fort Lauderdale, Florida 33301

For Respondent: Rob ert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

For Intervenor St. Petersburg General Hospital:

Philip Jay Spe ngler, II, Esquire

Ogden and Sullivan, P.A.

113 South Armenia Avenue

Tampa, Florida 33609

Richard Schwamm, Esquire

Haliczer, Pettis and Schwamm

225 East Robinson Street , Suite 475

Orlando, Florida 32801

Robert E. Biasotti, Esquire

Biasotti and Associates

669 First Avenue North

St. Petersburg, Florida 33701

For Intervenor Guillermo Calderon, M.D.:

Hughes Hamilton Rice, Esquire

Erin B. Reynolds, Esquire

Bush, Graziano, Rice and Platter, P .A.

Post Office Box 3423

Tampa, Florida 33601

For Intervenors Christina Shamas, M.D., and Gulf Coast

Institute of OB/GYN, LL C :

Kirsten K. Ullman, Esquire

Kelly S. Weaver, Esquire

Lewis, Brisbois, Bisgaard and Smith, LLP

3812 Coconut Palm Drive

Tampa, Florida 33511

STATEMENT OF THE ISSUE

The issue in this case is whethe r notice was accorded the

patient, as contemplated by section 766.316, Florida Statutes

(2012) .

PRELIMINARY STATEMENT

On October 2, 2013, Petitioner, Ashley Lamendola,

individually and as parent and legal guardian of Hunter Lamendola

(Hunter), a minor, f iled a Petition for Benefits Pursuant to

Section 766.301 et seq., of the Florida Statutes (Petition) with

the Division of Administrative Hearings (DOAH) for a

determination of compensability under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan). The Petition named

Christina Shamas, M.D., as the physician who provided obstetric

services at the birth of Hunter on June 27, 2012, at St.

Petersburg General Hospital in St. Petersburg, Florida. The

Petition also named Guillermo Calderon, M .D., as

Ashley LamendolaÓs treating obstetrician.

DOAH served NICA with a copy of the Petition on October 8,

2013. DOAH served St. Petersburg General Hospital with a copy of

the Petition on October 11, 2013. On October 15, 2013, DOAH

received a return re ceipt from the United States Postal Service

showing that Dr. Shamas had been served with a copy of the

Petition. On October 11, 2013, DOAH received a return receipt

from the United States Postal Service showing that Dr. Calderon

had been served with a cop y of the Petition.

On October 21, 2013, St. Petersburg General Hospital filed a

Petition to Intervene, which was granted by Order dated

November 7, 2013. On October 23, 2013, Dr. Calderon filed a

Petition to Intervene, which was granted by Order dated

No vember 7, 2013. On November 1, 2013, Dr. Shamas and Gulf Coast

Institute of OB/GYN, LLC, filed a Petition to Intervene, which

was granted by Order dated November 20, 2013.

On April 24, 2014, NICA filed RespondentÓs Motion for

Summary Final Order on the Is sue of Birth - Related Neurological

Injury, contending that Hunter Lamendola suffered a birth - related

neurological injury. On May 29, 2014, the parties filed a Pre -

Hearing Stipulation in which the parties agreed to the following:

Hunter Lamendola suffered a birth - related

neurological injury and 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.

On May 30, 2014, a Partial Summary Final Ord er was entered

finding that Hunter Lamendola suffered a birth - related

neurological injury. Jurisdiction was retain ed to determine the

issue of an award and whether the notice requirements of section

766.316 were satisfied.

The Pre - Hearing Stipulation file d by the Parties stipulated

to certain facts contained in Paragraph (e) of the Pre - Hearing

Stipulation. Those facts have been incorporated into this Final

Order on Notice.

At the final hearing, PetitionerÓs Exhibits P1, P3, P4, P5,

P6, P7, and P15 were ad mitted in evidence. Petitioner testified

in her own behalf and called the following witnesses:

Myra Deering, Violet Lamendola, and Tara Yan. At the final

hearing, Respondent did not call any witnesses and did not have

any exhibits which were admitted in evidence. Intervenor, St.

Petersburg General HospitalÓs, Exhibits H1 and H2 were admitted

in evidence. St. Petersburg General Hospital did not call any

witnesses. Intervenors, Christina Shamas, M.D., and Gulf Coast

Institute of OB/GYN , presented Exhibi ts G1, G2, G3, G4, G5, G10,

G11, and G12, which were admitted in evidence. Elba Acosta

testified on behalf of Dr. Shamas and Gulf Coast Institute of

OB/GYN. Intervernor, Guillermo Calderon, M.D., did not call any

witnesses or present any exhibits.

The tw o - volume Transcript of the final hearing was filed on

June 17, 2014. The parties timely filed their proposed final

orders, which have been considered in the drafting of this

Summary Final Order on Notice.

FINDINGS OF FACT

1. Ashley Lamendola first prese nted to Gulf Coast OB/GYN on

the morning of December 16, 2011, for a prenatal visit. This

visit constituted the beginning of her professional relationship

with the physicians who were part of the Gulf Coast OB/GYN group,

which included Dr. Calderon and Dr . Shamas. 1/ Violet Lamendola,

Ms. LamendolaÓs mother, accompanied Ms. Lamendola to that visit.

When she arrived at Gulf Coast OB/GYN, Ms. Lamendola was given

information and forms to fill out by the receptionist. According

to both Ms. Lamendola and her mother, the materials included a

NICA brochure in Spanish and an acknowledgment of receipt of the

NICA form.

2. While reviewing the materials, Ms. Lamendola, who does

not speak Spanish, noted that the NICA brochure given to her was

in Spanish. She asked her mother to take the brochure back to

the receptionist. When Ms. LamendolaÓs mother asked the

receptionist about the Spanish brochure, the receptionist told

her that the office had run out of NICA brochures printed in

English, but that she would obtain one from another office and

give it to Ms. Lamendola at the end of her appointment.

Ms. Lamendola was instructed to sign and did sign the

acknowledgment form so that she could see the physician. The

acknowledgment form advised that all physicians in the Gulf C oast

OB/GYN, P.A. , were participating physicians in the NICA program.

3. Ms. Lamendola received a black - and - white facsimile copy

of the NICA brochure on her way out of the office along with

other materials relating to prenatal and infant care. The

brochure, received by Ms. Lamendola from Gulf Coast OB/GYN, bears

a facsimile transmission header dated December 16, 2011, at

9:47 a.m.

4. The brochure prepared by NICA is a color brochure which

contains the following text in white letters on a light - to - medium

green background on the back of the brochure:

Section 766.301 - 766.316, Florida Statutes,

(ÐNICA LawÑ) provides rights and remedies for

certain birth - related neurological injuries

and is an exclusive remedy. This brochure is

prepared in accordance with the mandate of

Section 766.316, Florida Statutes. A copy of

the complete statute is available free of

charge to completely inform patients of their

rights and limitations under the application

provision of Florida law. Since 1989,

numerous court cas es have interpreted the

NICA law, clarifying legislative intent.

The above - quoted language is absent from the facsimile copy of

the brochure that Ms. Lamendola received from Gulf Coast OB/GYN.

Apparently because the letters in the original brochure were

white, the letters did not transmit. It is noted that on the

front of the brochure, white lettering that appears on the green

background of the color brochure did not transmit on the copy

that Ms. Lamendola received.

5. The majority of the information co ntained in

Ms. LamendolaÓs facsimile copy of the brochure is contained in

the color copy of the brochure. The facsimile copy informed

Ms. Lamendola that the statutes provide an exclusive remedy and a

copy of the statutes may be obtained from NICA. The fa csimile

outlined the rights and limitations provided in the statutes.

The only things that are not contained in the original brochure

are that a copy of the statutes is available free of charge, the

preparation of the brochure was mandated by section 766. 316, and

court cases have interpreted the statutes.

6. St. Petersburg General Hospital offers a tour of its

obstetrical department to expectant mothers and their families.

Ms. LamendolaÓs mother called St. Petersburg General Hospital to

register for a tour. The hospital employee who was scheduling

the tour asked to speak to Ms. Lamendola to obtain pertinent

biographical information. Ms. Lamendola provided the information

to the hospital employee.

7. The tour is an informational tour and attendance at the

tour does not constitute pre - registration at St. Petersburg

General Hospital for the delivery of a baby.

8. Ms. Lamendola and her mother, along with 12 other

couples, attended the tour on March 22, 2012. During the tour,

Ms. Lamendola received a tou r packet, which contained a document

titled Preadmission and Financial Information. This document

instructed Ms. Lamendola to fill out the pre - admission form and

return it to the hospital. Ms. Lamendola filled out the pre -

admission form, but did not retu rn it to St. Petersburg General

Hospital. Ms. Lamendola did not pre - register for admission to

the hospital.

9. On April 3, 2012, Ms. Lamendola presented to St.

Petersburg General Hospital with complaints of vaginal bleeding.

M s. Lamendola was told by a h ospital employee that she was

already in the system and that additional information would not

be necessary. Ms. Lamendola signed a ÐConsent to TreatÑ form and

was treated in the labor and delivery unit of the hospital. A

short time later, she was given i nformational materials relating

to prenatal and infant care and released. She was not given a

NICA brochure during the visit on April 3, 2012. It was the

hospitalÓs policy to give a NICA brochure to a patient only when

the patient was being admitted as a n inpatient for delivery of

her baby. Ms. LamendolaÓs professional relationship with St.

Petersburg General Hospital relating to her pregnancy began with

her visit on April 3, 2012.

10. At 20:19 on June 26, 2012, Ms. Lamendola presented to

St. Petersburg General Hospital. She had been experiencing

contractions for six hours prior to her arrival at the hospital.

She had been placed on bed rest for gestational hypertension five

days prior to coming to the hospital. When she arrived at the

hospital, she h ad hypertension.

11. Normally when a patient is 37 to 39 weeks gestation,

her physician will bring the prenatal records to the hospital or

the physicianÓs office will send the records to the hospital by

facsimile transmission. When Ms. Lamendola arrived at St.

Petersburg General Hospital, her prenatal records from her

physiciansÓ office were not on file. Megan Muse, R.N., was on

duty when Ms. Lamendola presented at St. Petersburg General

Hospital. Because Ms. LamendolaÓs records were not on file,

Ms. Mu se requested that Bayfront Hospital send Ms. LamendolaÓs

records to St. Petersburg General Hospital. The evidence did not

establish how Ms. Muse knew that the prenatal records were at

Bayfront Hospital. Ms. LamendolaÓs prenatal records, consisting

of 11 pages, were sent by facsimile transmission to St.

Petersburg General Hospital beginning at 21:35 on June 26, 2012.

Ms. Muse recorded in her notes that Ms. LamendolaÓs prenatal

records were received from Bayfront Hospital at 21:45 on June 26,

2012.

12. A lthough Ms. LamendolaÓs prenatal records may have been

sent to Bayfront Hospital, it was never Ms. LamendolaÓs intention

to deliver her baby at Bayfront Hospital. She took the

informational tour offered by St. Petersburg General Hospital and

went to St. P etersburg General Hospital in April 2012 when she

had a problem related to her pregnancy.

13. At 20:33, Dr. Javate admitted Ms. Lamendola to St.

Petersburg General Hospital for the delivery of her infant.

Ms. Lamendola was examined by Emanuel Javate, M. D. , at

approximately 21:35. At 22:02, Ms. Lamendola signed the

hospitalÓs Condition of Admission form. At 22:10 the hospital

gave Ms. Lamendola the brochure prepared by NICA, and

Ms. Lamendola signed the acknowledgment form, acknowledging that

she had re ceived the brochure.

14. Ms. Lamendola gave birth to Hunter Lamendola (Hunter)

on June 27, 2012, at St. Petersburg General Hospital, which is a

licensed Florida Hospital. At birth, Hunter weighed in excess of

2,500 grams and was a single gestation.

15. Ashley Lamendola received obstetrical care from

Guillermo Calderon, M.D. Dr. Calderon was a Ðparticipating

physicianÑ as defined in section 766.302(7).

16. Christina Shamas, M.D., provided obstetrical services

in the course of labor, delivery, and resusc itation in the

immediate post - delivery period. Dr. Shamas was a Ðparticipating

physicianÑ as defined in section 766.302(7).

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of th is

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

18. The only issue 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

pat ients 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 the

pla n. 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

requireme nts 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.

19. Section 766.309(1)(d) provides:

(1) The administrative 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 satisfied. The administ rative

law judge has the exclusive jurisdiction to

make these factual determinations.

20. Ms. Lamendola signed an acknowledgment form that her

physicians had provided her with a brochure prepared by NICA, and

she signed an acknowledgment form that she ha d received a NICA

brochure form from St. Petersburg General Hospital. Her

signature on these forms raises a rebuttable presumption that the

notice requirements of section 766.316 have been met. Petitioner

contends that the notice provided by the physicia ns did not meet

the requirements of section 766.316 because part of the language

of the copy that she received was absent. Petitioner contends

that the notice provided by St. Petersburg General Hospital did

not meet the notice requirements of section 766. 316 because the

notice should have been provided either in March 2012 when

Ms. Lamendola toured the labor and delivery section of St.

Petersburg General Hospital or on April 3, 2012, when

Ms. Lamendola presented to St. Petersburg General Hospital for

medic al services related to her pregnancy.

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

Compensation Association , 977 So. 2d 616, 618 - 620 (Fla. 5th DCA

2008), the court stated:

[T]he formation of the provider - obstetrical

patient relationship is wh at 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 Wa ter 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

ano ther provider prior to delivery, which is

the primary purpose of the notice

requirement.

* * *

[T]he NICA notice must be given within a

reasonable time after the provider -

obstetrical patient relationship begins,

unless the occasion of the commenceme nt 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 provide r 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.

22. The physician - patient relationship between

Ms. Lamendola and Dr. Shamas and Dr. Calderon began when

Ms. Lamendola presented at Gulf Coast OB/GYN on December 16,

2011. The notice provided by Gulf Coast OB/GYN covered all

physicians employed by Gulf Coast OB/GYN, including Dr. Shamas

and Dr. Calderon.

23. Gulf Coast OB/GYN provided a copy of a NICA brochure,

which had been sent by facsimile transmission. Part of the text

of the brochure did not transmit, probably because that text on

the co lor brochure was printed in white. The copy of the

brochure that Ms. Lamendola received was sufficient to satisfy

the provisions of section 766.316 in that it included a clear and

concise explanation of Ms. LamendolaÓs rights and limitations

under the NIC A plan. Most of the missing text was a reiteration

of what was already contained in the copy of the brochure that

Ms. Lamendola received. Thus, Dr. Shamas and Dr. Calderon

provided sufficient notice pursuant to section 766.316.

24. Ms. LamendolaÓs tour of St. Petersburg General Hospital

did not form a professional relationship between her and St.

Petersburg General Hospital. It was an informational tour and

did not constitute pre - registration at the hospital for delivery

of her baby. She was given a fo rm to use to pre - register, but

she did not avail herself of the opportunity to pre - register.

Even if Ms. Lamendola had pre - registered, the policy of St.

Petersburg General Hospital was to provide the NICA notice only

when the patient arrives at the hospit al and is admitted as an

inpatient for delivery of her baby.

2 5 . The hospitalÓs professional relationship with

Ms. Lamendola, relating to her pregnancy, began when

Ms. Lamendola presented to St. Petersburg General Hospital on

April 3, 2012, with complaint s relating to her pregnancy. She

was treated at the hospital for those complaints. The hospital

did not provide notice at that time as required by section

766.316.

2 6 . At 8:19 p.m. , on June 26, 2012, when Ms. Lamendola

arrived at St. Petersburg General Hospital, she was having

contractions and had hypertension. She had been placed on bed

rest for the hypertension five days prior to her coming to the

hospital. The hospital did not provide her with NICA notice

until 10:10 p.m. To contend that under thes e circumstances that

the notice provided by the hospital was reasonable when it had an

opportunity to do so almost three months prior to June 26, 2012,

misses the mark. A woman who has been on bed rest for

hypertension, has hypertension on arrival at the hospital, is

experiencing contractions, and is given NICA notice at ten

oÓclock at night does not have sufficient time to go and find a

non - participating physician to deliver her baby. The notice

provided by St. Petersburg General Hospital did not meet th e

requirements of section 766.316.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that St. Peter s burg General Hospital did not comply

with the notice provisions of section 766.316 ; that Dr. Calderon

did comply wit h the notice provisions of section 766.316 ; and

that Dr. Shamas did comply with the notice provisions of 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 Adminis trative Law Judge, the amount and manner of payment of

an award to Ms. Lamendola ; 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 incu rred. 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 DOAHÓs file will be closed.

DONE AND ORDERED this 1 3 th day of August , 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 Cl erk of the

Division of Administrative Hearings

this 1 3 th day of August , 2014 .

ENDNOTE

1/ Ms. Lamendola visited Gulf Coast OB/GYN on at least fourteen

other occasions after her initial visit on December 16, 2011.

During these visits she was treated by different physicians in

the group, including Dr. Shamas and Dr. Calderon.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tal lahassee, Florida 32308

(Certified Mail No. 7014 0150 0002 0386 0544)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

( Certified Mail No. 7014 0150 0002 0386 0605)

Raymond W. Valori, Esquire

Daniel H arwin, Esquire

Raymond W. Valori, P.A.

110 Southeast 6th Street , Suite 2300

Fort Lauderdale, Florida 33301

(Certified Mail No. 7014 0150 0002 0386 0612)

Richard B. Schwamm, Esquire

Haliczer , Pettis and Schwamm

225 East Robinson Street , Suite 475

Orlando, Florida 32801

(Certified Mail No. 7014 0150 0002 0386 0575)

Robert E. Biasotti, Esquire

Biasotti and Associates

669 First Avenue North

St. Petersburg, Florida 33701

(Certified Mail No. 7014 0150 0002 0386 0629)

Philip Jay Spengler, II, Esquire

Ogden a nd Sullivan, P.A.

113 South Armenia Avenue

Tampa, Florida 33609

( Certified Mail No. 7014 0150 0002 0386 0568 )

Hughes Hamilton Rice, Esquire

Eric B. Reynolds, Esquire

Bush, Graziano, Rice and Platter, P.A.

Post Office Box 3423

Tampa, Florida 33601

( Certi fied Mail No. 7014 0150 0002 0386 0582 )

Kristen K. Ullman, Esquire

Kelly S. Weaver, Esquire

Lewis, Brisbois, Bisgaard and Smith, LLP

3812 Coconut Palm Drive

Tampa, Florida 33511

( Certified Mail No. 7014 0150 0002 0386 0599)

Amie Rice, Investigation Man ager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 0150 0002 0386 0636)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 0150 0002 0386 0643)

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 a gency c lerk of the Division of Administrati ve 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

In jury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).