14-003730N Jennifer De La Rosa, Individually And As Personal Representative Of The Estate Of Sophia Grant, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Wednesday, November 18, 2015.

Summary: Hospital and physician not obligated to give notice because mother was in an emergency condition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER DE LA ROSA,

Individually and as Personal

Representative of the Estate of

SOPHIA GRANT, deceased,

Petitioner,

vs. Case No. 14 - 3730N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/ k/a NICA,

Respondent,

and

ST. JOSEPH'S HOSPITAL, INC., AND

AREEJ SALEM, M.D.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER ON NOTIC E

This cause came on for consideration upon Intervenor Areej

Salem, M.D.Ós , Renewed Motion for Summary Final Order and

Intervenor, St. JosephÓs Hospital Inc. Ós Motion for Summary Final

Order filed on July 20 and 24, 2015, respectively.

STATEMENT OF THE CASE

On A ugust 11 , 2014, Petitioner, Jennifer de la Rosa ,

indiv idually and as Personal Representative of the Estate of

Sophia Grant (Sophia), deceased, filed a Petition Under Protest

Pursuant to Florida Statute Section 766.301 et seq. (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

Areej Salem , M.D., as the physician who provided obstetric

services at the birth of Sophia on Ma y 20 , 2012, at St. Joseph's

Hospital in Lutz , Florida.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association ( NICA ) and St. Joseph's Hospital with a

copy of the Petition on August 18 , 2014. DOAH served Areej Jamil

Salem, M.D., with a copy of the Petition on August 12 and 18,

2014.

On September 1 1, 2014, St. JosephÓs Hospital filed a

Petition for Leave to Intervene, which was granted by Order dated

September 15, 2014. On Septem ber 16 , 2014, Dr. Areej Salem filed

a Mo tion to Intervene, which was granted by Order dated

Septem ber 26 , 2014.

On June 1 , 201 5 , NICA filed a n Unopposed Motion for Partial

Summary Final Order on the issue of birth - related neurological

injury. On June 5 , 201 5 , a Partial Summary Final Order on

c ompensability was entered, finding that Sophia su stained a

birth - related neurological injury, which is compensable under the

P lan. Jurisdiction was retained on the issues of notice and

award.

A Notice of Hearing by Video Teleconference was issued on

June 15, 2015, scheduling the final hearing for Augus t 25, 2015.

On July 20, 2015, Intervenor, Dr. Salem , filed a Renewed Motion

for Summary Final Order. On July 24, 2015, Intervenor,

St. JosephÓs Hospital, Inc., filed a Motion for Summary Final

Order. 1/ On August 10, 2015, Petitioner filed a Combined

Obj ection and Response to the IntervenorsÓ Motions for Summary

Final Order. Meanwhile, the parties continued to file pleadings

in preparation for the upcoming final hearing, including a Joint

Pre - hearing Stipulation filed on August 12, 2015.

On August 11, 20 15, Dr. Salem filed a Motion to Strike

Affidavit of Berto Lopez, M.D. On August 11 and 12, 2015,

respectively, St. JosephÓs Hospital and NICA filed a Notice of

Joinder to Dr. SalemÓs Motion to Strike. No response was filed

to the Motion. The Motion to S trike was granted by Order dated

August 20, 2015.

The final hearing was convened as scheduled on August 25,

2015. However, at the commencement of the hearing, the parties

concurred that it was the partiesÓ preference that the Motions

for Summary Final Or der be considered and ruled upon before any

final hearing t ook place. Petitioner made an ore tenus Motion to

supplement her Combined Objection and Response to Motion for

Summary Final Order, which was denied. The hearing was adjourned

for consideration o f the IntervenorsÓ Motion s for Summary Final

Order. On August 28, 2015, Petitioner filed a Motion for

Reconsideration of PetitionerÓs Ore Tenus Motion to Supplement

Her Combined Objection to Motions for Summary Final Order. On

September 1, 2015, Interven or S t. JosephÓs Hospital filed a

Response to PetitionerÓs Motion for R econsideration and

Intervenor Dr. Salem filed a Notice of Joinder to St. JosephÓs

Response. Upon consideration, PetitionerÓs Motion for

Reconsideration is denied.

FINDINGS OF FACT

1. S ophia Grant was born alive on May 20, 2012 , at

St. JosephÓs Hospital (St. JosephÓs) located in Lutz, Florida.

Sophia was a single gestation weighing 3,020 grams at birth. At

all times material to this proceeding, St. Joseph Ós was, and is,

a NICA particip ant.

2. Sophia w as delivered by Areej Salem, M.D. At all times

material to this proceeding, Dr. Salem was, and is, a NICA

participating physician.

3. SophiaÓs mother, Jennifer de la Rosa, presented to Labor

of Love Birth Center (Labor of Love) the eveni ng of May 19, 2012,

for the delivery of her daughter. According to the records of

Labor of Love, she had pushed through some of the night and much

of the morning. Berenice Rowell, a certified midwife and owner

of Labor of Love, was called in for assessme nt and support the

following afternoon. Ms. Rowell arrived at Labor of Love around

1:00 p.m., and performed a vaginal examination of Ms. d e la Rosa

shortly after her arrival. During that examination, Ms. Rowell

confirmed that PetitionerÓs water had broke n and her membranes

had ruptured. Labor of Love decided to transfer Petitioner to a

hospital. Accordingly, Ms. Rowell offered to have an ambulance

perform the transfer, but that offer was refused , and Petitioner

rode in a car with her family to St. Josep hÓs. Ms. Rowell

followed Petitioner to St. JosephÓs and accompanied her to the

labor and delivery department.

4. Petitioner presented to the labor and delivery

department of St. JosephÓs at approximately 4:00 p.m., in the

afternoon on May 20, 2012.

5. Teresa Hampton is a licensed obstetrical r egistered

n urse , who is employed by St. JosephÓs. Nurse Hampton was

working at St. JosephÓs labor and delivery department at the time

Ms. d e la Rosa transferred from Labor of Love on the afternoon of

May 20, 2012. Upon admission, Ms. Hampton provided Ms. de la

Rosa with the informational brochure furnished by NICA and

explained the rights and limitations under the NICA compensation

plan to her.

6. Ms. Hampton also provided a form furnished by

St. JosephÓs entitled ÐNotice to Obstetric Patient - Receipt of

NICA InformationÑ (the acknowledgment form), which reads as

follows:

RECEIPT OF NICA INFORMATION

I have be e n furnished the brochure furnished

by the Florida Birth - Related Neurological

Compensation Associa tion (NICA), pursuant to

Section 766.316, Florida Statutes, by

St. JosephÓs Hospitals, wherein certain

limited compensation is available in the

event certain types of qualifying

neurological injuries may occur during labor,

delivery or resuscitation in a h ospital. 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, (800) 398 - 2129. I further

acknowledge that I have received a copy of

the brochure prepared by NICA.

M s. Hampton printed Ms. de la RosaÓs name on the line immediately

above the line for ÐPatient/GuardianÓs signatureÑ and observed

Ms. de la Rosa sign the form. The date appearing below her

signature is May 20, 2012. In her affidavit, Ms. Hampton attests

that Petitioner appeared alert and capable of receiving her

explanation of the P lan and that there was no indication that

Petitioner did not understand this explanation.

7. In her Responses to St. JosephÓs First Req uest for

Admissions, Petitioner admits to signing the acknowledgment , but

despite her signature on the acknowledgement form, denies

receiving the NICA brochure.

8. Helen Ross, M.D., 2/ is an obstetrician/gynecologist

employed by OB Hospitalist Group. Sh e was providing obstetrical

services at St. JosephÓs at the time Petitioner arrived at labor

and delivery. That is, OB Hospitalist Group was providing

obstetric care to patients who did not have an obstetrician or

who presented to the hospital under emerg ency conditions.

Dr. Ross obtained PetitionerÓs medical history from Labor of

LoveÓs records that accompanied the patient , from the midwife,

Ms. Rowell, and from the patientÓs family. The prenatal records

were not in St. JosephÓs system. After obtaining a history and

after performing a medical exam of Petitioner, Dr. Ross

determined that Petitioner had prolonged ruptured membranes, was

in danger of infection, and that she was experiencing persistent

labor contractions. It was clear to Dr. Ross that Peti tionerÓs

membranes had ruptured prior to her arrival at St. JosephÓs and

that she had been in persistent contractions for a prolonged

period of time.

9. Dr. RossÓs 24 - hour shift was ending , and she had a face -

to - face turnover with Dr. Salem sometime betwe en 7:00 p.m., and

8:00 p.m. , on the evening of May 20, 2012. Dr. Salem was also

providing obstetrical services through OB Hospitalist Group and

took over obstetrical duties from Dr. Ross that evening.

10. Dr. Salem first met with Ms. de la Rosa at 7:49 p.m. ,

on May 20, 2012. When she first saw Ms. de la Rosa and evaluated

her fetal monitoring strips, she determined that the baby needed

to be emergently delivered , and she strongly recommended an

immediate Caesarean section to Petitioner. Dr. Salem furth er

determined that PetitionerÓs membranes were ruptured and that

there was evidence of persistent uterine contractions.

11. Although Petitioner initially did not consent to have a

Caesarean section, she ultimately did. Dr. Salem performed a

Caesarean se ction procedure on Petitioner, and delivered Sophia.

1 2. As has been determined in the Partial Summary Final

Order issued on June 5, 2015, Sophia sustained a birth - related

neurological injury.

13. Dr. Salem did not provide NICA notice to Ms. de la Rosa .

CONCLUSIONS OF LAW

14 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 766.301 - 766.316, Fla. Stat. (201 5 ).

15 . The only remaining issue to be determined is whether

notice was p rovided 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 b y the association and shall

include a clear and concise explanation of a

patientÓs rights and limitations under the

plan. The hospital or the participating

physician may elect to have the patient sign

a form acknowledging receipt of the notice

form. Sign ature of the patient acknowledging

receipt of the notice form raises a

rebuttable presumption that the notice

requirements of this section have been met.

Notice need not be given to a patient when

the patient has an emergency medical

condition as defined in s. 395.002(8)(b) or

when notice is not practicable.

(emphasis added) .

16 . Section 395.002(8)(b) , Florida Statutes, defines

"emergency medical condition" as follows:

(8) "Emergency medical condition" means:

* * *

(b) With respect to a pregn ant 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.

17 . 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

o ther party, the factual determinations

regarding the notice requirements in

s. 766.316 are satisfied. The administrative

law judge has the exclusive jurisdiction to

make these factual determinations.

1 8 . Ms. d e la Rosa signed an acknowledgement form st ating

that she received a NICA brochure from St. JosephÓs. Her

signature on this form raises a rebuttable presumption that the

notice requirements of section 766.316 have been met by the

hospital. In her response to a Request for Admissions,

Petitioner d enies that she received the NICA brochure from

St. JosephÓs pursuant to section 766.316. Intervenor,

St. JosephÓs, contend s that notice was pr ovided pursuant to

section 766.3 16 , and that, in any event, notice was not required

to be given due to Petitioner Ós emergency medical condition upon

arrival .

1 9 . Intervenor Dr. Salem, contends that she was not

required to give notice because Petitioner had an emergency

medical condition as defined in section 395.002(8)(b), when she

first encountered the patient. As the proponent s 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 Neurological Injury

Comp. Ass'n. , 880 So. 2d 1253, 1257 (Fla. 1st DCA 2004).

20 . Intervenors have met this burden. The evidence

establishes that when Petitioner presented to St. JosephÓs and

when Dr. Salem first encountered Petitioner the evening of

May 20, 2012, PetitionerÓs membranes had broken and she was

experien cing persistent uterine contractions. The testimony of

Ms. Rowell, the certified midwife from Labor of Love; Dr. Ross,

who initially examined Petitioner upon admission; and Dr. Salem,

who took over PetitionerÓs obstetrical care when Dr. RossÓs shift

was o ver, are consistent in this regard.

2 1 . Thus, it is concluded that when Petitioner presented to

St. JosephÓs labor and delivery department and when she first

encountered Dr. Salem, she had an emergency medical condition as

defined in section 395.002(8)( b). As such, neither St. JosephÓs

nor Dr. Salem was required to provide NICA notice pursuant to

section 766.316.

2 2 . In Weeks v. Florida Birth - Related Neurological Injury

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

2008), the court stated:

[T]he NICA notice must be given within a

reasonable time after the provider -

obstetrical relationship begins, unless the

occasion of the commencement of the

relationship involves a patient who presents

in an "emergency medical condition," as

defined by the statute, or unless the

provision of notice is otherwise "not

practicable." When the patient first becomes

an "obstetrical patient" of the provider and

what constitutes a "reasonable time" are

issues of fact. As a result, conclusions

might vary, e ven where similar situations are

presented. For this reason, a prudent

provider should furnish the notice at the

first opportunity and err on the side of

caution.

Id. at 619 - 620.

2 3 . The provider - patient relationship between M s . d e la

Rosa and St. Jo sephÓs began when she presented to the labor and

delivery department on May 20, 2012. The physician - patient

relationship between Ms. de la Rosa and Dr. Salem also began on

May 20, 2012. At the time these provider - patient relationships

commenced, Ms. de l a Rosa was in an emergency medical condition ,

as defined in section 395.002(8)(b). Therefore, the providers

were excused from giving such notice.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED:

1. St. JosephÓs Hospital provide d NICA notice in compliance

with section 766.316 , although they were not obligated to do so

because Petitioner presented to the hospital in an emergency

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

2. Dr. Areej Salem was not req uired to give NICA notice to

Petitioner because Petitioner was in an emergency medical

condition , as defined in section 395.002(8)(b), when Dr. Salem

first encountered Petitioner.

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 manne r of payment of

an award to Petitioner ; the reasonable expenses incurred in

connection with the filing of the claim, including reasonable

attorney's fees and c osts; 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 consis tent 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 the file of DOAH will

be closed.

DONE AND ORDERED this 30th day of September , 2015 , 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 30th day of September , 2015 .

ENDNOTES

1/ Dr. Salem initially filed a Motion for Summary Final Order on

May 26, 2015, and St. J osephÓs Hospital initially filed a Motion

for Partial Final Summary Order on May 28, 2015. These Motions

were denied without prejudice by Order dated June 8, 2015.

2/ Now known as Helen Ross Shields, M.D.

COPIES FURNISHED:

(via certified mail)

Kenne y Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0000 0358 6173)

Michael R. D Ó Lugo, Esquire

Wicker, Smith , O Ó Hara, McCoy, Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802

(eServed)

(Certified Mail No. 7014 2120 0000 0358 6180)

Jeffrey P. Brock, Esquire

Smith Stout Bigman and Brock PA

444 Seabreeze Boulevard , Suite 900

Daytona Beach, Florida 32118

(eS erved)

(Certified Mail No. 7014 2120 0000 0358 6197)

James A. Martin, Jr., Esquire

Macfarlane Ferguson & McMullen

625 Court Street, Suite 200

Clearwater, Florida 33756

(eServed)

(Certified Mail No. 7014 2120 0000 0358 6203)

Maria D. Tejedor, Esquire

Die z - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail No. 7014 2120 0000 0358 3126)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Flori da 32399 - 3275

(Certified Mail No. 7014 2120 0000 0358 8704)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0000 0 358 8711)

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 Rul es 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 Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompan ied 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).