16-003531N Luis Arturo Jimenez And Priscilla Franco, Individually And On Behalf Of Dallas Jimenez, A Minor 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 Tuesday, August 21, 2018.

Summary: Notice was not required because Petitioner presented to the hospital in an emergency medical condition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS ARTURO JIMENEZ and

PRISCILLA FRANCO, individually

and on behalf of DALLAS JIMENEZ,

a minor,

Petitioners,

vs. Case No. 16 - 3531N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION, a/k/a NICA ,

Respondent,

and

SOUTH MIAMI HOSPITAL, INC.,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER ON NOTICE

A final hearing was held in this case before Todd P.

Resavage, an Administrative Law Judge ( ALJ) of the Division of

Administrative hearings (DOAH), on April 17, 2018, by video

teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner s : Carlos Diez - Arguelles , Esquire

Brooke Charlan, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

For Intervenor: Scott Edward Solomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon and Bonner, P.A.

Suite 500

135 San Lorenzo Avenue

Coral Gables, Florida 33146

STATEMENT OF THE ISSUE

Whether notice was accorded the patient, as contemplated by

section 766.316, Florida Statutes, or whether the failure to give

notice was excused because the patient had an emergency medical

condition, as defined in section 395.002(8), or the giving of

notice was not practicable.

STATEMENT OF THE CASE

On June 22, 2016, Petitioners, Luis Arturo Jimenez and

Priscilla Franco, a s parents of Dallas Jimenez (Dallas), a mi nor,

filed an Amended Petition Under Protest Pursuant to Florida

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

determination of compensability under the Florida Birth - Related

Neurological Injury Compen sation Plan (Plan). The Petition named

Sabriya Ishoof, M.D., as the physician who provided obstetric

services at the birth of Dallas on April 8, 2014, at South Miami

Hospital, d/b/a Baptist Health South Florida (South Miami), in

Miami, Florida.

On August 3, 2016, South Miami filed a Petition for Leave to

Intervene, which was granted by Order dated August 11, 2016. On

June 22, 2017, the undersigned conducted a telephonic status

conference with the parties. During said conference,

PetitionersÓ counsel rep resented that Petitioners were not

contesting that PetitionersÓ claim was compensable under the

Plan. Thereafter, on June 28, 2017, Respondent filed a Renewed

Motion for Summary Final Order (RespondentÓs Motion), addressing

the issue of compensability.

On July 20, 2017, a Partial Summary Final Order was entered,

finding that Dallas had sustained a birth - related neurological

injury and finding PetitionersÓ claim to be compensable.

Jurisdiction was retained on the issues of whether the notice

requirements of section 766.316 were satisfied and to determine

an award pursuant to section 766.31 .

On November 1, 2017, the undersigned issued an Order

Requiring Response, directing the parties to provide a written

status report as to the remaining issues and whet her a final

hearing was required. In response, on November 8, 2017,

Petitioner s represented that Intervenor failed to provide

adequate notice pursuant to section 766.316, and requested a

final hearing.

The final hearing was scheduled for April 17, 2017. On

April 11 , 2018, the parties filed a Joint Pretrial Stipulation

wherein the parties stipulated that Petitioner, Priscilla Franco,

delivered her son, Dallas, at South Miami on April 8, 2014. The

final hearing proceeded as noticed. The final hearing Tr anscript

was filed on May 7, 2018. The identity of the witnesses and

exhibits and the rulings regarding each are as set forth in the

Transcript.

Based upon the partiesÓ stipulation at the conclusion of the

hearing, the partiesÓ proposed orders were to b e submitted 30

days after the Transcript was filed. Ultimately, after granting

two extensions, the proposed orders were to be filed on or before

June 22, 2018. The parties timely submitted the proposed orders ,

which have been considered in issuing this S ummary Final Order.

FINDINGS OF FACT

1. On April 8, 2014, at approximately 7:33 a.m.,

Petitioner, Priscilla Franco, presented to FishermanÓs Community

Hospital (FishermanÓs) in Marathon, Florida. At the time, she

was 33 weeks and 6 days pregnant. Her primary complaint at

FishermanÓs was abdominal pain. It was noted that her lower

abdominal pain was sharp and had begun at 4:00 a.m.

At 7:40 a.m., her pain was noted to be a 5 out of 10 on a

10 - point pain scale.

2. At 7:51 a.m., Ms. Franco was diagnosed at FishermanÓs

with Ðactive labor, premature.Ñ 1 / As FishermanÓs does not have

obstetrical services available, a transfer was initiated. At

approximately 8:45 a.m., Sabrya Ishoof, M.D., accepted the

transfer of Ms. Franco to South Miami.

3. Dr . Ishoof is a self - employed obstetrician/gynecologist.

At all times relevant to this proceeding, she held staff

privileges at South Miami . On April 8, 2014, she was called in

to treat Ms. Franco as the on - call emergency obstetrician. Prior

to this date, Dr. Ishoof and Petitioner did not have a physician -

patient relationship for obstetrical services. Similarly,

Ms. Franco did not have such a relationship with South Miami.

4. At approximately 9:54 a.m., Ms. Franco was transported

via helicopter provid ed by Lifenet from FishermanÓs to South

Miami, where she arrived at approximately 11:15 a.m. Upon

arrival, Ms. Franco was taken to the antepartum unit, where she

was initially assessed and examined by Carmen Davis, R.N. , and

Melissa Luna, R.N. The initia l assessments included, inter alia,

placing an external fetal monitor on Ms. Franco and performing a

vaginal examination. The vaginal examination revealed that

Ms. FrancoÓs cervix was 3 cm dialated and had thinned to

60 percent effacement.

5. At appr oximately 11:37, Nurse Luna documented that

Ms. Franco was having u terine contractions, lasting 30 to 60

seconds. The contractions resulted in cramping abdominal pain.

The pain w as described as a 5 - 6 on the 10 - point pain scale.

At 11:38 a.m., this ass essment was communicated to Dr. Ishoof.

Two minutes later, Dr. Ishoof issued her Admission Order , wherein

she admitted Ms. Franco to the antepartum unit and ordered

magnesium, antibiotics, insulin, as well as an ultrasound. The

decision to admit Ms. Fran co was based upon the following:

Ms. FrancoÓs prior history of a preterm Cesarean delivery,

cervical dil ation, and uterine contractions -- being in active

labor.

6. At 12:06 p.m., Nurse Luna documented that Ms. Franco was

having uterine contractions las ting 50 to 60 seconds.

At 12:13 p.m., Nurse Davis contacted Dr. Ishoof regarding the

external fetal monitoring interpretation, the contraction

pattern, pain assessment, and interventions performed.

7. Nurse Davis, at approximately 12:14 p.m., proceede d with

admission paperwork with Ms. Franco. A packet of information was

provided to Ms. Franco, which, inter alia, included a NICA

brochure, entitled ÐA Peace of Mind for an Unexpected Problem,Ñ

and a form acknowledging receipt of the brochure, entitled

Ð Notice to Obstetric Patient.Ñ The notice language, which is

contained on a document bearing the label for South Miami,

provides as follows:

NOTICE TO OBSTETRIC PATIENT

I have been furnished information by the

hospital prepared by the Florida Birth

Relat ed Neurological Injury Compensation

Association, and have been advised that my

doctor may be a participating physician in

that program, wherein certain limited

compensation is available in the event

certain neurological injury may occur during

labor, deliv ery, or resuscitation. For

specifics on the program, I understand I can

contact the Florida Birth Related

Neurological Injury Compensation Association

(NICA), P.O. Box 14567, Tallahassee, Florida

32317 - 4567, (800) 398 - 2129. I further

acknowledge that I h ave received a copy of

the brochure prepared by NICA.

8. Nurse Davis credibly testified that, while she does not

have a specific recollection of Ms. Franco, her routine practice

was to provide the NICA brochure and notice acknowledging receipt

to h er patients upon admission. Specifically, Nurse Davis

testified that she would provide the documents and request the

patient to sign the same. Nurse Davis would then sign the

document acknowledging the patientÓs signature and receipt. In

this matter, Ms . FrancoÓs signature appears under the above -

referenced notice. The document further bears the signature of

Nurse Davis as a witness to Ms. FrancoÓs signature.

9. While Ms. Franco testified that she did not receive the

NICA brochure, Ms. FrancoÓs testimony on this fact is not

credited. The better evidence establishes that Ms. Franco was

provided the NICA brochure as described by Nurse Davis and

acknowledged by Ms. FrancoÓs signature.

10. At 12:34 p.m., Dr. Ishoof ordered Ms. Franco to be

p repared for a Cesarean section delivery. Dallas was delivered

at 1:51 p.m. It is undisputed that Dr. Ishoof was the physician

providing obstetric services at DallasÓs birth. The evidence

established that Dr. Ishoof was a Plan - participating physician at

that time. The evidence further established that South Miami was

a Plan - participating hospital at the time of DallasÓs birth.

CONCLUSIONS OF LAW

11. DOAH has jurisdiction over the parties to and the

subject matter of this proceeding. §§ 766.301 - 766.31 6, Fla.

Stat.

12. The issue to be determined at this juncture is whether

notice was provided pursuant to section 766.316, which provides:

Notice to obstetrical patients of

participation in the plan . Ï Each hospital with

a participating physician on its s taff 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 s hall be provided on

forms furnished by 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 acknowledg ing receipt of the notice

form. Signature of the patient acknowledging

receipt of the notice form raises a

rebuttable presumption that the notice

requirements of this section have been met.

Notice need not be given to a patient when

the patient has an eme rgency medical

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

when notice is not practicable.

13. Section 39 5.002(8)(b), Florida Statutes, defines

Ðemergency medical conditionÑ as follows:

(8) ÐEmergency medical conditionÑ 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. That there is evidence of the onset and

persistence of uterine contractions or

rupture of the membranes.

14. Ms. Franco signed an acknowled gement form stating that

she received a NICA brochure. The form was signed within

approximately one hour upon first arriving at South Miami. Her

signature raises a rebuttable presumption that the notice

requirements of section 766.316 have been met by In tervenor.

15. Intervenor contends that Petitioners were provided with

proper notice pursuant to section 766.316 and, in any event,

notice was not required to be given due to Ms. FrancoÓs emergency

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

arrival at South Miami on April 8, 2014, the day Dallas was born.

As the proponents of the proposition that appropriate notice was

given or excused, the burden on this issue of notice is upon

Intervenor. Tabb v. Fla. Birth - Related Neurological I njury Comp.

AssÓn , 880 So. 2d 1253, 1257 (Fla. 1st DCA 2004).

16. Intervenor has met its burden on the issue of notice.

The evidence clearly establishes that, when Ms. Franco presented

to South Miami, on April 8, 2014, she had an emergency medical

condition as defined in section 395.002(8)(b)3. Specifically,

the undisputed evidence establishes that Ms. Franco was

experiencing persistent uterine contractions upon her arrival and

subsequent admission to the hospital. Accordingly, neither

Dr. Ishoo f nor South Miami Hospital was required to provide NICA

notice pursuant to section 766.316.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Intervenor and Sabriya Ishoof, M.D., we re not

obligated to provide notice pursuant to section 766.316, because

P etitioner , Priscilla Franco, presented to South Miami in an

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

It is further ORDERED that the parties are accorded 30 days

from the date of this Or der to resolve, subject to approval of

the ALJ, the amount and manner of payment of an award to

Petitioner; the reasonable expenses incurred in connection with

the filing of the claim, including reasonable attorneyÓs fees and

costs; and the amount owing fo r expenses previously incurred. If

not resolved within such period, the parties shall so advise the

ALJ, and a hearing will be scheduled to resolve such issues.

Once resolved, an award will be made consistent with

section 766.31.

DONE AND ORDERED this 18th day of July , 2018 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(8 50) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of July , 2018 .

ENDNOTE

1/ In her deposition, Sabriya Ishoof, M.D., defined active labor

as a Ðcervical change wit h painful uterine contractions.Ñ

Prematurity was defined by Dr. Ishoof as Ðany baby before 37

weeks.Ñ

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Ch ristopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9769 6717)

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified Mail Number 7018 0040 000 0 9769 6724)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(eServed)

(Certified Mail Number 7018 0040 0000 9769 6731)

Scott Edward Solomon, Esquire

Falk, Waas, Hernandez, Cortina,

Solomon and Bonner, P.A.

Suite 500

135 San Lorenzo Avenue

Coral Gables, Florida 33146

(eServed)

(Certified Mail Number 7018 0040 0000 9769 6748)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee , Florida 32399 - 3275

(Certified Mail Number 7018 0040 0000 9774 2889 )

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail Number 7018 0040 0000 9774 2896 )

Sabriya Ishoof, M.D.

Suite 200

10700 North Kendall Drive

Kendall, Florida 33176

(Certified Mail Number 7018 0040 0000 9772 1129 )

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 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).