16-003532N Latoya Johnson, On Behalf Of And As Parent And Natural Guardian Of Rhy?Lee Wilson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, July 10, 2018.

Summary: NICA Notice was provided to Petitioner by hospital, and physician provider is excused from giving notice due to emergency circumstances. NICA claim is compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LATOYA JOHNSON, on behalf of and

as parent and natural guardian

of RHYÓLEE WILSON, a minor,

Petitioner,

vs. Case No. 16 - 3532N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent ,

and

ORLANDO HEALTH, INC., d/b/a

WINNIE PALMER HOSPITAL FOR WOMEN

& BABIES; AND RONALD EASON,

M.D.,

Intervenors.

_______________________________/

FINAL ORDER

A final hearing was held in this matter before W. David

Watki ns, a duly - appointed Administrative Law Judge (ALJ) of the

Division of Administrative Hearings (DOAH) , on January 18, 2018,

in Orlando, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

For Intervenors: Andrea L. Diederich, Esquire

Bradley P. Blystone, Esquire

Marshall Dennehey Warner Coleman

& G oggin

Suite 550

315 East Robinson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether notice was accorded the patient, as contemplated by

section 766.316, Florida Statutes (2017), 1/ 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.

PRELIMINARY STATEMENT

On May 27, 2016 , Latoya John son, on behalf of and as

parent and natural guardian of R hyÓLee Wilson, a minor, filed

a Petition for Benefits (Pet ition) with DOAH alleging that

RhyÓLee Wilson suffered brain damage as a result of a birth -

related neurological injury and requesting benefits available

under section 766.301, et seq. , Florida Statute s .

On July 29, 2016, Intervenors, Orlando Health, Inc . (OHI) ,

and Ronald Eason, M.D. (Dr. Eason) , filed a motion to intervene,

which was granted by Order dated August 11, 2016.

On October 13, 2016, Respondent, Florida Birth - Related

Neurological Injury Compensation Association (NICA) , responded

to the Petiti on for Benefits. Therein , NICA asserted its

determination that the claim was compensable, based upon the

opinions of Dr. Willis and Dr. Sigurdardottir, whose reports and

expert medical opinions were provided therewith.

A Notice of Hearing was issued on December 1, 2016,

scheduling the final hearing for June 1, 2017.

Following written discovery exchanged between the parties,

NICA filed a Motion for Summary Final Order on March 8, 2017 ,

seeking an order establishing that RhyÓLee Wilson had suffered a

bi rth - related neurological injury as defined by section

766.302(2). As Petitioner failed to timely disclose any

expert(s) or opinions of expert(s) to rebut the opinions of

NICAÓs experts and failed to timely respond to expert discovery

served by NICA, Respo ndent also filed a Motion for Protective

Order to prevent the depositions of NICAÓs experts (which had

been requested by PetitionerÓs counsel) from going forward.

A motion hearing was held on March 15, 2017 , and an Order

on Pending Motions was subsequen tly issued by ALJ Barbara Staros

on March 16, 2017. Said O rder denied NICAÓs Motion for

Protective Order (and required the depositions of NICAÓs experts

to go forward), reserved ruling on NICAÓs Motion for Summary

Final Order, and required Petitioner to Ð indicate whether or not

she [would] be challenging the issue of compensability at the

final hearing, and if so, . . . disclose the names(s) and

business address(s) of any expert whose testimony and opinion

she intend [ed] to rely on at hearingÑ no later tha n May 1, 2017.

Following the depositions of NICAÓs experts, Dr. Willis and

Dr. Sigurdardottir, NICA filed a Renewed Motion for Summary

Final Order, once again requesting an Order establishing that

RhyÓLee Wilson had suffered a birth - related neurological i njury

as defined by section 766.302(2). This motion was granted and a

Partial Summary Final Order was entered on June 30, 2017. In

the June 30, 2017 Order, the undersigned determined that RhyÓLee

Wilson was born on August 5, 2014 , at Winnie Palmer Hospit al,

that RhyÓLee Wilson weighed in excess of 2,500 grams at birth,

and that RhyÓ Lee Wilson was delivered by Dr. Eason, who was a

plan - participating physician at the time of RhyÓLee WilsonÓs

birth. The undersigned also determined that based upon the

credit ed and unrefuted opinions of Dr. Willis and

Dr. Sigurdardottir, RhyÓLee Wilson sustained an injury to her

brain during labor, delivery, and continuing into the immediate

post - delivery period due to oxygen deprivation, which resulted

in brain injury renderi ng RhyÓLee Wilson permanently and

substantially mentally and physically impaired. Jurisdiction

was reserved to determine whether the notice requirements of

section 766.316 were satisfied and concerning the issue of an

award pursuant to section 766.31. Th e Partial Summary Final

Order is adopted by, and incorporated in, this Final Order as

though restated in its entirety.

On June 30, 2017, the undersigned also issued an Amended

Notice of Hearing , which clarified that the issues to be heard

at the hearing o n October 10, 2017 , were whether notice was

accorded the patient, as contemplated by section 766.316, 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.

On July 7, 2017, Petitioner filed a Motion for

Reconsideration/Rehearing regarding the Partial Summary Final

Order entered June 30, 2017 , or in the alternative, a Motion to

Set Aside the Partial Summary Final Order of June 30, 2017.

Respondent filed its Response and Opposition to PetitionerÓs

motion on July 14, 2017 , and Petitioner filed a Reply to

RespondentÓs Response and Opposition on July 24, 2017. By Order

dated July 26, 2017, the undersigned denied PetitionerÓs Moti on

for Reconsideration. Petitioner then filed an appeal of the

June 30, 2017 , Order with the Fifth District Court of Appeal

(DCA) on July 31, 2017. Said appeal was ultimately dismissed as

premature by the Fifth DCA on September 19, 2017.

On August 28, 2 017, Petitioner filed her Motion for Summary

Final Order regarding Notice. PetitionerÓs motion was based

upon the deposition testimony of Petitioner , that it was not her

signature on the Notice of NICA participation by Orlando Health,

Inc. (on its own beh alf and on behalf of its employed

physicians, etc.) , dated May 11, 2014. Intervenor filed a

Response in Opposition to PetitionerÓs Motion for Summary Final

Order on September 7, 2017 , which Petitioner replied to on

September 14, 2017. By Order dated Sept ember 19, 2017,

PetitionerÓs Motion for Summary Final Order regarding Notice was

denied.

Petitioner filed her Motion for Reconsideration of Order

Denying Summary Judgment on September 27, 2017 , and a Renewed

Motion for Summary Final Order Regarding Noti ce on September 29,

2017. A motion hearing was held on October 3, 2017 , and

thereafter, on October 25, 2017, this Court entered an Order

Denying PetitionerÓs Motion for Reconsideration of Order Denying

Summary Judgment, and an Order Denying PetitionerÓs R enewed

Motion for Summary Final Order. On that same date , the

undersigned also entered an Order granting in part PetitionerÓs

motion to permit the testimony of Thomas Vastrick at the final

hearing and allowing Intervenors time to obtain a handwriting

expe rt and to conduct discovery pertaining to PetitionerÓs

handwriting expert.

A Notice of Hearing was issued on November 22, 2017. Said

notice established that the final hearing would go forward on

January 18, 2018 , and that the issues to be determined were

whether notice was accorded the patient, as contemplated by

section 766.316, 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 practi cable.

On December 22, 2017, Intervenor filed a Motion to Compel

(PetitionerÓs) Expert Discovery (responses), a Motion to Compel

Earlier Deposition of Thomas Vastrick, and a Motion to Strike

Thomas Vastrick (as a witness for Petitioner). On December 26 ,

2017, Petitioner filed a Response in Opposition to IntervenorÓs

Motion to Compel and Motion to Strike , as well as a Motion for

Protective Order regarding Thomas Vastrick.

On January 5, 2018, Intervenor filed a Motion for Partial

Summary Final Order as to Dr. Eas onÓs Duty to Provide Notice

and Supporting Memorandum of Law. NICA filed a Notice of

Joinder in IntervenorÓs Motion for Partial Summary Final Order

on January 19, 2018. In conjunction with IntervenorÓs Motion

for Summary Final Order with regar d to Dr. Eason, Intervenor

also filed, inter alia , the Affidavit of Dr. Eason, EMS records

of Petitioner, the transcript of the deposition of Petitioner

taken August 9, 2017 , and the deposition of Donald Willis, M.D.

On January 9, 2018, Petitioner filed a Motion for

Continuance of the final hearing. That motion was denied by

Order dated January 10, 2018. Petitioner filed an Emergency

Motion for Continuance on January 12, 2018 , and Intervenor filed

a Response in Opposition to PetitionerÓs motion on Janu ary 12,

2018. NICA filed a Motion to Compel PetitionerÓs Counsel to Pay

Dr. Willis for Deposition on January 12, 2018. Petitioner filed

a Motion to Extend Time to Respond to IntervenorÓs Motion for

Partial Summary Final Order and a Supplemental Motion fo r

Continuance of the Final Hearing on January 16, 2018.

Petitioner also filed a Reply in Response to IntervenorsÓ

Response in Opposition to PetitionerÓs Supplemental Motion for

Continuance on January 16, 2018. The undersigned denied

PetitionerÓs Emergenc y Motion for Continuance by Order entered

January 16, 2018.

On January 16, 2018, Petitioner filed the following with

the Fifth DCA: a Petition for Writ of Certiorari; an Emergency

Motion for Review of Order Denying Stay Pending Certiorari

Review; and P etitionerÓs Emergency Motion for Stay Pending

Certiorari Review. On January 17, 2018, Petitioner filed herein

a Motion for Stay Pending Certiorari Review and a Motion to

Disqualify and/or Recuse the Honorable W. David Watkins.

Intervenors filed a Respons e in Opposition to PetitionerÓs

Motion to Extend Time to Respond to IntervenorsÓ Motion for

Partial Summary Final Order and a Motion to Strike Thomas

Vastrick on January 17, 2018.

PetitionerÓs Motion for Stay Pending Certiorari Review was

denied by the undersigned by Order entered January 17, 2018, and

PetitionerÓs Motion to Disqualify a nd/or Recuse the Honorable

W. David Watkins was also denied by the undersigned that same

day.

The Fifth DCA denied PetitionerÓs Emergency Motion for Stay

Pending Certio rari Review and Emergency Motion for Review of

Order Denying Stay Pending Certiorari by Order dated January 17,

2018. The Fifth DCA also dismissed PetitionerÓs Writ of

Certiorari, by Order dated February 8, 2018.

Given the rulings by the appellate court, the formal

hearing went forward on the issue of notice on January 18, 2018,

as scheduled. Despite having notice of the final hearing,

neither Petitioner, her counsel, nor any representative thereof

appeared. At hearing, the undersigned received into evi dence

IntervenorÓs exhibits, and heard the sworn testimony of Dean

Ritchey, Ronald Eason, M.D., Marlene Wooley, Theresa Dean,

Bridget Walters, and Donald Willis, M.D. Specifically relevant

to the issue of an emergency medical condition excusing notice

of NICA participation by Dr. Eason, the undersigned heard the

live testimony of Dr. Eason , and the deposition testimony of

Dr. Willis was published in the record.

At hearing the undersigned also heard argument of counsel

on IntervenorsÓ Motion to S trike Tho mas Vastrick, IntervenorsÓ

Motion for Summary Final Ord er on Notice with regard to

Dr. Eason, and RespondentÓs Motion to Compel PetitionerÓs

counsel to pay Dr. Willis for his deposition.

As to the Motion for Sum mary Final Order on Notice with

regard to D r. Eason, In tervenors argue that although a health

care provider is requi red to provide notice of his or her

participation in NICA, an exception exists under section 766.316

when a patient has an emergency medical condition as defined by

section 395.002(8) (b) or when notice is not practicable.

Respondent contends that based upon the medical records of

Petitioner, the deposition testimony of Petitioner, the

deposition testimony of Dr. Willis, and the hearing testimony of

Dr. Eason, at the time Petitioner pr esented to the hospital on

August 5, 2014, an emergency medical condition existed which

excused Dr. EasonÓs provision of notice of his participation in

NICA. Although Respondent takes no position on the factual

issue of whether notice of participation in NICA was given to

Petitioner, Respondent agrees with Intervenor that provision of

notice to Petitioner of Dr. EasonÓs participation in NICA should

be excused due to an emergency medical condition.

At hearing the undersigned ruled that IntervenorsÓ Motio n

to Strike Thomas Vastrick was rendered moot since Thomas

Vastrick was not called to testify at the hearing by Petitioner

or PetitionerÓs counsel. Ruling was reserved on IntervenorsÓ

Motion for Summary Final Order with regard to Dr. Eason and

RespondentÓ s Motion to Compel.

Th e undersigned issued a Notice of Right to File Proposed

Final Or ders on January 19, 2018. The T ranscript of the final

hearing was filed by Respondent on February 9, 2018.

Thereafter, on January 19, 2018 , both Respondent and

Inter venors filed Proposed Final Orders. Petitioner did not

file a p roposed f inal o rder.

FINDINGS OF FACT

Based upon the demeanor and credibility of the witnesses,

other evidence presented at the final hearing, and on the entire

record of this proceeding, th e following Findings of Fact are

made:

1 . Petitioner, Latoya Johnson, is the mother/natural

guardian of Rhy'Lee Wilson.

2 . Rhy'Lee was born at Winnie Palmer Hospital for Women &

Babies, a licensed Florida hospital, in Orlando, Florida , on

August 5, 2011.

3 . The physician providing obstetric services at the time

of birth was Ronald Eason, M.D.

4 . Rhy'Lee was delivered via stat cesarean - section,

necessitated by a placental abruption.

5 . Rhy'Lee suffered from oxygen deprivation prior to

delivery, during d elivery, and in the immediate post - delivery

resuscitative period, as determined pursuant to the

undersignedÓs June 30, 2017 , Partial Summary Final Order.

6 . Rhy'Lee is substantially and permanently mentally and

physically impaired, as determined pursuant to the undersigned's

June 30, 2017 , Partial Summary Final Order.

7 . Intervenors, OHI and Ronald Eason, M.D., are NICA

participants.

Facts Relating to OHI's Compliance with NICA Notice Requirements

8 . On May 11, 2014, Ms. Johnson presented to the Emergenc y

Department of Winnie Palmer Hospital for Women and Babies with

complaints of vaginal pain with swelling. She was noted to be

24.1 weeks pregnant.

9 . During the May 11, 2014 , visit, Ms. Johnson signed the

NICA acknowledgement form dated May 11, 2014. T he form,

entitled "Florida Birth - Related Neurological Injury Compensation

Plan Acknowledgement of Patient Receipt of Notice Hospital,"

provided the following acknowledgement:

I have been advised that Orlando Health,

Inc. and its employed physicians, reside nts,

mid - wives and physician assistants, as well

as any participating physician on our

medical staff credentialed to provide

obstetrical services, are members in the

Florida Birth - Related Neurological Injury

Compensation Plan (NICA). This Plan

provides th at certain limited compensation

is available in the event certain birth -

related neurological injuries may occur

during labor, delivery or post - delivery

resuscitation, irrespective of fault. For

specifics on the Plan, I understand I can

contact the Florida Birth - Related

Neurological Injury Compensation Association

(NICA), Post Office Box 14567, Tallahassee,

FL 32317 - 4567, 904.488.8191 /800.398.2129 .

I further acknowledge I have received from

Orlando Health, Inc., a copy of the form

brochure regarding the P lan. The form

brochure is prepared and furnished by the

Florida Birth - Related Neurological Injury

Compensation Association (NICA).

10 . Ms. Johnson's signature and initials on the NICA

acknowledgement form , dated May 11, 2014 , were witnessed by

Marlene W oolley. At the time, Ms. Woolley was a f inancial

c ounselor employed by OHI. Her job was to handle the

preregistration of patients for upcoming surgeries and for

emergency registrations.

11 . During Ms. Woolley's depos ition, she testified that

she did not recall t he night that she witnessed Ms. Johnson's

signature. Nevertheless, she testified that she definitively

was present while Ms. Johnson signed the NICA acknowledgement

form, and that the signature on the form bel onged to

Ms. Johnson, because Ms. Woo lley's signature appears on the form

under the witness line. Ms. Woolley further testified as

follows r egarding her encounter with Ms. Johnson and her routine

practice at Winnie Palmer Hospital:

• On May 11, 2014, at 9:07 p.m., the NICA

acknowledgement form was printed by the

financial counselor in triage, prior to it

being presented to Ms. Johnson for

signature.

• At 9:15 p. m., Ms. Woolley went to see

Ms. Johnson. She walked into her room and

verif ied that she was Ms. Johnson by

askin g for her name. A copy of

Ms. Johnson's driver's license had been

previously collected by triage.

• Ms. Woolley is typically in the patient's

room for two to three minutes, so she

knows that Ms. Johnson signed the NICA

acknowledgement form within two to three

minutes of 9:15 p.m .

• After Ms. Johnson signed the NICA

acknowledgement form, Ms. Woolley went to

the back room, put the documents next to

her computer, and then went to see the

next patient.

• No one else would have handled the

documents containing Ms. Johnson's

signature wh ile Ms. Woolley was seeing

other patients, and no one else would have

handled the documents from the time they

were signed by Ms. Johnson at

ap proximately 9:15 p.m. until Ms. Woolley

scanned and then shredded the documents at

approximately 11:20 p.m.

• At 1 1:20 p.m., Ms. Woolley entered her

account notes into the computer stating

that Ms. Johnson signed the NICA form and

that Ms. Woolley sent the scanned forms to

Health Information Management.

• Ms. Woolley had no reason to doubt that

the signature which appe ars on the NICA

acknowledgement form belongs to a patient

by the name of Latoya Johnson, and she was

confi dent that the signature was

Ms. Johnson's signature because

Ms. Woolley was there, she witnessed it,

and he r own signature was there.

Ms. Woolley wou ld actually hold the

clipboard while the patients signed the

forms, so she would literally watch them

sign while she was there. Her eyes would

be on the patient while signing.

• If a patient refused to sign the NICA

acknowledgement form, Ms. Woolley would

write "refused to sign" on the form and it

would get scanned into the system. She

would also note in the account notes that

the patient refused to sign. The fact

that Ms. Woolley's account notes state

that the patient signed means that she

accepted the N ICA pamphlet.

12 . Bridget Walters, OHI's c orporate d irector of Patient

Accounting, was deposed as OHI's c orporate r epresentative on the

issue of notice. During Ms. Walter's deposition, she testified

as follows regarding OHI's routine practices for provi ding NICA

notice to patients at Winnie Palmer Hospital in 2014:

• The hospital (Winnie Palmer Hospital)

requires that all pregnant patients sign

the NICA form even if they state that they

are not going to deliver at Winnie Palmer

Hospital.

• If the patient re fuses to sign the form,

another team member would witness that the

patient refused to sign.

• Ms. Walters is not aware of any instance

in which a patient's signature has been

forged by anyone at OHI.

• Ms. Walters has no reason to believe that

the signature on the May 11, 2014 , NICA

acknowledgement form was forged.

• OHI team members are trained to enter

notes into the patient's account after

they have completed the registration with

the patient.

• In this case, the account notes of

11:2 0 p.m. on May 11, 2014 , reflect that

the patient signed the NICA form and that

it was sent to Health Information

Management.

13 . Intervenors also presented the testimony of their

forensic handwriting expert, Theresa Dean, via video conference.

Ms. Dean is qualified to render opinions as a forensic

handwriting expert by virtue of her training through the Secret

Service basic and advanced training programs, the North Carolina

Justice Academy's training program in document forensics, the

Bradley document forensics training progra m, and the

International Graphoanalysis Society's course of study in

graphoanalytic technique. Ms. Dean's full credentials are

summarized in her Curriculum Vitae, which was received in

evidence.

14 . Ms. Dean testified that she was retained by counsel

for Intervenors to look at the questioned document, which was

described as the NICA acknowledgment form dated May 11, 2014,

and to determine whether or not the handwritten signature on

that document was written by Ms. Johnson. In addition to

reviewing the NI CA acknowledgme nt form dated May 11, 2014,

Ms. Dean reviewed 77 other documents which were identified as

documents containing the signatures of Ms. Johnson from April of

2013 through December of 2015. Ms. Dean also reviewed portions

of Ms. JohnsonÓs depos ition transcript.

15 . Ms. Dean created two c omparison charts to assist

with her analysis of the signatures. The comparison charts

allow for a side - by - side comparison of the similarities and

dissimilarities of the signatures.

16 . Ms. Dean offered the fol lowing opinions based on her

review:

• Based on a reasonable degree of certainty,

it is highly probable that the NICA

acknowledgement form dated May 11, 2014 ,

was signed by Ms. Johnson.

• Ms. Johnson has "quite a range of

variation" when she signs her signatu re,

and at least five different signature

styles were identified in the writings

dating from 2013 through 2015.

• The most common of the five signature

styles was the one used on the NICA

acknowledgement form dated May 11, 2014.

The signature style contain s a clockwise

motion in the initial stroke.

• Several factors can cause variation in a

person's signature, including stress

level, their position, emotional upset or

trauma.

• The signature on the May 11, 2014 , NICA

acknowledgement form w ould have been very

difficult to duplicate by a forger. The

signatu re contains no indications of a

forgery su ch as evidence of hesitation, a

drawn look to the writing, or tremors.

Rather, the signature has smooth

directional changes and the lower loop is

nice and smooth. T here is no blotching or

blobs of ink, or pooling of ink, or any

angularity that would call into question

the authenticity of the signature.

1 7 . The unrebutted credible evidence of record established

that Ms. Johnson signed the NICA acknowledgement form s ometime

between 9:07 p.m. and 11:20 p.m. , on May 11, 2014.

Dr. Eason's Excusal from Providing Notice due to Emergency

Circumstances :

1 8 . Dr. Eason is a board - c ertified

o bstetrician/ g ynecologist, who joined the medical education

group at OHI in 2007. As ev idenced by NICA Certificate

No. 25687, Dr. Eason was a participant in the Florida Birth -

Related Neurological Injury Compensation Plan from January 1,

2014 , to December 31, 2014.

1 9 . On August 5, 2014, Ms. Johnson became Dr. Eason's

patient during her a dmission to Winnie Palmer Hospital.

Ms. Johnson was admitted to Winnie Palmer Hospital at

12:23 a.m. , on August 5, 2014.

20 . Ms. Johnson's complaint s at the time of admission

were extreme pain, weakness and some nausea. She had low

blood pressure and th e fetal heart rate was determined to be

extremely low. It appeared Ms. Johnson was suffering a

placental separation or placental abruption. She was admitted

and quickly transferred to an operating room for an emergency

cesarean section.

2 1 . Placental ab ruption is the premature separation of the

placenta from its attachment to the inside wall of the uterus,

which compromises the blood flow to the baby and thereby

compromises oxygen to the baby and creates an urgent fetal

distress condition.

2 2 . A normal heart rate fo r a n unborn, late - term baby is

between 110 and 160 beats per minute. In Ms. Johnson's case,

hospital clinicians were initially unable to find the fetal

heart rate, and when it was found it was between 30 and 60 beats

per minute, which is dang erously low.

2 3 . Ms. Johnson was very quickly transported upstairs for

an emergency cesarean sec tion which was performed by Dr. Eason

at 12:55 a.m. on August 5, 2014. The baby was breach and was

delivered quickly and appeared very flaccid with lack of to ne

and no respiratory effort. The baby was quickly handed to the

neonatal respiratory team which was in the operating room. The

team initiated resuscitation efforts. The cesarean - section

confirmed the initial diagnosis of placental abruption.

2 4 . Ms. J ohnson presented to Dr. Eason with an emergency

medical condition on August 5, 2014, and there was inadequate

time to have e ffected a safe transfer to another hospital prior

to delivery. Emergency treatment was indicated and it would

have been medically i nappropriate to transfer her to another

facility. According to the credible testimony of Dr. Eason, had

a transfer been attempted, it would have caused a threat to the

health and safety of Ms. Johnson and her fetus. With a high

degree of probability, the baby would have died, and quite

possibly the patient would have succumbed to the hemorrhage.

2 5 . Dr. Eason was not Ms. Johnson's private obstetrician

and he did not provide her with any prenatal care prior to his

first encounter with her on August 5, 201 4.

2 6 . It would not have been practicable for Dr. Eason to

provide notice to Ms. Johnson of his participation in NICA on

August 5, 2014, because of her emergency situation when time was

of the essence and the primary focus was on getting care for the

pat ient and her unborn baby as quickly as possible.

2 7 . It would not have been practicable for Dr. Eason to

provide notice to Ms. Johnson of his participation in NICA prior

to August 5, 2014, because he did not know her as a patient

prior to her emergency pr esentation in the emergency department.

Payment of Dr. WillisÓ s Deposition Fee

2 8 . By letter dated December 29, 2016, PetitionerÓs

counsel requested to take the deposition of Dr. Willis.

Thereafter the deposition of Dr. Willis was coordinated with all

c ounsel, and PetitionerÓs counsel issued a Notice of Taking

Deposition Duces Tecum of Dr. Willis on January 31, 2017, and

again on March 15, 2017. There is no indication that the matter

of payment for Dr. WillisÓ s time for his deposition was broached

by co unsel for Respondent.

2 9 . After the deposition w ent forward as noticed on

March 16, 2017, Dr. Willis sent PetitionerÓs counsel his invoice

for his time for his deposition in the amount of $500.00.

Having received no payment from PetitionerÓs counsel, D r. Willis

subsequently reissued his $500 invoice to PetitionerÓs counsel

on June 15, 2017 ; July 26, 2017 ; and November 3, 2017. Counsel

for Respondent also resubmitted Dr. WillisÓ s $500 invoice to

counsel for Petitioner on November 15, 2017 , and December 1,

2017.

30 . There is no evidence of record, or allegation in

RespondentÓs Motion to Compel Payment, that there was any

advance agreement between Petitioner and Respondent for the

payment of Dr. WillisÓ s invoice. It also appears that there was

ample tim e for such agreement to be reached from the time

Dr. Willis was first noticed for deposition, and when his

deposition was actually taken.

CONCLUSIONS OF LAW

3 1 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matt er of these

proceedings. §§ 766.301 - 766.316, Fla. Stat.

3 2 . The Florida Birth - Related Neurological Injury

Compensation Plan (Plan) was established by the legislature "for

the purpose of providing compensation, irrespective of fault,

for birth - related neu rological injury claims" relating to births

occurring on or after January 1, 1989. § 766.301(1), Fla. Stat.

3 3 . The injured "infant, his personal representatives,

parents, dependents and next of kin" may seek compensation under

the Plan by filing a clai m for compensation with DOAH within

five (5) y ears of the infant's birth. §§ 766.302( 3),

766.303(2), 766.305(1) , and 766.313, Fla. Stat. N ICA, which

administers the Plan, has "forty - five (45) days from the date of

service of a complete claim . . . in whi ch to file a response to

the Petition and to submit relevant information relating to the

issue of whether the injury is a birth - r elated neurological

injury . " § 766.305(3), Fla. Stat.

3 4 . If NICA determines that the injury alleged in a claim

is a compensa ble birth - related neurological injury, it may award

compensation to the Claimant, provided that the award is

approved by the ALJ to which the claim has been assigned.

§ 766.305(6), Fla. Stat. The ALJ has exclusive jurisdiction to

determine whether a clai m filed under the Plan is compensable.

§ 766.304, Fla. Stat.

3 5 . In discharging this responsibility, the ALJ must make

the following determinations based upon the available evidence:

• Whether the injury claimed is a birth -

related neurological injury. If the

Claimant has demonstrated, to the

satisfaction of the ALJ, that the infant

has sustained a brain or spinal cord

injury caused by oxygen deprivation or

mechanical injury and that the infant

was thereby rendered permanently and

substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neur ological injury as defined in

§ 766.302(2).

• Whether obstetrical services were

delivered by a participating physician

in the course of labor, delivery or

resu scitation in the immediate post -

delivery period in a hospital; or by a

certified nurse mid - wife in a teaching

hospital supervised by a participating

physician in the course of labor, delivery

or resuscitation in the immediate post -

delivery period in a hosp ital .

• Whether, if raised by the Claimant or

other party, the factual determinations

regardi ng the notice requirements in

§ 766.316 are satisfied. The ALJ has the

exclusive jurisdiction to make these

factual determinations.

§ 766.309(1), Fla. Stat.

3 6 . The only issue to be determined at the final hearing

was whether notice was provided by OHI and Dr. Eason, or whether

the requirement to provide notice was excused, pursuant to

section 766.316, which provides:

Notice to obstetrical patients of

particip ation in the plan. -- 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 -

Rel ated 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

inclu de 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 patie nt sign

a form acknowledging receipt of the notice

form. Signature of the patient

acknowledgin g 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

med ical condition as defined in

s. 395.002(8)(b) or when notic e is not

practicable.

3 7 . Section 766.309(1)(d) provides in relevant part:

(1) The administrative law judge shall make

the following determinations based upon all

available evidence:

* * *

(d) Whethe r, if raised by the claimant or

other party, the factual determinations

regardin g the notice requirements in

s. 766.316 are satisfied. The

administrative law judge has the exclusive

jur isdiction to make these factual

determinations.

3 8 . Petitioner contends that OHI did not give notice

pursuant to sec tion 766.316. In tervenor, OHI, contends that it

provided sufficient notice pursuant to section 766.316.

Intervenor, Dr. Eason, contends that the requirement to provide

notice was excused due to the emergency medical condition

exception. 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).

3 9 . Although Ms. Woolley did not independently remember

her encounter with Ms. Johnson on May 11, 2014, she follows her

normal routine and practice when registering obstetrical

patients, which includes giving the NICA brochure to the patient

and having the p atient 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 c onfor mity with routine practice."

§ 90.406, Fla. Stat.; see also Tabb , 880 So. 2d at 1259.

Ms. Woolley's Account Notes of May 11, 2014 , further corroborate

the fact that Ms. Johnson was provided with a NICA brochure

during that visit and that Ms. Johnson signed the acknowledgment

form.

40 . Although Petitioner denies having been given a NICA

brochure at any time, her signature on the NICA acknowledgment

form dated May 11, 2014, raises the statutory rebuttable

presumption provided by section 766.316 that she not only

received the NICA brochure provided to her on that date, but

also that the notice requirements of section 766.316 were met by

OHI. Based upon the totality of the evidence admitted, the

undersigned finds by a preponderance of the evidence that

Petitioner has not rebutted the statutory presumption.

4 1 . 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 formation of the provider - obstetrical

patient relationship is what triggers the

obligation to furnish the notice. The

determination of when this relationship

commences is a question of fact. Once the

relationship commences, because [section

766.316] is silent on the time period within

which notice must be furnished, under well -

established principles of statutory

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

Water Mgmt. Dist. , 622 So. 2d 520, 523 (Fla.

5th DCA 1993). The determination depends on

the circumstances, but a central

consideration should be whether the patient

received the notice in sufficient time to

make a meaningful choice of w hether to

select another provider prior to delivery,

which is the primary purpose of the notice

requirement.

4 2 . In this case, Ms. Johnson received notice of OHI's

participation in NICA nearly three months prior to her delivery,

which provided her with more than sufficient time to select a

different hospital prior to delivery, had she wished to do so.

4 3 . The signature of Ms. Johnson on the form acknowledging

receipt of the NICA brochure raises a rebuttable presumption

that the notice requirements of N ICA have been met. See

§ 766.316, Fla. Stat.

4 4 . In addition to the presumption, the facts as found

herein support the conclusion that Ms. Johnson was appropriately

provided predelivery notice of NICA participation by OHI. As

such, Petitioner did not ov ercome the rebuttable presumption in

favor of OHI that the NICA notice requirements were met.

4 5 . As to Dr. Eason, the unrefuted evidence supports a

finding that providing notice of his participation in NICA was

not practicable during his only encounter w ith Ms. Johnson on

August 5, 2014 , or any time prior, as Ms. Johnson presented with

a clear emergency medical condition, a placental abruption

resulting in the continuous loss of oxygen to the fetus. The

clear emergency resulted in inadequate time to tran sfer the

patient to another facility prior to delivery, as severe harm or

death to Ms. Johnson and her fetus would have resulted had a

transfer to another facility been attempted.

4 6 . While chapter 766 does not define Ðemergency medical

condition , Ñ sectio n 395.002(8)(b) defines Ðemergency medical

conditionÑ with respect to a pregnant woman as follows:

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 saf ety of the patient or fetus;

or

3. That there is evidence of the onset and

persistence of uterine contractions or

rupture of the membranes.

4 7 . Dr. Eason did not provide care to Ms. Johnson during

her May 11, 2014 , visit to OHI, and he did not establish a

physician - patient relationship with Ms. Johnson until he first

came in contact with her on August 5, 2014 , less than 32 minutes

prior to the emergent delivery of Rhy'Lee Wilson. During these

brief minutes, Ms. Johnson presented with a statutorily defin ed

"emergency medical condition." Delivery was imminent and

necessary to prevent the death of the fetus in utero and to

prevent severe injury to Ms. Johnson. Ms. Johnson could not

have been safely transferred to another hospital for delivery by

a new obs tetrician.

4 8 . In this case, the evidence proved that Dr. Eason had

not established a physicia n - patient relationship with

Ms. Johnson until Ms. Johnson presented with an emergency

medical condition on August 5, 2015. Thus, Dr. Eason was

excused from prov iding notice of his NICA participation.

4 9 . Finally, with regard to the payment of Dr. WillisÓ s

invoice for time spent giving a deposition, Florida Rule of

Civil Procedure 1.390 provides in pertinent part:

(c) Fee. An expert or skilled witness

whose de position is taken shall be allowed a

witness fee in such reasonable amount as the

court may determine. The court shall also

determine a reasonable time within which

payment must be made, if the deponent and

party cannot agree. All parties and the

deponen t sha ll be served with notice of

any hearing to determine the fee. Any

reasonable fee paid to an expert or skilled

witness may be taxed as costs.

50 . While the above provision authorizes the payment of an

expert witness fee for deposition, it also impl icitly recognizes

that there must be coordination between the parties with respect

to arrangements for the payment of the fee. There is no

indication that such discussions took place in this instance.

5 1 . Respondent cites a DOAH Order entered in Jimenez and

Franco v. Florida Birth - Related Neurological Injury Compensation

Association, et al. , DOAH Case No. 16 - 3531N, in support of its

motion to compel payment . However, in ordering that the

requesting party must pay the d eposition fee of an expert

(Dr. Wil lis), ALJ Todd Resavage was informed by Respondent in

that case that:

D uring the scheduling process, and prior to

taking the deposition, the undersigned

counsel's office specifically notified all

other counsel, and in particular counsel for

the Petitioners , that Petitioners' counsel

office needed to contact the doctors

regarding their fees for deposition [see

attached email dated April 4, 2017, attached

hereto as Exhibit "1"]. Thereafter, a

second email was sent to Petitioners'

counsel on April 17th, speci fically

referencing that Dr. Willis's fees for

services would be $500.00 an hour, and as a

courtesy, he would not require payment up

front [see attached email dated April 17,

attached hereto as Exhibit "2"]. Following

that notification, Counsel for the

Pe titioners s ent a confirming email on

April 18th, and served a Notice of

Deposition [see attached email dated

April 18th, attached hereto as Composite

Exhibit "3"]. [2/]

(Motion to Compel PetitionersÓ Counsel to Pay Dr. Willis for

Deposition, para. 4, Nove mber 10, 2017) .

5 2 . Thus, in the Jimenez case, unlike the matter sub

judice , Petitioners were notified in advance that they would be

responsible for the payment of Dr. WillisÓ s deposition fee, and

were informed of his hourly rate for giving a deposition.

Having been put on notice that Petitioners would be responsible

for Dr. WillisÓ s deposition fee, and standing silent as to their

responsibility for, and the amount of the fee, Petitioners

became obliged to pay the fee when they went forward and took

the deposition. Those circumstances are not present in this

case.

ORDER

Based on the foregoing F indings of F act and C onclusions of

L aw, it is ORDERED:

1. The claim for compensation filed by Petitioner, as

parent and natural guardian of Rhy'Lee Wilson, a mino r, is

compensable and is APPROVED. 3/

2. Intervenor, OHI, complied with the statutory Notice

requirements of the NICA plan pursuant to section 766.316,

Florida Statutes.

3. Intervenor, Dr. Eason, was excused from the statutory

Notice requirements of the N ICA P lan pursuant to section

766.316, Florida Statutes, due to the emergency medical

condition exception.

4. RespondentÓs M otion to C ompel PetitionerÓs C ounsel to

P ay Dr. Willis for D eposition is DENIED.

5. Within thirty (30) days of the date of this Ord er,

Petitioner shall inform the undersigned in writing whether

Petitioner accepts an award of NICA benefits.

6. If Petitioner accepts an award for NICA benefits, and

absent a stipulation of the parties, a separate hearing will be

scheduled to determine th e amount and terms of the award

pursuant to section 766.31, Florida Statutes.

DONE AND ORDERED this 2 5th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Divisio n 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 2 5th day of April , 2018 .

ENDNOTE S

1/ Statutory references herein are to the 2017 version of the

Florida Statutes.

2/ In its Response to the Motion to Compel, Petitioners did not

deny that they were informed that they would be responsible for

payment of Dr. WillisÓ s fee , should they elect to go forward with

his deposition.

3/ Compensability of the claim was previously found and

determined by this Court's Part ial Summary Final Order of

June 30, 2017.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Ex ecutive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

Certified Mail No. 7016 0910 0001 7987 7036

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

(eServed)

Certified Mail No. 7016 0910 0001 7987 7401

Andrea L. Diederich, Esquire

Bradley P. Blystone, Esquire

Marshall Dennehey Warner Coleman & Goggin

Suite 550

315 East Robinson St reet

Orlando, Florida 32801

(eServed)

Certified Mail No. 7016 0910 0001 7987 7418

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

Certified Mail No. 7016 0910 0001 7987 7425

Amie Rice, Investi gation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

Certified Mail No. 7016 0910 0001 7987 7432

Justin Senior , Secretary

Health Quality Assurance

Agency for Health Care Administr ation

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Certified Mail No. 7016 0910 0001 7987 7449

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., an d Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).