STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3687

)

GOOD SAMARITAN HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal administrative hearing in the above-styled case, which was consolidated for hearing with Case No. 89-4878R, on February 27-28, in West Palm Beach, Florida, and on March 1, 1990, in Tallahassee, Florida. The record in these consolidated proceedings was closed on August 21, 1990, by entry of the order ruling on objections to certain late-filed exhibits.

APPEARANCES

For Petitioner: H. Darrell White, Esquire

William B. Wiley, Esquire McFarlain, Sternstein, Wiley

& Cassedy, P.A.

First Florida Bank Building Suite 600

Tallahassee, Florida 32301

James A. Farrell, Esquire Staff Attorney

Good Samaritan Hospital Post Office Box 3166 West Palm Beach, Florida

33402-3166

For Respondent: John Rodriguez, Esquire

1317 Winewood Boulevard Building One, Room 304

Tallahassee, Florida 32399-0700 ISSUE

Whether Respondent, Good Samaritan Hospital, violated Sections 395.0142, 395.0143, and 401.45, Florida Statutes, as alleged in the Administrative Complaint that was filed by Petitioner, Department of Health and Rehabilitative Services, against Respondent.

PRELIMINARY STATEMENT

On or about June 12, 1989, Respondent, Department of Health and Rehabilitative Services (DHRS) filed an Administrative Complaint against Petitioner, Good Samaritan Hospital (GSH) alleging that GSH had violated the provisions of Sections 395.0142, 395.0143, and 401.45, Florida Statutes, on the evening of November 30, 1988, by failing to provide neurosurgical treatment to Miriam Rivera, a patient presented to its emergency room by the West Palm Beach Fire Department County Emergency Medical Services (WPBFDEMS). The Administrative Complaint notified GSH that DHRS intended to levy an administrative fine against it in the amount of $10,000.00. GSH timely contested DHRS' proposed action by timely requesting a formal administrative hearing. That case was referred to the Division of Administrative Hearings and assigned Case No. 89-3687.

Subsequent to the filing of the Administrative Complaint against it by DHRS, GSH filed a separate rules challenge which contends that a policy letter issued by Respondent on February 9, 1989, is invalid as a rule that has not been adopted as required by law and that Respondent improperly applied the unpromulgated rule to the incident of November 30, 1988. That case was also referred to the Division of Administrative Hearings and was assigned Case No.

89-4878R.

With the agreement of the parties, Case No. 89-3687 and Case No. 89-4878R were consolidated for formal hearing. This Recommended Order is being entered in Case No. 89-3687 while a Final Order is being separately entered in Case No. 89-4878R.

At the formal consolidated hearing, GSH presented its evidence relating to the rules challenge separately from its evidence relating to the administrative complaint. GSH's case in the rules challenge consisted in the introduction of six documentary exhibits, each of which was accepted into evidence. Without objection, DHRS presented its response to the rules challenge and its case in chief on the administrative complaint without distinguishing which evidence was being presented for which case.

DHRS presented the testimony of Connie E. Cheren, Richard Slevinski, M.D., Robert R. Boike, John Udell, and Edward L. Wilson. Ms. Cheren is Director of DHRS' Office of Licensure and Certification and was accepted as an expert in the regulation of hospitals in the state of Florida based on state and federal regulations. Dr. Slevinski is the Director of DHRS' Emergency Medical Services and was accepted as an expert in emergency medicine. Mr. Boike is the Chief of Emergency Medical Services, West Palm Beach Fire Department and was accepted as an expert in the administration of emergency medical services by the West Palm Beach Fire Department. Mr. Udell is the Director of Emergency Medical Services for Palm Beach County. Mr. Wilson is DHRS' Program Supervisor, Enforcement Section, Office of Emergency Medical Services. DHRS also presented the deposition testimony of Thomas B. Reed, an expert in general hospital organization, and Dr. Ignacio Antonio Magana, a neurosurgeon. DHRS exhibits 1-

11 and portions of Exhibits 12-13 were accepted into evidence.

As to Case No. 89-3687, GSH presented the testimony of Melville "Chip" Harris, Edith Lynne Aldridge-Yakashe, Sue Meyer, Richard J. Radna, M.D., Melvin

1. Van Woert, M.D., and Robert A. Brodner, M.D. Mr. Harris is Vice-President of GSH. Ms. Aldridge-Yakashe is a registered nurse employed by Palm Beach Gardens Medical Center. Ms. Meyer is GSH's Assistant Vice-President of Nursing. Dr. Radna is Director of Neurological Ambulatory Care, Mount Sinai Center, New York,

   New York, and was accepted as an expert in neurosurgery. Dr. Van Woert is a Professor, Departments of Neurology and Pharmacology, Mount Sinai School of Medicine, New York, New York, and was accepted as an expert in clinical neuro- pharmacology. Dr. Brodner is a neurosurgeon on the staff of GSH. Dr. Radna and Dr. Van Woert testified by video deposition, and transcriptions of the video depositions were also filed. The testimony of Dr. Brodner was presented by deposition. GSH also presented the following exhibits, each of which was accepted into evidence: Exhibits 1-2, 6, 10-11, 13, 16-19, 23-25, 27, and 29-

   34.

   
   

   On February 1, 1989, DHRS issued PDRL Letter Policy No. 02-89 (letter policy), which purports to discuss the requirements of Section 395.0142, Florida Statutes, and which is the subject of the rules challenge in Case No. 89-4878R. DHRS relied, in part, on the letter policy in determining whether to file an administrative complaint against GSH. There is, however, no allegation that GSH violated the policy letter as a rule. DHRS attempts to explicate its position in this proceeding based on the statutes involved and based on its interpretation of those statutes.

   
   

   One transcript of the consolidated hearing has been filed. While certain exhibits relate to both cases, only one of each exhibit was filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FAC

   
   

   1. Petitioner, Good Samaritan Hospital (GSH), is a hospital with emergency room services located in West Palm Beach, Florida. At the times pertinent to this proceeding GSH was a 342-bed general acute care hospital licensed under Chapter 395, Florida Statutes, and accredited by the Joint Commission for Accreditation of Health Care Organizations. GSH's emergency department is not a licensed trauma center. Respondent, Department of Health and Rehabilitative Services (DHRS), is the designated state agency responsible for the regulation of hospitals pursuant to Chapter 395, Florida Statutes.

      
      

   2. The following findings of fact are based, in part, on the stipulation of the parties:

      
      

      1. As it relates to the incident which is the subject matter of this action, GSH provided medical screening, examination, and evaluation by a physician, or, to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition existed.

      2. As it relates to the incident which is the subject of this action, GSH's actions were not based upon, or affected by, the subject patient's race, ethnicity, religion, national origin, citizenship, age, sex, preexisting medical condition, physical or mental handicap, or insurance status, except to the extent that a circumstance such as age, sex, preexisting medical condition, or physical or mental handicap was

         medically significant to the provision of appropriate medical care to the patient.

      3. As it relates to the incident which is the subject of this action, GSH rendered emergency services and care to the subject patient without first questioning her or any other person as to her ability to pay therefor.

      4. As of the date of the incident which is the subject of this case, DHRS had not notified GSH of any rule or policy interpreting Sections 395.0142, 395.0143, and 401.45, Florida Statutes.

      5. As of the date of the incident which is the subject of this case no rule existed which stated a specific requirement that hospitals which provide neurosurgery in their emergency rooms must staff or provide on-call neurosurgery services on a continuous basis, i.e., twenty-four (24) hours a day, 365 days per year.

      6. No rule, promulgated pursuant to Section 120.54, Florida Statutes, currently exists which interprets Sections 395.0142, 395.0143, and 401.45, Florida Statutes.

      7. The incident from which the Administrative Complaint arose in this case occurred on November 30, 1988.

         
         

   3. Miriam Rivera, a female approximately 40 years of age, was struck by an automobile at 7:34 p.m. on November 30, 1988. Ms. Rivera received severe injuries which proved to be fatal. The West Palm Beach Fire Department Emergency Medical Services (WPBFDEMS) arrived at the scene of the accident at approximately 7:41 p.m. They found Ms. Rivera lying unconscious with obvious external injuries and an apparent internal head injury.

      
      

   4. The protocol of the WPBFDEMS, which had been approved by DHRS and which was known to GSH, required that trauma patients be transported to the hospital with an emergency department that is closest to the scene of the accident. Consistent with this protocol, the WPBFDEMS began transporting Ms. Rivera to GSH at approximately 7:50 p.m.

      
      

   5. Emergency Medical Services of Palm Beach County (EMS-PBC) is a service of the Palm Beach County government that is responsible for coordinating the provision of emergency medical services by the different ambulance services and other providers in Palm Beach County through its medical communication (Medcom) system. EMS-PBC had, prior to the incident of November 30, 1988, been working with the hospitals in Palm Beach County, including GSH, to devise a "status board" system to be used in deciding to which of the 15 hospitals in Palm Beach County a person needing emergency medical services would be transported. The status board contains the name of each of the hospitals in Palm Beach County with a space to indicate when a particular hospital will not be providing coverage for one or more of the following specialties: neurosurgery, thoracic surgery, obstetrics, and pediatrics. This system was a reasonable response to problems associated with the scheduled unavailability at hospital emergency rooms of speciality services, such as neurosurgery. Such gaps in specialty coverage in emergency rooms was a problem in Palm Beach County and throughout Florida. By letter dated November 8, 1988, GSH had advised John Udell, Director of the Emergency Medical Services of Palm Beach County (EMS-PBC) that GSH would not have thoracic surgery or neurosurgical emergency room coverage for November 27, 1988, through December 3, 1988, and between December 25, 1988, through

      December 31, 1988. Prior to November 30, 1988, Mr. Udell had relayed to Medcom the information contained in GSH's letter of November 8, 1988. While the status board was physically in place at Medcom on November 30, 1988, and could have been used by Medcom to determine that GSH did not have neurosurgery coverage available at its emergency room that night, the status board system was not used because the system was not scheduled to go into effect until 8:00 a.m. on December 1, 1988.

      
      

   6. At 7:52 p.m., WPBFDEMS advised GSH as to Ms. Rivera's condition and that they were bringing her in. GSH emergency room personnel advised WPBFDEMS that GSH did not have coverage in its emergency room by a neurosurgeon. Dr. Michael Mattice, GSH emergency room physician, when advised of Ms. Rivera's impending arrival, informed WPBFDEMS: "... Would definitely advise you we have no neurosurgery coverage and will definitely delay this patient's care. "

      Despite that advice, WPBFDEMS transported Ms. Rivera to GSH and she was received as a patient at GSH at 7:58 p.m.

      
      

   7. Ms. Rivera was in a deep coma and in very poor condition when she arrived at GSH. Her right pupil was fixed and dilated, which indicates that her brain stem was compromised. She had multiple injuries, the most serious being the injury to her brain. In addition, she had pelvic, facial and basilar skull fractures. Her blood pressure was abnormally low and she was having respiratory problems and difficulty getting oxygen to her brain. Her prognosis was poor.

      By 8:20 p.m., both of Ms. Rivera's pupils were fixed and dilated, which is indicative of a dysfunction of the third cranial nerve caused by pressure from swelling of the brain. Fixed and dilated eyes are indicative of severe brain injury.

      
      

   8. The Glascow Coma Scale (GCS) is a method whereby a brain-injured patient can be evaluated immediately after the injury by a wide spectrum of medical personnel. The GCS is designed to be reproducible and simple to use. The GCS scores range from 15, which is normal, to 3, which is brain death. The WPBFDEMS determined that Ms. Rivera's GCS was eight at the scene of the accident. Upon admission to GSH, her GCS was a seven. By 8:20 p.m., her GCS was a five. At 9:15 p.m. her GCS had dropped to three and remained there for the rest of her stay at GSH.

      
      

   9. GSH performed appropriate testing to determine Ms. Rivera's condition. CAT scan testing revealed a right cerebral swelling, consistent with a diffuse cerebral contusion, a shift of midline structures from right side to left side, with compression and effacement of the right lateral ventricle. Also revealed were very small punctate hemorrhages throughout the brain, but there was no discrete or distinct blood clot that could be evacuated. The CAT scan also revealed that the basal cisterns were totally obliterated.

      
      

   10. Coagulation profile testing revealed that Ms. Rivera had a condition known as disseminated intervascular coagulopathy (DIC). DIC, also known as fibrinolysis, resulted in a failure of her blood to clot.

       
       

   11. GSH had, at the time of the incident, four neurosurgeons on its staff, one of whom was not available for emergency room duty because of his seniority. The other three neurosurgeons were generally available for emergency room duty, but they did not attempt to provide continuous neurosurgical coverage for GSH's emergency room. There were periods of time, such as the evening of November 30, 1988, when none of the neurosurgeons on the staff of GSH were scheduled to be available for service at the GSH emergency room.

   12. There was a conflict in the testimony as to whether the services of a neurosurgeon would have benefitted Ms. Rivera. Expert testimony on behalf of DHRS was that Ms. Rivera could have survived with appropriate neurosurgical intervention, such as inserting a cerebral bolt to manage the pressure in and on the brain. Expert witnesses on behalf of GSH testified that such a surgical procedure was contraindicated because of the diffuse swelling in her brain that would not have been relieved by surgery, her unstable condition, and the inability of her blood to clot. This conflict is resolved by finding that Ms. Rivera received appropriate emergency care and treatment by the emergency room personnel of GSH, including optimal management from a neurosurgical viewpoint, from the time she was received at GSH to the time she was transported to Humana Hospital. Even if a neurosurgeon had been present, he or she could have done nothing more to have benefitted Ms. Rivera than was done by Dr. Mattice and the other members of the GSH emergency room staff. Unfortunately, Ms. Rivera's injuries were too severe for her to have survived.

       
       

   13. GSH made repeated attempts from the time it learned that Ms. Rivera was being transported to GSH to have her transferred to a facility with a neurosurgeon available. On the evening of November 30, 1988, the following hospitals had available emergency neurosurgical coverage: Palm Beach Gardens Medical Center (Palm Beach Gardens), JFK Memorial Hospital, and Humana Hospital of the Palm Beaches (Humana Hospital). Each of these hospitals was contacted by GSH, and continuous efforts were made by GSH personnel to have Ms. Rivera transferred. Despite these repeated attempts to have her transferred and to locate one of its staff neurosurgeons, GSH continued to provide her with appropriate care and treatment. Ultimately, Ms. Rivera was transported to Humana Hospital around midnight. Dr. Robert A. Brodner, a neurosurgeon on the staff of GSH and Humana Hospital examined Ms. Rivera at Humana Hospital at 12:30

       a.m. on December 1, 1988, and confirmed that she was brain dead. It is likely that she was brain dead by 10:00 p.m. on November 30, 1988.

       
       

   14. By letter dated December 1, 1988, Melville "Chip" Harris, a vice- president of GSH and the administrator on call on November 30, 1988, wrote a letter to Ms. Connie Cheren, complaining about the difficulty he had in attempting to transfer Ms. Rivera to Palm Beach Gardens Hospital, a hospital that had neurological emergency coverage. This letter was intended to be a complaint against Palm Beach Gardens, not against GSH. Nevertheless, DHRS classified Mr. Harris' letter as a complaint against GSH and used this letter as its justification to investigate GSH's treatment of Ms. Rivera.

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

       
       

   16. DHRS has charged GSH with violating Sections 395.0142, 395.0143, and 401.45, Florida Statutes.

       
       

   17. Section 395.0142, Florida Statutes, provides, in pertinent part, as follows:

       
       

       1. LEGISLATIVE INTENT. -- The Legislature finds and declares it to be of vital importance that emergency services and care be provided by hospitals to every person in need of such care. The Legislature finds that persons have been denied emergency services and care by hospitals. It is the intent of the Legislature

          that the department vigorously enforce the ability of persons to receive emergency services and care and that the department act in a thorough and timely manner against hospitals which deny persons emergency services and care.

       2. DEFINITIONS. -- As used in this section:

          * * *

          (b) "Department" means the Department of Health and Rehabilitative Services.

          * * *

          1. "Emergency services and care" means medical screening, examination, and evaluation by a physician, or to the extent permitted by applicable law, by other appropriate personnel under the supervision of a physician, to determine if an emergency medical condition or active labor exists and, if it does, the care, treatment, or surgery by a physician necessary to relieve or eliminate the emergency medical condition, within the service capability of the facility.

          2. "Stabilized" means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from the transfer of the patient from a hospital.

       3. EMERGENCY SERVICES; DISCRIMINATION; LIABILITY OF FACILITY OR HEALTH CARE PERSONNEL.

          1. Every hospital which has an emergency department shall provide emergency services and care for any emergency medical condition or for active labor when:

       * * *

       1. Emergency services and care are requested on behalf of a person by:

          1. An emergency medical services provider who is rendering care to or transporting the person ...

       * * *

       (c) Neither the hospital nor its employees, nor any physician ... shall be liable in any action arising out of a refusal to render emergency services or care if the refusal is based on the determination, exercising reasonable care, that ... the hospital does not have the appropriate facilities or qualified personnel available to render those services.

       
       

   18. The provisions of Section 395.0143, Florida Statutes, provides as follows:

       
       

       No general hospital licensed under this part, and no specialty hospital with an emergency room, shall deny any person treatment for any emergency medical condition which will deteriorate from a failure to provide such treatment. A hospital or its employees, or any physician or dentist, responding to an apparent need for emergency treatment pursuant to this section shall not be held liable in any action arising out of a refusal to render emergency treatment or care if reasonable care is exercised in determining the condition of the person and in determining the

       appropriateness of the facilities and the qualifications and availability of personnel to render such treatment.

       
       

   19. Section 401.45, Florida Statutes, provides as follows:

       
       

       1. No person shall be denied treatment for any emergency medical condition which will deteriorate from a failure to provide such treatment at any general hospital that has an emergency room.

       2. A hospital or its employees or any physician or dentist responding to an apparent need for emergency treatment pursuant to this section shall not be held liable in any action arising out of a refusal to render emergency treatment or care if reasonable care is exercised in determining the condition of the person and in determining the appropriateness of the facilities and the qualifications and availability of personnel to render such treatment.

       
       

   20. DHRS asserts that the foregoing statutes require that a hospital that provides a given specialty service, such as neurosurgery, arrange 24-hour a day, seven day a week coverage for that service, either by providing the coverage itself or by entering advance transfer agreements obligating other hospitals to accept transfer of such patients before the emergency occurs. DHRS contends that such arrangements are part of a "reasonable emergency care plan" that is contemplated by the statutory requirement that the hospital exercise reasonable care to determine that it does not have the appropriate facilities or qualified personnel available to render specialty services that may be required by an emergency. As commendable as its goal may be, the position asserted by DHRS should be rejected as being not based on a validly adopted rule or on a reasonable interpretation of the pertinent statutes.

       
       

   21. The construction of these statutes urged by DHRS is rejected as being clearly erroneous. Section 395.0142(2)(d), Florida Statutes, requires the provision of "emergency services and care" only to the extent that such services and care are "within the service capability of the facility". This does not, as urged by DHRS, require 24 hour per day coverage of all specialties offered by the hospital. Section 395.0142(3)(c), Florida Statutes, provides that the hospital shall not be liable "... in any action arising out of a refusal to render emergency services or care if the refusal is based on the determination, exercising reasonable care, that ... the hospital does not have the appropriate facilities or qualified personnel available to render those services." The last sentences of Section 395.0143, and 401.45, Florida Statutes, are worded similarly to the language of Section 395.0142(3)(c), Florida Statutes.

       
       

   22. Each of the statutes that GSH is accused of violating requires the hospital to exercise reasonable care to determine the appropriateness of the facilities and the qualifications and availability of personnel to rendered services. There has been no showing in this proceeding that GSH failed to exercise reasonable care in determining that it did not have a neurosurgeon available to render services to Ms. Rivera. DHRS' interpretation of the statutory scheme is an attempt to write into the law requirements that are not expressly or impliedly contained therein.

   23. If the patient requires care beyond the hospital's capability, the provisions of Section 395.0144, Florida Statutes, which GSH was not charged with violating, regulates its conduct, and provides, as follows:

       
       

       Effective January 1, 1987, any hospital, as defined in

       1. 395.002(4), which operates a full-time emergency room service shall, upon determination by a licensed hospital physician that a person seeking emergency services shall be admitted, admit such person and shall not refuse to admit such person on the basis of economic criteria or indigency. If, in the medical judgment of the licensed hospital physician responsible for emergency room services, the hospital is unable to render appropriate treatment, thereby necessitating transfer of the patient, the hospital where the patient has presented himself shall:

          1. Within its capabilities, render such emergency services as the circumstances require, which services shall be provided within the scope of generally accepted practices.

          2. Contact an appropriate receiving hospital and notify such hospital that the patient is in transit.

          3. Arrange suitable transportation for the patient, if necessary.

          4. Send to the receiving hospital any available information on the patient's history and condition. However, no such transfer shall be authorized until the physician considers the patient sufficiently stabilized for transport.

       
       

   24. GSH complied with of the provisions of Section 395.0144, Florida Statutes, in receiving Ms. Rivera, in providing care and treatment to her, in attempting to transfer her, and in finally transferring her to Humana Hospital.

       
       

   25. The Administrative Complaint in this proceeding is bottomed on the contention that Ms. Rivera was not provided emergency medical services that she required to survive while at GSH. This contention is contrary to the findings made, and, for that reason, the Administrative Complaint should be dismissed. Moreover, the Administrative Complaint should be dismissed because the standards DHRS is attempting to enforce are not expressly or impliedly required by Sections 395.0142, 395.0143, or 401.45, Florida Statutes, or by any validly adopted rule.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the

administrative complaint filed against Good Samaritan Hospital.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 31st day of October, 1990.

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1990.

APPENDIX TO THE RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1-2, 4, 8, and 10 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order and are rejected in part as being contrary to the findings made.

3. The proposed findings of fact in the first sentence of paragraph 5 are adopted in material part by the Recommended Order. The proposed findings of fact in the second sentence of paragraph 5 are rejected as being an erroneous conclusion.

4. The proposed findings of fact in paragraph 6 are rejected as being unnecessary to the conclusions reached and as being vague.

5. The proposed findings of fact in paragraph 7 are rejected as being unnecessary to the conclusions reached.

6. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached and for failure to comply with the provisions of Rule 22I-6.031(3), Florida Administrative Code.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 3-17, 19-23, 27-36, and 38-40 are adopted in material part by the Recommended Order. Those findings of fact not adopted are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached.

2. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached and is treated as a preliminary matter.

3. The proposed findings of fact in paragraphs 18 and 24-25 are rejected as being subordinate to the findings made.

4. The proposed findings of fact in paragraphs 26, 37, and 41-47 are rejected as being unnecessary to the conclusions reached.

COPIES FURNISHED:

Darrell White, Esquire William B. Wiley, Esquire McFarlain, Sternstein,

Wiley & Cassedy

First Florida Bank Building Suite 600

Post Office Box 2174 Tallahassee, Florida 32316-2174

John Rodriguez, Esquire Terry Meek, Esquire 1317 Winewood Boulevard Building One, Room 304

Tallahassee, Florida 32399-0700

James A. Farrell, Esquire Good Samaritan Hospital

P.O. Box 3166

West Palm Beach, Florida 33402

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Linda K. Harris General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner, DOAH CASE NO.: 89-3687

vs.

GOOD SAMARITAN HOSPITAL,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS FILED BY THE DEPARTMENT

Counsel excepts to the Hearing Officer's conclusion that the department has unreasonably interpreted the statutes governing emergency room care by requiring continuous emergency room coverage for all specialty services offered by a hospital. The challenged conclusion is unnecessary to the disposition and is rejected.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the ruling on exceptions. On the basis of the Hearing Officer's finding that Ms.

Rivera received appropriate emergency care at Good Samaritan Hospital (See findings of fact 12 and conclusions of law 11), I conclude that Good Samaritan Hospital was shown to be not guilty of violating any statutory or rule requirement.

Based upon the foregoing, it is

ADJUDGED, that the administrative complaint be DISMISSED WITH PREJUDICE.

DONE and ORDERED this 16th day of 1991, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by Deputy Secretary for Programs

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

COPIES FURNISHED:

James A. Farrell, Esquire Teresa Nugent

Good Samaritan Hospital 315 S. Calhoun

Post Office Box 3166 Suite 808

West Palm Beach, FL 33402-3166 Tallahassee, Fla 32301

H. Darrell White, Esquire William B. Wiley, Esquire McFARLAIN, STERNSTEIN, WILEY & CASSEDY, P. A.

First Florida Bank Building Suite 600

Tallahassee, FL 32301

Claude B. Arrington Hearing Officer

DOAH, The DeSoto Building 1230 Apalachee Parkway

Tallahassee, FL 32399-1550

John Rodriguez, Esquire Interprogram & Development

Technical Assistance Office Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 104 Tallahassee, FL 32399-0700

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 22nd day of January 1991.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 89-003687

Orders for Case No: 89-003687