STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMENDMENT TO FINAL ORDER FOLLOWING REMAND

The Final Order entered in the above-styled case on July 30, 2008, was appealed to the District Court of Appeal, Second District, State of Florida.

By Order of April 21, 2010, the Second District Court of Appeal withdrew its Opinion of December 30, 2009, and substituted its Opinion of April 21, 2010. Therein, the Second District Court of Appeal concluded that the Administrative Law Judge erred when he determined that Nurse Hilderbrandt was not a participating physician under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan) but that he had correctly ruled that the hospital [Tarpon Springs Hospital Foundation, Inc., d/b/a Helen Ellis Memorial Hospital] failed to comply with the notice provisions of the Plan. Accordingly, the court affirmed in part, reversed in part, and remanded with instructions to modify the final order consistent with its opinion at 34 So. 3d 742 (Fla. 2d DCA 2010).

On June 16, 2010, the court issued its Mandate that, ". . . such further proceedings be had in said cause, if required, in accordance with the opinion of this court . . . and with the rules of procedure and laws of the State of Florida."

In accordance with the court's Opinion and Mandate, it is ORDERED that:

1. Paragraph 73 of the Final Order is struck, and the following paragraph is adopted in its stead:

   CNM Hilderbrandt demonstrated that she would be supervised by a participating physician, who would be easily available, and that there existed "a prearranged plan of treatment for specified patient problems

   which the supervised certified nurse midwife may carry out in the absence of any complicating features," as required by section 766.314(4)(c), Florida Statutes, thereby establishing that CNM Hilderbrandt was a "participating physician" at the time of Sam's birth.26

   
   

2. Endnote 26 remains unchanged from endnote 26 in the July 30, 2008, Final Order.

3. Paragraph 79 is struck, and the following paragraph is adopted in its stead:

   In this case, it has been established that the physician who provided obstetrical services at Sam's birth was a "participating physician" and that Sam suffered a "birth- related neurological injury." Consequently, Sam qualifies for coverage under the Plan, and Petitioners are entitled to an award of compensation. §§ 766.309 and 766.31, Fla.

   Stat. However, in this case, the issues of compensability and notice and issues related to an award were bifurcated.

   
   

4. The provisions in the Conclusion of the Final Order are vacated, and the following paragraphs are substituted therefor:

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the claim for compensation filed by Allison Anderson and Timothy Anderson, individually, and as parents and natural guardians of Samuel J. Anderson, a minor, be and the same is hereby approved.

It is FURTHER ORDERED that Helen Ellis Memorial Hospital failed to comply with the notice provisions of the Plan.

It is FURTHER ORDERED that the participating physicians (including CNM Hilderbrandt)

complied with the notice provisions of the Plan.

It is FURTHER ORDERED that Petitioners having heretofore filed a Notice of Rejection of NICA Benefits, no further proceedings before the Division of Administrative Hearings are necessary, and the file of the Division of Administrative Hearings is hereby closed.

DONE AND ORDERED this 21st day of January, 2011, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2011.

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9912)

Robert J. Grace, Jr., Esquire Stiles, Taylor & Grace, P.A. Post Office Box 460

Tampa, Florida 33601

(Certified Mail No. 7010 1670 0000 3105 9929)

James W. Gustafson, Esquire

Searcy, Denney, Scarola, Barnhart & Shipley P.A.

517 North Calhoun Street Tallahassee, Florida 32301

(Certified Mail No. 7010 1670 0000 3105 9936)

G. Bruce Hill, Esquire

Hill, Adams, Hall & Schieffelin, P.A. Post Office Box 1090

Winter Park, Florida 32790

(Certified Mail No. 7010 1670 0000 3105 9943)

Mindy McLaughlin, Esquire Burton, Beytin & McLaughlin

201 North Franklin Street, Suite 2900 Tampa, Florida 33602

(Certified Mail No. 7010 1670 0000 3105 9950)

Amy Rice, Acting Investigation Manager Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

(Certified Mail No. 7010 1670 0000 3105 9967)

Elizabeth Dudek, Deputy Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 1670 0000 3105 9974)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 07-003250N

Orders for Case No: 07-003250N