The Issue The issue is whether, under the Florida Retirement System, Petitioner occupied a regularly established position while working as a pool respiratory therapy technician at Jackson Memorial Hospital for 12 years.
Findings Of Fact Petitioner is a certified respiratory therapy technician. Her first job as a respiratory therapy technician was at Mercy Hospital in Miami. Later, she worked at Coral Gables Hospital in a similar capacity. In May or June 1991, Petitioner began working at Jackson Memorial Hospital. She and Jackson Memorial Hospital executed a Respiratory Pool Contract for Therapists and Technicians. The contract referred to Petitioner as a "per-diem employee." The term of the contract was from May 28, 1991, through October 31, 1991, subject to renewal, but the parties never renewed the contract in writing. After listing the benefits in the section addressing compensation, the contract provided: "[Jackson Memorial Hospital] participates in the State Retirement System after four months of continuous employment." The reference to the "State Retirement System" is to the Florida Retirement System (FRS), in which Jackson Memorial Hospital participated at all times material to this case. The contract required Petitioner to work at least two shifts per pay period and to notify her supervisor by the tenth day of the month as to the days and hours that she will be available to work during the following month. The contract stated that either party may cancel a scheduled work shift, but only on at least two hours' notice to the other party. The contract provided that Jackson Memorial Hospital may terminate the contract without case on 14 days' notice. The contract provided that Jackson Memorial Hospital "shall exercise exclusive control and/or direction over the method and matter by which [Petitioner] performs [her] professional services and functions to the extent permitted by law." The contract subjected Petitioner to the supervision of her supervisor and required that she conform to all rules and policies of Jackson Memorial Hospital, including its "Standards of Excellence," dress code, and personnel policies. During her employment with Jackson Memorial Hospital, Petitioner has received training, including directions to follow a strict script while interacting with patients in their rooms. Immediately upon commencing employment with Jackson Memorial Hospital, Petitioner and her supervisor agreed that, unless Petitioner notified her supervisor to the contrary by the tenth of the preceding month, Petitioner would work a specific shift for 40 hours per week from Tuesday through Saturday during each week of the month. This agreement remained in effect until two or three years ago, when Petitioner and her supervisor agreed that Petitioner would work only Sunday and Monday each week, unless Petitioner notified the supervisor to the contrary by the tenth of the preceding month. From 1991 through the present, Petitioner has suffered no breaks in employment, meaning that she always has worked for at least part of each calendar month. In almost every month, she worked for at least very substantial parts of the month. She reported to work despite the birth of grandchildren and hurricanes. Perhaps four or five times each year, Jackson Memorial Hospital would not have enough work to warrant Petitioner's presence. Routinely, Petitioner's supervisor asked her to work a double shift because the hospital had too much work relative to available staff. During her 12-year career with Jackson Memorial Hospital, Petitioner has received numerous commendations for outstanding professional performance from her employer. From 1991 through the present, Petitioner has worked as a respiratory therapy technician only at Jackson Memorial Hospital. During this time, Petitioner has earned about 20 percent more than respiratory therapy technicians who are not in the pool. However, the record provides no basis to infer that this differential reflects the market value of the retirement contributions that the employer is making on behalf of the non- pool employees. These non-pool employees also enjoy other benefits not extended to pool employees, such as health, life, and dental insurance, paid holiday and sick leave, overtime for more than 40 hours' work per week, and flexible benefit plans for medical and dependent child care expenses. Jackson Memorial Hospital made FRS contributions for Petitioner for January 1992, June and July 1994, June 1995, and September 1995. Jackson Memorial Hospital has deducted Social Security contributions and federal income tax withholding from every paycheck that it has given to Petitioner. Although Petitioner's W-2 forms for 1991-93 were unavailable, her W-2 forms for 1994-96 showed that she participated in a pension plan. The remaining forms were illegible or showed no pension plan. The only reason that Petitioner could not leave the pool of respiratory therapy technicians, as she requested to do three times, was that she was not certified by the National Board of Respiratory Care. Respondent has not questioned that Petitioner is an employee, rather than an independent contractor. Jackson Memorial Hospital has treated her as an employee in taking contributions and withholding from Petitioner's paychecks. Respondent has adopted a rule, set forth in the Conclusions of Law, setting forth the guidelines to determine whether an individual is an employee or independent contractor. Petitioner satisfies each of the 20 tests, indicating that she is an employee, not an independent contractor. Overall, Petitioner is clearly subject to the close control of her employer, which has even scripted her conversations with patients. Among the specific tests, Jackson Memorial Hospital has trained Petitioner and integrated her technical services into the professional services delivered to its patients. Petitioner has delivered her services personally to Jackson Memorial Hospital's patients, has had a continuing relationship with her employer over 12 years, works set hours agreed upon in advance by her employer, works fulltime exclusively for Jackson Memorial Hospital, works on the employer's premises, uses the tools and material provided by her employer, works for a wage rather than a profit expectancy, does not offer her services to the general public, may quit at anytime, and is subject to firing at anytime. The real issue in this case goes to the special emphasis that Respondent's rules give to one of the tests of an independent contractor: the continuing relationship. In the language of the rule, which is discussed in the Conclusions of Law, the question is whether Petitioner has been filling a temporary position. The specific rule provision applicable to this case requires a factual determination of whether she occupies an "on call position," which is by definition a temporary position ineligible for FRS coverage because it is not a regularly established position. An "on call position" is a position filled by an employee who is "called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied." Twelve years' experience teaches that Petitioner was not called to work unexpectedly. Early each month, Petitioner and her employer agreed upon her work schedule for the following month. Rarely did her employer cancel a shift of Petitioner. Occasionally, the employer needed Petitioner to remain at work past her scheduled shift. But neither of these situations occurred with such frequency as to undermine the finding that Jackson Memorial Hospital scheduled Petitioner's work schedule well in advance, and, each month for 12 years, Petitioner performed her job in strict accordance with this schedule. The two remaining elements of the rule defining "on call positions" also do not apply to this case. Petitioner did not work "brief periods." She has worked day after day, week after week, year after year, for 12 years. The word "brief" does not apply to any aspect of her employment career with Jackson Memorial Hospital. Nor has her employment "cease[d]" at anytime during these 12 years.
Recommendation It is RECOMMENDED that the Division of Retirement enter a final order determining that, following the sixth consecutive calendar month after the commencement of employment at Jackson Memorial Hospital in 1991, Petitioner has been employed in a regularly established position under the Florida Retirement System. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Mel Correa Qualified Representative c/o Nora H. Correa 8350 Northwest 168th Street Miami Lakes, Florida 33016-3467 Thomas E. Wright Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") regarding Certificate of Need (“CON”) Application No. 10198, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. The Agency preliminarily approved the application. 1. On December 10, 2013, the Agency published notice of its preliminary decision to approve CON Application 10198, submitted by Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. 2. On December 30, 2013, Memorial Healthcare Group, Inc. d/b/a Memorial Hospital Jacksonville (“Memorial”), timely filed a petition for formal administrative hearing to contest the preliminary approval of CON Application 10198. 3. The matter was referred to the Division of Administrative Hearings (DOAH), where it was assigned Case No. 14-0123CON. Filed July 21, 2014 1:02 PM Division of Administrative Hearings 4. On July 3, 2014, Memorial filed a Notice of Voluntary Dismissal. 5. On July 7, 2014, the DOAH issued an Order Closing File and Relinquishing Jurisdiction to the Agency. It is therefore ORDERED: 6. The Agency’s preliminary decision to approve CON Application No. 10198 is UPHELD subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this f x day of eeley , 2014. Elizabeth Agency for Health Care Administration
Other Judicial Opinions 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 AHCA, 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 of 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. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below- BE 45 named persons by the method designated on this SL K day of a , 2014. —4 : FS Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration Lorraine. Novak@ahca.myflorida.com (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) Seann M. Frazier, Esquire Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 Sfrazier@phrd.com Jlr@phrd.com (Electronic Mail) Karl David Acuff, Esquire Law Offices of Karl David Acuff 1615 Village Square Blvd., Suite 2 Tallahassee, Florida 32309-2770 Kdacuff@fioridacourts.com (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration James.McLemore@ahca.myflorida.com (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration Marisol. Fitch@ahca.myflorida.com (Electronic Mail)
The Issue The issues for determination in this case are whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint, specifically for: 1) Respondent's failure to meet the acceptable standard of care for psychiatry in not immediately admitting patient J.R. to an intensive in-patient care facility; 2) Respondent's failure to justify his failure to admit patient J.R. to an intensive in-patient care facility; and 3) Respondent's failure to maintain records which state why patient J.R. was not admitted to an intensive in-patient care facility.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Ashok M. Patel, M.D., is and at all material times was, a physician licensed to practice medicine in Florida, having been issued license number ME 0066214. Respondent practices psychiatry in Largo, Florida. Respondent is board certified in psychiatry. On July 31, 1996, Patient J.R. was referred for an appointment to Respondent by Professional Psychological Services (hereinafter PPS), a mental health care provider with which Respondent was contractually affiliated. At this time J.R. was a 44-year-old white male who was employed as a paramedic, and later as a firefighter for the City of Clearwater. J.R. had worked in this capacity for over 19 years. J.R. was happily married to P.R. for more than 11 years. The couple had no children. In the weeks preceding his appointment with Respondent, J.R. was experiencing severe depression. The primary basis of J.R.'s depression was chronic health problems. J.R. had a history of back problems which began in 1980. He had back surgery in 1989, and suffered from psoriatic arthritis in his back which adversely affected his ability to function effectively as a paramedic and later as a firefighter. In July of 1996, J.R. had the job of driver of the firetruck. In July of 1996, J.R. was under the care of his primary physician Dr. Mark Smitherman, as well as a rheumatolgist, Dr. Adam Rosen, who prescribed medicine for J.R.'s chronic pain. On July 22, 1996, during an appointment with Dr. Smitherman, J.R. expressed his feelings of depression. Dr. Smitherman suggested that J.R. contact PPS, the psychological services provider of J.R.’s employment insurance plan. An appointment with PPS was thereafter scheduled for July 31, 1996. J.R. also had previously expressed his feelings of depression to Dr. Rosen who had prescribed Serzone, an anti-depressant for J.R. J.R. went to work at the firehouse on Monday, July 29, 1996. At some time during the evening while the other firefighters were asleep, J.R. removed a defibrillator from the firetruck, went to a private room, and used the defibrillator on himself in an unsuccessful attempt to commit suicide. The following morning of Tuesday, July 30, 1996, J.R. returned home at approximately 8:00 a.m., and telephoned his wife, P.R., who was already at work. J.R. informed his wife of his suicide attempt. P.R. immediately went home and called PPS, explained the circumstances, and requested an earlier appointment. Arrangements were made with PPS to reschedule J.R. from his existing appointment on Wednesday, July 31, 1996, to an appointment July 30, 1996, at 7:00 p.m. Later that day, the appointment was moved up to 5:00 p.m. When J.R. and his wife arrived at PPS they met with Betti Pate, a licensed mental health counselor employed by PPS. During the course of her evaluation, Betti Pate noted that J.R. was severely depressed with a suicide attempt within the previous 24 hours. Ms. Pate in her care plan for J.R. identified three problems, depression, fear of being left alone, and suicidal ideation. Under intervention, she noted, "prevent suicide, daily observation." Betti Pate’s note to her supervisor stated that J.R. was fearful, very depressed and negative. She also noted that J.R. was "afraid he’ll try again if alone." After Betti Pate’s evaluation on July 30, 1996, her supervisors at PPS recommended that J.R. enter a Partial Hospitalization Program (PHP) at Charter Behavioral Health System of Medfield Hospital (Charter). The PHP at Charter was a mental health counseling program which was conducted during the day at the hospital. The primary focus of the Charter PHP was mental health therapy provided in group settings with licensed mental health counselors. The care plan for J.R. was to provide partial hospitalization at Charter during the day while his wife was at work. J.R. would then return home to his wife in the evening. Under this arrangement J.R. would not be alone for extended periods of time. Admission to the PHP at Charter required the concurrence of an admitting psychiatrist. Because the other psychiatrists employed by PPS were unavailable, an appointment was made for J.R. to be evaluated by Respondent who, although in private practice, had an affiliate agreement with PPS to render mental health services to referred patients. PPS made an appointment for J.R. to see Respondent on Wednesday, July 31, 1996, at 4:00 p.m. It was common and usual practice for PPS to refer patients to Respondent for evaluation prior to admission to PHP, as well as for evaluation of a patient’s medications. J.R. went alone to his appointment with Respondent. Prior to seeing Respondent, J.R. completed a patient information document. J.R. described his reason for visit as "mental health & coping problem." He circled the following problems which pertained to him: nervousness, anxiety, insomnia, stress, headaches, overwhelmed, obsessive thoughts, compulsive behavior, depression, loneliness, fears, suicidal thoughts, concentration, appetite changes, helpless/hopeless, low energy, sexual problems, impulsive behavior, medical problems, and physical pain. J.R. listed the medications he was taking as Serzone 150 mg (10 day), Lortab 7.5/500, Robaxin 750 mg. J.R. indicated that he had not received prior psychiatric treatment. After completion of the patient information document, J.R. was seen by Respondent. Respondent observed that J.R. was casually dressed and not dishelveled, was articulate, made eye contact, was appropriately aware of time and place, and able to communicate effectively. Respondent asked J.R. the nature of the problem that had brought J.R. to him. Respondent then conducted a medical history, a family history, and a history of the problems leading to the visit to Respondent. In the course of his evaluation of J.R., Respondent completed a clinical assessment form which included a DSMIV diagnosis. According to Respondent’s records J.R. stated as "chief complaint" that "I was referred by PPS." In history of present illness, Respondent notes that: "Patient is 44 year-old white male came in complaining of chronic back pain, decreased sleep agitation, irritability." Patient says he is feeling depressed, says he tried to kill himself using defibrillator on Monday, but says it did not work. Patient had suicidal thoughts for 1-2 weeks, but feels guilty about doing it. Says it was stupid to hurt himself. Weight loss of 14 pounds in two and one-half months, decreased appetite. No SI(suicial ideation)/ No HI(homicidal ideation)/ No AH(auditory hallucinations)/ No VH(visual hallucinations)/ No PI(paranoid ideation) at present. During the course of Respondent’s evaluation, J.R. related that he had been seen at PPS on July 30, 1996, that he had an appointment to see Betti Pate the following day, and that arrangements were being made by PPS for him to begin PHP at Charter; however, Respondent did not have J.R.’s PPS evaluation nor Betti Pate’s notes at the time of J.R.’s office visit. J.R. also related that he had a supportive wife, although Respondent did not have any personal contact with Mrs. J.R. at this time. Respondent’s evaluation of J.R. lasted over one hour. In his diagnosis Respondent determined that J.R. had major severe depression, and that J.R. presented a moderate suicide risk. In his recommendation/plan for J.R. Respondent’s notes reflect the following: "Increased Serzone 100mg two Bid; continue out-patient counseling; start Xanax 0.25 mg. 1/2-1 tid prn.; follow up in 2 weeks; and, made aware of 24 hours availability." Respondent also advised rest for 2 weeks. At this time Respondent did not know when J.R. would begin PHP at Charter. After leaving Respondent’s office J.R. went home and expressed to his wife some difficulty in understanding Respondent who is a native of India. The next day Thursday, August 1, 1996, Mrs. J.R. contacted PPS to inquire about J.R. seeing a different psychiatrist. Neither J.R. nor Mrs. J.R. contacted Respondent, and PPS did not refer J.R. to another psychiatrist. Because of J.R.’s use of the defibrillator, PPS requested medical clearance from J.R.’s primary care physician Dr. Smitherman prior to admission to PHP at Charter. On Thursday, August 1, 1996, J.R. telephoned Dr. Smitherman and received medical clearance to begin PHP at Charter. J.R. was scheduled to begin PHP at Charter on Monday August 5, 1996. J.R. received no mental health therapy or counseling from the time he left Respondent’s office on Wednesday, July 31, 1996, until Monday, August 5, 1996, when he arrived at Charter. J.R. spent some of this time doing routine shopping, errands and going to the beach where he regularly exercised by swimming. J.R. and his wife also discussed future plans together. On Monday, August 5, 1996, J.R. was admitted to PHP at Charter. At this time Charter telephoned Respondent for admission instructions for J.R., which Respondent as the attending physician gave for J.R. During the course of the day, J.R. attended group therapy sessions at Charter. The Charter records indicate that J.R. presented a flat appearance, and was not actively engaged in the therapy sessions. The following day, Tuesday August 6, 1996, J.R. had a previously scheduled appointment with his rheumotolgist, Dr. Rosen. Because of this previously scheduled appointment J.R. was allowed to miss his therapy sessions at Charter on August 6, 1996, with the understanding that he would return and continue his therapy at Charter on Wednesday August 7, 1996. On Tuesday, August 6, 1996, J.R. went to his appointment with Dr. Rosen. At some time after leaving Dr. Rosen’s office J.R. returned home and committed suicide by hanging himself in the garage where his wife found him later that day. Respondent had no contact with J.R. subsequent to July 31, 1996. Three expert witnesses in the field of psychiatry presented testimony in this matter: Dr. Martin Rosenthal; Dr. Arturo Gonzalez; and, Dr. Daniel Sprehe. All three expert witnesses concur that Respondent’s diagnosis of J.R. was correct and met the appropriate standard of care. Moreover, all three expert witnesses agree that Respondent’s prescribed medications for J.R. were correct and met the appropriate standard of care. While Drs. Gonzalez and Sprehe opined that Respondent’s treatment plan for J.R. was appropriate, Dr. Rosenthal testified that Respondent’s treatment of J.R. in "certain limited ways" did not meet the standard of care. Specifically, Dr. Rosenthal opined that even though J.R. was a moderate suicide risk, he would have hospitalized J.R. The medical literature submitted as part of the record in this case is consistent in stating that suicide in an individual patient is not a predictable event. The factors that are considered by psychiatrists in evaluating the risk of suicide are subjective to the individual patient. In order to be of imminent risk, a patient must have suicidal intent, lethal means, and opportunity. All the experts in this case agree that Respondent made the proper diagnosis of J.R., which included a finding that when Respondent saw J.R., the patient had no suicidal ideation. At the time J.R. was seen by Respondent the evidence shows not only did J.R. have no present suicidal ideation, but he also expressed regret over having made a suicide attempt, and specifically stated to Respondent that he felt stupid about trying to hurt himself. The expert evidence is supported by the medical literature, that under such circumstances the appropriate standard of care does not require immediate hospitalization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the February 3, 1998, Administrative Complaint against the Respondent, Ashok M. Patel, M.D. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. RICHARD A. HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Kristina Sutter, Esquire Agency for Health Care Administration 2727 Mahan Drive Post Office Box 14229 Tallahassee, Florida 32317 A. S. Weekley, Jr., M.D., Esquire Holland & Knight 520 Vonderburg Drive, Suite 3005 Brandon, Florida 33511 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Dr. James Howell, Secretary Department of Health Bin A00 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue On November 17, 2020, Petitioners Meghan Gibson and Jarrod Gibson, as parents and natural guardians of Oliver Gibson (Oliver), a minor, filed a Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq. (Petition) with the Division of Administrative Hearings (DOAH) for a determination of compensability under the Florida Birth-Related Neurological Injury Compensation Plan (Plan). The Petition identified Michelle Rothen, M.D., and Shawn Lee, M.D., as the physicians who provided obstetric services at the birth of Oliver on July 31, 2016, at Orlando Health, Inc., d/b/a Winnie Palmer Hospital (Winnie Palmer Hospital), located in Orange County, Florida. DOAH served Michelle Rothen, Shawn Lee, Winnie Palmer Hospital, and NICA with a copy of the Petition on December 11, 2020. On February 9, 2021, NICA filed a Notice of Non-Compensability and Request for Evidentiary Hearing on Compensability, asserting that Oliver did not sustain a “birth-related neurological injury” as that term is defined in section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to determine compensability. On February 15, 2021, the undersigned entered an Order that required the parties to confer and advise concerning the need for a hearing, if any, and if a hearing is needed, when the parties will be prepared to proceed to a hearing, the issues in dispute, the estimate of time required for hearing, and the choice of venue. On March 5, 2021, NICA filed a Response to Order Dated February 15, 2021. The Response to Order Dated February 15, 2021, noted that NICA “does not anticipate a hearing will be required in this matter[,]” and stated, in part, that “NICA has filed a Motion for Summary Final Order seeking a ruling that the claim is not ‘Compensable’ …..” Intervenors Michelle Rothen, Shawn Lee, and Women’s Care Florida, LLC, filed a Response to Order Dated February 15, 2021, which similarly noted that “a hearing will not be required in this matter” and that they will not oppose NICA’s Motion for Summary Final Order. Petitioners did not respond to the February 15, 2021, Order. On March 16, 2021, NICA filed its Motion for Summary Final Order (Motion). Petitioners have not filed a response to the Motion within the seven-day time period for a response set forth in Florida Administrative Code Rule 28-106.204(4), and, as noted above, did not respond to the undersigned’s February 15, 2021, Order.
Findings Of Fact Oliver was born on July 31, 2016, at Winnie Palmer Hospital, located in Orange County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Oliver. In a medical report dated December 24, 2020, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, labor was induced at 37 weeks for preeclampsia. Chorioamnionitis developed during labor and Cesarean delivery was done for a non- reassuring FHR pattern and failed induction. The newborn was depressed with cord blood gas pH < 7.00 However, the baby responded to resuscitation efforts and was on room air by six hours after birth. Neurologic exam was noted to be essentially normal. Head imaging studies were not done during the newborn hospital course. Brain MRI at three years of age was normal. There was likely some degree of oxygen deprivation at birth, based on the low Apgar scores and cord blood pH < 7.00. However, the baby responded to resuscitation efforts with no identifiable brain injury. Although there was an obstetrical event that resulted in some degree of oxygen deprivation to the baby during labor and delivery and possibly extending into the immediate post-delivery period, the oxygen deprivation did not result in identifiable brain injury. NICA retained Luis E. Bello-Espinosa, M.D. (Dr. Bello-Espinosa), a medical expert specializing in pediatric neurology, to examine Oliver and to review his medical records. Dr. Bello-Espinosa examined Oliver on February 5, 2021. In a medical report dated February 7, 2021, Dr. Bello- Espinosa summarized his examination of Oliver and opined, in pertinent part, as follows: Oliver is a four-year-six-month-old boy with a history of perinatal depression after birth. He had rapid recovery in the NICU. He did not need therapeutic hypothermia. He did not have symptomatic seizures or other clinical signs to indicate a perinatal hypoxic event. His neurological examination today was completely normal except for dysfluency of speech as frequently seen in children with mixed receptive-expressive language disorders. * * * Oliver does not suffer of a substantial mental or physical impairment at this time. * * * Oliver does not have mental or physical impairments. * * * In reviewing all the available documents, the evolution of [his] symptoms, there is no evidence of mental and physical impairments due to severe injury to the brain acquired due to oxygen deprivation to the brain occurring during the labor- delivery period. * * * There are no permanent substantial mental and physical impairments that occurred during birth. Considering the clinical presentation, I feel there is no[t] enough evidence to recommend Oliver be included in the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Oliver that resulted in identifiable brain injury. Dr. Willis’s opinion is credited. There are no expert opinions filed that are contrary to Dr. Bella-Espinosa’s opinion that Oliver should not be considered for inclusion in the NICA program. Dr. Bella-Espinosa’s opinion is credited. Petitioner has failed to respond to the Motion.
Findings Of Fact At all times relevant hereto Respondent was licensed as a medical doctor in Florida and was under contract with the Hillsborough Community Mental Health Center, Inc. to provide psychiatric services to the mental health center 20 hours per week. (Exhibits 1 and 14.) On October 2, 1986, Michael Burton, a Hillsborough County Deputy Sheriff received a call regarding an emergency in an isolated area on the I-75 north of Tampa. Upon his arrival he found M.H., a 21-year old white male handcuffed in the back seat of a game warden's car. A pick-up truck belonging to M.H. had a flexible hose connected to the exhaust to lead into the cab, several suicide notes and a girl's photograph were in the cab of the pick-up. Burton was told by the game warden that while conducting a routine check of the area, he had come upon M.H. attaching the flexible hose to the exhaust of the pick-up, and he arrested M.H. and called for law enforcement personnel. M.H. was transferred to Burton's car and, realizing M.H. was suicidal and consequently a danger to himself, Burton concluded M.H. should be committed and he called for a wrecker to tow away M.H.'s vehicle. M.H. did not agree to voluntary commitment and he was held for involuntary commitment. Due to the isolated location the wrecker took more than an hour to arrive on the scene. During this period Burton talked to M.H. who told Burton he was from South Dakota, he had come to Florida looking to work without success, that he hadn't bathed or eaten for a week, that he had been placed on parole in South Dakota for burglary and that in leaving the state he had violated his parole, and that life was no longer worth living. He also told Burton that although he had been stopped this time (from suicide) he wouldn't be stopped the next time. While awaiting the arrival of the wrecker Burton prepared some of HRS- MH Form 3052A (BA-52) (Exhibit 2) which is the report of law enforcement officer to justify the involuntary presentment of a client for examination to insure the client is not a danger to himself or to others. This is the procedure generally followed for patients presented by law enforcement officers pursuant to the Baker Act. Burton completed this form when he delivered M.H. to the CSU. Upon arrival of the wrecker Burton departed with M.H. who had no opportunity to speak to the driver of the wrecker. Enroute to the crisis center Burton stopped at a McDonald's restaurant where he bought a hamburger, fries and a coke for M.H. Upon arrival at the crisis center Burton delivered M.H. to the receptionist, had copies made of the suicide notes which he left with the BA-52 containing Burton's opinions regarding M.H. being a danger to himself and the observations supporting that opinion. Those observations recited: [M.H.] was found hooking a hose up to the exhaust system of his vehicle and had written suicide notes to his girl friend and mother. [M.] advised he came to Tampa from N. Dakota seeking work and has not been able to find anything. He stated he has not eaten or bathed in one week and has nothing to live for. Seemed very depressed and stated that death was the answer. [M.] has had mental health counselling in North Dakota at "Northwest Mental Health Center" involving his girlfriend committing suicide several years ago. He is also on criminal probation in N. Dakota for burglary and has violated his probation in leaving that state. Found in his possession was an article called "Near Death Experiences" that he had been reading, in which he copied an "epitaph" from. The Intake Sheet at the mental health center classified M.H. as a Baker Act patient and the Sheriff's report with suicide notes were attached to the Intake Sheet and presented to the crisis center counsellor to interview the patient and prepare the evaluation. The crisis center counsellor who interviewed M.H. and prepared the summary in exhibit 5, Kris Millrose, holds a master's degree in counselling and worked two nights per week at the crisis center. His normal procedure is to interview the client and make notes. He had available the information prepared by Deputy Sheriff Burton when he interviewed M.H. He made no effort to verify conflicts in what M.H. told him and what was contained in the Sheriff's report. He does not recall what he told Respondent during the telephone call, but he deemed it important to share with the doctor that patient had been brought in suicidal and the reasons given on the Baker Act form. He does not recall Respondent questioning him about the suicide notes but believed their existence would have been relayed to the doctor. Respondent concurred with Millrose's evaluation of M.H. and ordered him released. Millrose's evaluation recites: Pt to CSU as a 21-year old white male, unemployed, single and at large. Pt is on BA-52 via HCSO who found pt parked on state property. Pt states he had been sitting for a long time in this spot drinking beer thinking about his girlfriend in South Dakota and feeling sad over not having job and no place to live. Pt states his main concern was having very little money and no job. Patient was not aware he could go to the Salvation Army. Pt was thinking about suicide this afternoon, but adamantly denies being suicidal at present. Pt states the man who towed his truck today at the request of HCSO offered pt a job and possibly a place to stay. Pt states there is no work in South Dakota and his girlfriend just started college. Pt had been to Tampa one year ago when he decided to come back here. Pt denies trying to hook up a hose to his exhaust pipe. Pt states HCSO found him sitting in the back of his pick-up truck drinking beer. Pt states loving life and knows there is hope regardless of the notes he wrote to his mother and girlfriend. Pt does not appear a danger to himself or others at this time. He is planning on getting a job here or going back to Atlanta where he spent a day on his way to Tampa. Pt states having a little money left as he spent some last night staying in a motel. Pt requested something to eat and was given something. Following his release around 10:00 p.m., M.H. telephoned the wrecker company to see if he could pick up his vehicle and was told he would need a release from the Sheriff. M.H. then made his way across town to the lot where his truck was impounded, climbed the fence, entered his vehicle and drove it through the locked gate around 11:00 p.m. The Sheriff's office called the crisis center to obtain the name of the counsellor and doctor who authorized the release of M.H. Two days later M.H. partially decomposed body was discovered in north Pasco County in the cab of his vehicle with a hose connected to the exhaust leading to the cab. Crisis counsellors report several patients to the doctor during one telephone call. Millrose doesn't recall any specific details of his conversation except that after M.H. had been ordered released and he received the call from the Sheriff's office he again called Respondent to report the incident regarding the truck and Respondent stated patient had an antisocial personality disorder and should be put in jail. Millrose advised the Sheriff's office that M.H. should be arrested. Following four suicides by patients released from the crisis center in 1986 and 1987 it came to the attention of the public through newspaper articles and to the Department of Health and Rehabilitative Services that several individuals referred to crisis centers under Baker Act procedures had been released without adequate evaluation and had committed suicide. As a result of these inquiries Respondent's attention was recalled to the incident involving M.H. more than one year after October 2, 1986. It was at this time he first reviewed the file and actions that had been taken. This time frame is significant in evaluating Respondent's testimony. Contrary to Millrose's recollection of the specifics of his evaluation of M.H., Respondent testified that he recalls Millrose advising him that M.H. had been brought to the crisis center by a deputy sheriff when M.H. was found attempting to hook up a hose to his exhaust, but that M.H. denied that ever happened. He recalls being told by Millrose that M.H. stated he had been offered a job by the man driving the wrecker, that M.H. was neat in appearance, was not suicidal and exhibited no psychotic symptoms, that patient had some money and a supportive girlfriend. He recalls being told by Millrose that M.H. was picked up on State property drinking beer in his truck, that he had contemplated suicide earlier but was now no longer suicidal. He further testified Millrose didn't tell him about the suicide notes, didn't tell him M.H. had come from South Dakota and was out of work, but that he (Respondent) had discussed the status of the patient and whether M.H. was a danger to himself. Respondent's testimony that he learned of the suicide of M.H. over a year after the incident and first reviewed the records after that, coupled with Millrose's testimony that several cases would be discussed with the psychiatrist during each phone call, renders Respondent's detailed recollection of the telephone conversation with Millrose totally lacking in credibility. Petitioner's expert witness opined that the evidence of lethality contained in the BA-52 and the suicide notes was overwhelming. These included the age and sex of M.H., the fact that he was a long way from home and the availability of supportive services, that he had been drinking alcohol, that he had no job and little money, that he was apprehended in the process of committing suicide, the suicide notes, and the article he had been reading "Near Death Experiences." All expert witnesses who testified in these proceedings agreed that the evidence accompanying the BA-52 clearly indicated M.H. was a danger to himself and should not have been released. Petitioner's and Respondent's experts disagreed only in whether Respondent's actions were in accordance with acceptable medical standards if he was told only what was contained in the narrative prepared by Millrose in exhibit 5. In any case Respondent prepared no records other than those prepared by Millrose to justify overturning the recommendation for further evaluation on the BA-52. Those records are inadequate to justify M.H.'s release especially without face-to-face consultation with a psychiatrist or other health professional qualified to make such a determination. The policy of the Hillsborough Community Health Center at this time was that during hours no psychiatrist was on duty at the crisis center patients who were Baker Acted were interviewed by one of the crisis counsellors who made an assessment based upon the BA-52 and the interview, then called the psychiatrist on call to relay the information obtained from the BA-52 and the interview to the doctor who had the final authority to determine whether the patient should be released forthwith or held until face-to-face interview with a qualified health professional was completed. Once a law enforcement officer has presented an involuntary patient to the crisis center for evaluation, it is incumbent on the psychiatrist on duty (on call) to inquire into the facts giving rise to the reasons for the law enforcement officer to conclude the patient is a danger to himself or to others, and to fully inquire into the facts upon which the crisis counsellor concludes to the contrary. Regardless of what Respondent was told by Millrose it is clear that he did not make such inquiries. In failing to fully inquire into the facts upon which Millrose concluded M.H. was not a danger to himself, Respondent delegated the determination that was his alone to make to Millrose and thereby failed to practice medicine with the requisite standard of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. In failing to document any facts upon which he determined that M.H. was not a danger to himself despite the information contained in the BA-52 and in failing to document reasons for concluded that M.H. suffered from an antisocial personality disorder, Respondent failed to keep medical records justifying the actions taken. Despite the practice at the crisis center to the contrary, Rule 10E- 5.47, Florida Administrative Code, which was in effect on October 2, 1986 and Section 493.463, Florida Statutes (1985), provides that a person for whom an involuntary examination has been initiated by filing a BA-52 shall not be released by the receiving facility or its contractor without the documented approval of a person who is qualified under the provisions of this chapter to initiate an involuntary examination, i.e., a physician, psychologist licensed pursuant to Chapter 490, psychiatric nurse or clinical worker. The practice of releasing involuntary Baker Acted clients after a telephone report to the psychiatrist conflicts with the intent of this section of the statutes. However, it was the practice at the Hillsborough County Mental Health Center for intake counsellors to evaluate patients brought in during evening hours when no psychiatrist was on duty, telephone the on-call psychiatrist and apprise him of the information contained in the BA-52 and of the counsellor's evaluation of the patient, at which time the psychiatrist would order the patient held for further evaluation or released. Respondent's expert witnesses, who opined that Respondent did not fail to practice medicine with the requisite standards of care, all based their opinions on hypothetical questions which assumed that Respondent was not made aware of the suicide notes; was not aware of the epitaph found with the suicide notes; was not aware that M.H. had previously received mental health counselling when his girlfriend committed suicide a few years ago; was not aware that M.H. had not eaten or bathed for a week; was not aware patient had stated death was the answer; and was not aware M.H. was in possession of a article entitled "Near Death Experiences", when apprehended; but was told that M.H.'s main concern was having little money, however he had been offered a job and possibly a place to stay by the driver of the wrecker who had picked up his truck; that M.H. appeared relieved when told he could find a room for the night at the Salvation Army; that M.H. did not appear to be a danger to himself, was in good spirits, his mental status was within normal limits, he was cooperative, and his memory and judgment was intact; and that M.H. denied any present intent to commit suicide. In answer to the question regarding his general recollection of the contents of the telephone call between Millrose and Respondent on October 2, 1986, Respondent testified that he was told that the BA-52 stated M.H. had been trying to hook up a hose to his exhaust, that patient had expressed feeling suicidal; that after being picked up by the police he (M.H.) was with the driver of the wrecker who offered him a job and possibly a place to stay; that the patient appeared properly attired and neat in appearance; that he did not present any psychiatric symptoms; that patient had money for a overnight stay in a motel and was now looking forward to obtaining a job; and also that patient had a supportive girlfriend in the environment. According to Respondent, Millrose concluded M.H. should be given a chance to go ahead, and made this recommendation to Respondent following a diagnosis of adjustment disorder with depressed moods. In this regard it is noted that M.H.'s girlfriend was in South Dakota and could hardly provide support. No explanation was offered for the failure of Millrose or Respondent to resolve the conflict in the statement M.H. gave to Millrose that he spent last night in a motel and M.H.'s statement to the deputy sheriff that he hadn't eaten or bathed in one week. All expert witnesses concurred that the narrative contained in the BA- 52 supporting the officer's conclusions that M.H. was a danger to himself, fully supported this conclusion and described an individual with a very high suicide potential, i.e., a highly lethal patient. Millrose acknowledged that he would have considered the suicide notes significant information to pass on to the psychiatrist before the patient was ordered released, but Respondent denies ever being made aware of the suicide notes or of any of the information contained in the BA-52 narrative indicating the lethality of M.H.'s actions prior to and after he was picked up by the deputy sheriff and brought to the crisis center. As noted above, Respondent's testimony in this regard is not credible.
Recommendation It is recommended that Hussain be assessed an administrative fine of $10,000.00 and placed on probation for two years under such terms and conditions as the Board of Medicine deems appropriate. RECOMMENDED this 11th day of March, 1991, in Tallahassee, Leon County, Florida. K. N. AYERS 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 11th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4699 Proposed findings submitted by Petitioner are accepted except for: 10. The portion of the first sentence "including all of the above relevant observations which supported his opinion." The BA-52 narrative did not contain all of the facts referred to in proposed findings 8. See HO #10. Although Deputy Burton briefed the "intake person" no evidence was presented that she passed any such additional information on to Millrose. 14. No evidence was presented that a Suicide Rating Scale was available to the crisis counsellors at the CSU. Certainly no such scale was used in this case. 37. M.H. was released from the CSU following a telephone call to Respondent who authorized the release of M.H. Proposed findings submitted by Respondent are accepted except for: 6. Rejected in part. No credible evidence was presented regarding the scope of the annual survey of the CSU by HRS personnel. 29. Rejected in part. Millrose testified that while he does not recall specific details of his interview with M.H. some 5 years ago, he would normally read all of the information presented with the BA-52. 33. Rejected in part. Millrose did not recall the specific detail that the call regarding M.H. was combined with calls about other clients. Rejected as fact. Accepted as testimony of Respondent. Rejected insofar as inconsistent with HO #12. The summary prepared by Millrose was substantially relayed to Respondent during this telephone call. Rejected. Second sentence rejected. 41. Accepted only insofar as Millrose was convinced M.H. did not meet the criteria for involuntary commitment. Rejected that this was common practice. Accepted that this practice was prevalent. Rejected. Rejected. 47. Second sentence rejected. The requirement for record keeping is that the records be adequate to justify the treatment given. COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney W. Morgan, Esquire Galloway Executive Center, Suite 110 3333 Henderson Boulevard Tampa, Florida 33609 Dorothy Faircloth, Executive Director Florida Board of Medicine Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be decided concern the question of the entitlement of the Petitioner to receive retirement benefits envisioned by Section 121.091(7)(c)1., Florida Statutes, related to the alleged in-line-of-duty death of her husband, Eddie Lee Robinson, Jr.
Findings Of Fact From January 7, 1969, until his death on April 12, 1984, Eddie Lee Robinson, Jr., served as a deputy sheriff in Gadsden County, Florida. In May 1971 the deceased was made a shift commander with that department and those were his duties from that period until the end. He held the rank of Captain at the time of his death. In his capacity as a shift supervisor, Eddie Lee Robinson, Jr., was in charge of the overall sheriff's office for part of the day. In essence, Robinson was the senior officer in charge while actively serving as a shift commander. The shift which Robinson worked would vary over time. The normal work week for Robinson at the time of his death was 46 to 50 hours. During his employment with the Gadsden County sheriff's office, Captain Robinson had been enrolled in the Florida Retirement System. Robinson had married Petitioner Margie Robinson, formerly Margie Rittman Mashhurn, on August 18, 1980, and was married to the Petitioner at the time of his death. In early October 1983 Eddie Lee Robinson, Jr., experienced an onset of severe chest pain syndrome. At that time he was seen by Dr. Earl Britt, a licensed physician in the state of Florida, who is board eligible in cardiology. In the patient history given to Dr. Britt at the time, Robinson indicated that he had a cardio-respiratory complaint as early as 1975 and was seen in an emergency room for that condition. The chest pain that he suffered on that occasion persisted off and on from that date forward and became more pronounced in the several weeks prior to the October 1983 visit with Dr. Britt. At that point in time Robinson complained of shortness of breath, even with limited physical activity. In 1976 Robinson had been diagnosed as suffering with diabetes and was taking medication for that condition. In October 1983 Robinson was overweight and suffered from hypertension. When seen by Dr. Britt on this occasion, Robinson was a smoker who had used a pack of cigarettes a day for approximately 35 years. At the time of his visit in October 1983 Robinson indicated that he had experienced what Dr. Britt describes as postcoital chest discomfort, some emotionally provoked chest pain and postprandial chest pain. Upon the recommendation of Dr. Britt, Robinson submitted himself to a coronary arteriogram which was done on October 4, 1983. This catherization process was performed by Dr. Charles C. Bianco, a licensed Florida physician who specializes in diagnostic radiology and, in particular, cardiovascular radiology. Dr. Bianco is a board certified radiologist. The results of the coronary arteriogram which Dr. Bianco performed revealed blockages ranging from 95% to 100% in the coronary arteries of three vessels. Given these facts, Dr. Britt recommended that Captain Robinson submit himself to by- pass surgery to correct these conditions. Captain Robinson declined this treatment, opting instead to be treated with medication provided by Dr. Britt. Following the October 1983 episode, Captain Robinson returned to his duties with the Gadsden County Sheriff's Office. His employer was aware of Robinson's heart condition when he returned to work. At the time of his death and those days before his death, Captain Robinson was on regular duty for the sheriff's office as a shift commander. The sheriff's office had made provision for him to take an hour off at the end of his shift to exercise by walking on those days when his shift ended around 6:00 p.m. This arrangement was not carried out if his duties demanded that he remain at his post throughout the entire shift sequence. In the late evening of April 10, 1984, Captain Robinson was summoned to the Gadsden County jail to assist the chief jailer, Lieutenant Cecil Morris. In particular, Lieutenant Morris was experiencing problems with an inmate, Morris Brown, who was incarcerated for attempted armed robbery and some form of aggravated battery or assault. Brown was a juvenile who had been adjudicated under the criminal law system pertaining to adults. He was some 6'1" and 200 pounds. Brown was a problem inmate who had destroyed lockers within the jail. On the night in question when Captain Robinson was summoned to the jail around 8:00 or 9:00 p.m., Brown had flooded his jail cell. Robinson and Morris entered the jail cell and Robinson talked to Brown to try to calm the inmate down. In doing so, Robinson shook a can of mace and told Brown that if Brown did not calm down, Robinson would have to mace him. Brown responded by indicating that he wished that Robinson would do that so that he could sue him. Brown also told Robinson, "If I get out, I know where you live." Eventually, Brown became less belligerent. Robinson then explained to Brown that they were going to have to put handcuffs on him, to which Brown replied that nobody was going to cuff him. Robinson and Morris then took the prisoner by the arms and moved him toward a bed or bunk within the cell. While this was transpiring, the prisoner pulled away from Morris, causing Morris to have to grab his arm again. Subsequently, Brown was moved back toward the bunk and pulled down to the bunk's surface. While Brown was seated on the bunk, a third officer put cuffs on him, and Brown struggled while this was being achieved. Throughout this episode Brown's basic demeanor evidenced antagonism. The situation with Morris Brown lasted for a period of five to fifteen minutes. Captain Robinson's reputation in his law enforcement work was that of an officer who was able to diffuse difficult situations with persons he encountered in his law enforcement work by talking to them as opposed to physical confrontation. Nonetheless, there were occasions where Robinson was called upon to physically subdue prisoners. In the experience of Lieutenant Morris, the previously described circumstance was the only occasion in which Robinson had been observed to interact physically with a prisoner. The extent of that physical confrontation did not include exchange of punches between the participants. When Captain Robinson returned home following the incident with Brown, he discussed that situation with his wife. The discussion was held on that same evening or the early hours of the following morning. His remarks and physical appearance pointed out how disturbed he was about the Brown incident. He seemed despondent. In the course of the conversation, Robinson took nitroglycerin because of his physical condition. He had not taken nitroglycerin for an identifiable period prior to that evening. (Nitroglycerin had been prescribed by Dr. Britt for Captain Robinson's heart condition.) Robinson remarked to his wife that he was "hurting." He told her that the prisoner Brown had flooded the jail cell and he had to go in and help restrain the prisoner. This was only the third incident, to the knowledge of his wife, in which Robinson had physically struggled with someone while performing his duties. On the following day, Captain Robinson went off duty. He visited with his mother, Lena Robinson, on a couple of occasions during that day and talked to two of his acquaintances, Luke McCray and King Baker. While in the presence of his mother and the other two individuals, there was no indication of pain on the part of Captain Robinson, nor did he use any medication. In their presence he did not appear troubled. In the late night of April 11 or early morning of April 12, 1984, while at home, Captain Robinson complained to his wife that he could not breathe. He took two nitroglycerin, began to have cold sweats and expired, having suffered a fatal heart attack described as an acute myocardial infarction, sudden death syndrome. At the time of his death, Eddie Lee Robinson, Jr., was 50 years old. Dr. Britt is qualified to give expert medical opinion testimony on the question of the cause of death of Eddie Lee Robinson, Jr. Those qualifications are based upon Dr. Britt's training and experience as a physician and specialist in cardiology, his familiarity with the deceased's underlying health and his knowledge of the basic facts of Robinson's encounter with Brown, the remarks of the Petitioner about the deceased's condition on the evening of the Brown incident when the deceased returned home and the explanation of the death approximately 26 to 28 hours later. In remarking on these matters, in his deposition of May 22, 1986, at page 9 under questioning by counsel for the Petitioner, Dr. Britt said: Assuming these facts, Doctor, within a reasonable degree of medical probability, is it your medical opinion that the struggle at the jail that night caused the death of E.L. Robinson? A I can answer that in the hypothetical fashion by stating that there are well- documented markers as to what will trigger a stable anginal pattern in a patient with documented coronary artery disease being emotional provocation with physical exertion as a very common trigger for what we call the inciting event for a fatal result. If you give the clinical scenario that you have just described and ask me to mark it, use it as an index marker of likely cause and effect, it would be very high as a probable cause of the effect that occurred to him within the next 24 to 36 hours as the inciting or provocative cause. Q Within a reasonable degree of medical probability then, it could be stated that the struggle at the jail precipitated the cardiological event that resulted in E. L. Robinson's death? A It would be reasonable to say that this was the inciting event that caused an unstable setting to occur out of which a sudden death syndrome could arise. Having considered these remarks by Dr. Britt, it is concluded that within a reasonable degree of medical probability the encounter between the deceased and Brown was the precipitating event of the death of Captain Robinson. Dr. Bianco, who had knowledge of the Robinson case and the patient's death, felt that the overall condition of the patient, that is significant coronary artery disease and the fact of participation in a job which was much too stressful for his physical condition, was more likely the cause of death than the specific incident with Brown. That condition is made the more threatening, according to Dr. Bianco, due to the patient's habit of smoking, the patient's diabetes and high blood pressure and obesity. Dr. Bianco emphasized the effect of stress as a contributing factor in the patient's demise. However, in the final analysis, Dr. Bianco defers to Dr. Britt on the subject of the causation of Captain Robinson's death, and for that reason the opinion of Dr. Bianco is discounted and does not form the basis of fact determination on the question of the causation of the death of Captain Robinson.
