The Issue Each of the petitioners disputes respondent's contention that Port St. Lucie and vicinity do not need hospital beds beyond the number that might practicably be added to Martin's Stuart facility and HCA's Lawnwood Medical Center in Ft. Pierce. The petitioners agree that a need for hospital beds in or near Port St. Lucie exists and each petitioner takes the position that it can best meet the need. As to which of the petitioners might best meet a need it does not concede to exist, respondent takes no position.
Findings Of Fact The parties stipulated that a "population explosion" is taking place in Port St. Lucie and environs. The town was developed by General Development Corporation; 75,000 residential lots were offered for sale and 90 percent have been sold. At the time of the hearing, Port St. Lucie's population was approximately 14,000 to 16,000 persons, even though only some seven or eight thousand residential lots had been built on. In addition, approximately 10,000 persons reside in developments contiguous to Port St. Lucie. The population of Port St. Lucie may increase several fold in the next ten or fifteen years. While the population in other parts of Martin and St. Lucie Counties is also expected to grow, the greatest increase in population in the area is anticipated in Port St. Lucie and its immediate vicinity. Already Port St. Lucie's population is greater than the population was in Stuart when a hospital was first built in that community and than the population was in Ft. Pierce when a hospital was originally built in that community. ACCESSIBILITY Port St. Lucie lies in south St. Lucie County more or less equidistant from Ft. Pierce to the north and Stuart, county seat of Martin County, to the south. Most residents of Port St. Lucie live ten miles or more from a hospital. The nearest hospitals are in Ft. Pierce and Stuart, which each have a single hospital. PATIENTS AND VISITORS St. Lucie County Fire Districts provide emergency services to residents of Port St. Lucie and vicinity. Time that emergency personnel and vehicles spend transporting patients to hospitals is time they are unavailable to respond to other emergency calls. Under favorable traffic conditions, it takes 20 to 30 minutes to drive from Port St. Lucie to either of the hospitals nearby. Road building in St. Lucie County is not expected to keep pace with increasing population in the near term; traffic is likely to become more congested in the next few months and years. (Testimony of Commissioner Enns.) There is no public transportation in the area. A railroad track crosses the highways connecting Port St. Lucie and Ft. Pierce's Lawnwood Medical Center. In a typical 24-hour period, trains using this track block U.S. Highway 1 for six minutes. Traveling from Port St. Lucie to Martin's hospital in Stuart, a somewhat shorter distance, requires crossing more than one railroad track as well as a drawbridge which, earlier this year, was stuck open stopping automobile traffic for an hour and a half. In the summer of 1979, a patient on route from Port St. Lucie to Stuart died in an ambulance stopped at a railroad track. PHYSICIANS In 1972, Bernard Daniel Ross, an internist, was the only physician in Port St. Lucie. At the time of the hearing, approximately 30 doctors had offices in Port St. Lucie, some of whom also had offices in Ft. Pierce. Dr. Ross makes up to three round trips daily between his office and Lawnwood Medical Center, which are ten miles apart. Dr. Asuncion Luyoa, a general practitioner who has lived in Port St. Lucie for three years, seas ten to fifteen new patients a day. She also makes frequent trips to the hospital. Dr. John B. Sullivan, who has staff privileges at Lawnwood Medical Center and who has practiced in St. Lucie County for 16 years, opened an office in Port St. Lucie a little more than two years ago. UTILIZATION OF EXISTING HOSPITALS St. Lucie, Martin, Indian River, Okeechobee, and Palm Beach Counties comprise Florida Health Service Area Region VII, the jurisdiction of Health Planning Council, Inc., (HPC), the local health systems agency. For the most part, residents of each county use hospital facilities in their own county. Lawnwood Medical Center served 12.3 percent of Okeechobee County residents needing hospitalization, 1.9 percent of Indian River County residents needing hospitalization, and 1.3 percent of Martin County residents needing hospitalization. The bulk of its patients came from St. Lucie County; of St. Lucie County residents needing hospitalization, 71 percent were hospitalized at Lawnwood. Ninety percent of Martin County residents needing hospitalization and 15.8 percent of St. Lucie County residents needing hospitalization were hospitalized at Martin's Stuart facility. Most of the remaining St. Lucie County residents needing hospitalization, 10.8 percent, went to Indian River Memorial Hospital in Vero Beach. At the time of the hearing, more than 90 percent of the 225 hospital beds at Lawnwood Medical Center were occupied. Twenty-four authorized beds at Lawnwood Medical Center were in fact unavailable until the latter part of 1979 when 18 were opened; the final six beds (in the intensive care unit) were opened in late December of 1980. Even so, the occupancy rate at Lawnwood Medical Center, as a percentage of 225 beds, was 70.5 for 1979. The overall occupancy rate for 1980, as a percentage of 225 beds, was 79.9. In 1980, monthly occupancy rates, as a percentage of 225 beds, were 80.2 for January, 79.7 for February, 81.1 for March, 81.8 for April, 75.7 for May, 72.7 for June, 78.6 for July, 81.1 for August, 80.9 for September, 87.3 for October, 76.9 for November, and 82.3 for December. Except for 20 obstetric, 15 pediatric, and 18 intensive or coronary care unit beds, all of the beds at Lawnwood Medical Center are medical or surgical. The overall 1980 occupancy rate for medical and surgical beds was 83 percent. At the time of the hearing, eight obstetric beds, four pediatric beds, four beds in the intensive care unit, and four medical/surgical beds were unoccupied at Lawnwood Medical Center. Not all medical/surgical beds can always be occupied; men and women patients are segregated and patients with respiratory diseases, among others, require isolation. On one day in January of this year, admission of 13 patients had to be delayed. These patients were put on a waiting list for elective surgery, which, in some instances, was postponed three or four weeks. Martin's Stuart hospital has expanded five times in recent years (1960, 1963, 1970, 1976, and 1978-1979) and a sixth expansion to add 50 beds is now in progress. On January 15, 1979, when the last expansion was completed, 50 beds were opened to the public. They were filled within 24 hours. When the expansion now under way is accomplished, the Stuart hospital will have 302 beds. Martin "defines emergency bed status as. . .five or less medical/surgical beds available. . .mean[ing] that the hospital medical/surgical beds are at least 97.5 percent occupied." Martin's application, p. 30. During the period of January, 1979, through March, 1979, Martin's hospital in Stuart was on "emergency bed status" 16.7 percent of the time. During the same period in 1980, the hospital was on "emergency bed status" 45 percent of the time. A waiting list of up to 60 patients is not uncommon in the winter season. Indian River Memorial Hospital in Vero Beach, 25 miles north of Lawnwood Medical Center, had 99 percent of its 216 available beds occupied in mid-January of this year. According to John Hoyt, executive director of Indian River Memorial Hospital, an occupancy rate as high as 90 percent suggests that pediatric and obstetric beds were pressed into service for medical and/or surgical patients. For the year ending September 30, 1980, the overall occupancy rate averaged 83 percent. The monthly occupancy rates for the calendar year 1980 were 89.9 for January, 90.1 for February, 90.8 for March, 83.9 for April, 78.8 for May, 79.3 for June, 77.1 for July, 79.0 for August, 86.0 for September, 88.0 for October, 84 for November, and 82.0 for December. Indian River Memorial Hospital plans to open another 24 beds in March of 1981, but does not anticipate having the ability to provide service for people in Port St. Lucie and vicinity. Only a few patients from southern St. Lucie County have been admitted to Indian River Memorial Hospital, which is more than 30 miles and some 45 minutes away. In the opinion of Mr. Hoyt, any patients Indian River Memorial Hospital might lose to an expanded Lawnwood Medical Center or to a new facility in Port St. Lucie would be more than offset by patients from the growing population in Vero Beach and vicinity. HEALTH SYSTEMS PLAN The HPC has adopted an amended health systems plan 1980-1984, which includes the following goals and objectives: Health Systems Goal The number of acute care hospital beds should be no more than four (4) licensed beds per 1,000 population in HSA Region #7. Application of this goal throughout the area should take into consideration the following factors: Changes in patient origin patterns; Age differences within a hospital primary service area; Emergency Scheduling; Geographic isolations (95 percent of population not within 30 minutes of services), economic efficiency and quality assurance. Long-Range Objectives For the next four (4) years, any net increases in licensed acute care general hospital beds should be limited to the expansion of medical/surgical beds. In order to meet the projected need for medical/surgical beds, a reallocation of existing beds from pediatric, obstetrical, ICU, CCU, monitored and intermediate care will have to take place. For the next four (4) years, existing hospitals should be encouraged to expand in order to meet the projected demand for services in their primary service area either through expansion of the main facility or satellite outpatient facilities. Health Systems Goal Region-wide (HSA #7), the overall average annual occupancy rate for acute care general hospital licensed beds should equal 75 percent. Long-Range Objectives By 1984, the region-wide annual occupancy rate for licensed acute care hospital beds should increase to 75 percent. By 1984, the region-wide annual occupancy rate for each of the following bed categories should be as follows: Medical/Surgical 75 percent Obstetrical 65 percent Pediatric 65 percent ICU, CCU, Monitored & Intermediate Care 80 percent By 1984, any hospital with less than 50 percent annual occupancy rate should be consolidated with other hospitals in the same service area as defined by the Health Planning Council. By 1982, all hospitals should have developed a five-year plan that contains the following: Statement of Purpose; Description of Present Facilities and Programs; Statement of Goals; Proposed Major Programs and Resources Necessary to Reach Goal. Health Systems Goal Average daily service charge for all acute care hospitals in HSA Region #7 should not increase at a rate greater than 1 1/2 times the annual cost-of-living increase. Long-Range Objectives By 1981, information should be made available to the community on gross patient revenues and total cost of hospital services within HRS #7 for the purpose of monitoring the goal. By 1982, at least six (6) presently existing acute care hospitals in HSA Region #7 should establish cooperative arrangements for the provision of specialized services. BED NEED PROJECTIONS According to the preliminary 1980 census figures, St. Lucie County had a population of 86,969 and Martin County had a population of 62,979. Joint Exhibit No. 1. The Bureau of Economic and Business Research of the University of Florida projects populations for St. Lucie County of 89,500 for 1981; 92,300 for 1982; 95,700 for 1983; 99,100 for 1984; and 102,500 for 1985. Joint Exhibit No. 1 (medium projections). The Bureau of Economic and Business Research of the University of Florida projects populations for Martin County of 62,100 for 1981; 64,600 for 1982; 67,600 for 1983; 70,600 for 1984; and 73,600 for 1985. Joint Exhibit No. 1 (medium projections). The Martin County projections presumably require revision upward in light of the 1980 census results. Preliminary 1980 census figures put the population of Okeechobee County at 20,324, and the population of Indian River County at 57,217. Joint Exhibit No. 1. The Bureau of Economic and Business Research projects 1984 populations of 23,700 for Okeechobee County and 67,300 for Indian River County. Joint Exhibit No. 1 (medium projections). The 1980 population of Palm Beach County is on the order of 594,900 and is projected to rise to 684,400 by 1984. Joint Exhibit No. 1 (medium projections). As of December 31, 1980, Palm Beach County had 2,654 licensed and approved acute care hospital beds; Okeechobee County had 75; and Indian River County had 343. HCA's Exhibit No. 1. The 302 beds authorized for Martin's hospital in Stuart were the only acute care hospital beds licensed or approved in Martin County as of the time of the hearing. All 225 beds approved for St. Lucie County were open at Ft. Pierce's Lawnwood Medical Center, at the time of the hearing. The ratio of hospital beds to population is lower in Region VII than in any other health service area in Florida. Although the amended health systems plan 1980-1984 specifies four hospital beds per 1,000 population, the HPC sometimes applies a rule of thumb designed to reflect the additional need for hospital beds in an area which has a larger component of elderly persons than the national average and which has seasonal swings in population. Under this rule of thumb, 1,055 patient days in hospitals are assumed for each 1,000 persons annually, along with the 75 percent average utilization rate for hospital beds. But applying this rule of thumb actually results in lower bed need projections than using the four beds per 1,000 population criterion which is used throughout the nation for populations without unusually high numbers of older persons and which do not fluctuate seasonally. As compared to four per 1,000, 1,055/365 X 100/75 yields 3.85+ beds per 1,000 population. Using the four bed per 1,000 approach, based on the medium population projections forecast by the University of Florida's Bureau of Economic and Business Research, Indian River County will require 269 hospital beds by 1984; Okeechobee County will require 95 hospital beds by 1984; Palm Beach County will require 2,738 beds by 1984; Martin County will require 282 beds by 1984; and St. Lucie County will require 396 beds by 1984. HCA Exhibit No. 1. Using the same four bed per 1,000 population formula, a region-wide deficit of 181 beds is forecast for 1984. HCA Exhibit No. 1. On the average, elderly people require more hospitalization than younger people require. The population of south St. Lucie County has a large component of elderly persons. Most of Port St. Lucie's residents are retirees. According to one estimate, 28 percent of the population of St. Lucie County residing south of Midway Road is older than 65. In Indian River, Okeechobee, Martin, and St. Lucie Counties, as a group, the proportion of persons over 65 to the whole population is higher than the national average. Approximately 29 percent of the population of Martin County is over 65. For Port St. Lucie and vicinity, hospital bed needs should be projected at four beds per 1,000 residents, at a minimum. On this basis, if no new beds are opened in Martin and St. Lucie Counties beyond those already certificated, and if the medium population projections are correct, there will be a deficit in the two-county area of 151 general acute care hospital beds by 1984, assuming residents of the area choose hospital care in the area. HCA Exhibit No. 1. In evaluating the need for hospital beds for residents of Port St. Lucie, Martin and St. Lucie Counties are the logical primary service area, instead of the four-county region that respondent used, which included Okeechobee and Indian River Counties, in addition to Martin and St. Lucie Counties. Less than ten percent of the residents of Martin and St. Lucie Counties requiring hospitalization leave the two-county area to be hospitalized. Palm Beach County is properly excluded and no party contends otherwise. Indian River and Okeechobee Counties should be excluded for the same reasons that Palm Beach County should be excluded. The distance from Indian River Memorial Hospital to Port St. Lucie is approximately the same as the distance from Port St. Lucie to the nearest hospital in Palm Beach County. Sebastian River Medical Center, the only other hospital in Indian River County, and Raulerson Hospital in Okeechobee County are further from Port St. Lucie than at least one and possibly two hospitals in northern Palm Beach County. No hospital could open its doors in Port St. Lucie until well into 1982, even if approved today. On the basis of four beds per 1,000 population, assuming that the medium population projections of the University of Florida's Bureau of Economic and Business Research are accurate, and assuming that Martin's expansion of its Stuart facility is accomplished this year, St. Lucie and Martin Counties will have a hospital bed deficit of 79 in 1981; 100 in 1982; 126 in 1983; and 177 in 1985. NEW CONSTRUCTION v. EXPANSION Martin has no plans to expand its Stuart facility beyond the 302 beds for which it has already obtained certificates of need. The final 50-bed expansion now going on will utilize the hospital's ancillary services facilities fully, and fill up all available parking areas. Any further expansion would require building a new, seventh floor without interrupting the operation of the hospital; and would necessitate construction of a multi-story parking garage at a cost of $4,200 per space. Adding 50 beds to its Stuart hospital would, moreover, require 28,000 square feet of new floor space and renovation of 2,000 additional square feet in order to house necessary ancillary facilities, all at a total projected cost of $10,556,001. Martin's Exhibit No. 1. Martin projects the cost of a 50-bed complex it proposes for Port St. Lucie at $9,768,001. Martin's Exhibit No. 1. The only other hospital that could be expanded to meet the needs of the burgeoning Port St. Lucie population is Lawnwood Medical Center, owned by HCA. Lawnwood Medical Center was designed and built with a view toward expansion, ultimately to more than 300 beds. HCA's employees project a need in 1984 for enough beds at Lawnwood Medical Center, over and above the 75 beds HCA proposes for Port St. Lucie, to justify an expansion of Lawnwood Medical Center in the near future. HCA personnel testified to plans to apply, within a year, for a certificate of need authorizing expansion of Lawnwood Medical Center by an unspecified number of beds. Adding to a hospital takes more time than constructing equivalent facilities from the ground up. Each department of the hospital must continue its work, even if delays in construction result. A 75-bed expansion of Lawnwood Medical Center would take 18 to 20 months, HCA's architect estimates, as opposed to the 12 to 14 months the same architect estimated would be necessary to build a new 75-bed hospital in Port St. Lucie. In general, larger hospitals require more floor area per bed than smaller hospitals require. Construction costs of adding 75 beds to Lawnwood Medical Center would be greater than the costs of constructing the 75-bed hospital HCA proposes for Port St. Lucie, but acquiring land for a new hospital would cost $500,000, which, when added to construction costs, would make a 75-bed new hospital more expensive than a 75-bed addition to Lawnwood Medical Center, by some 139,219 in 1980 dollars, a per-bed differential of 1,856 in 1980 dollars. HCA's Exhibit No. 4. Because the space available for ancillary services in Lawnwood Medical Center is such that a 50-bed expansion can more readily be accommodated than an expansion half again as large (which would involve an additional floor of the hospital outside any "shelled in" area) it would cost less to add 50 beds to Lawnwood Medical Center than to construct a new 50-bed hospital. Both Martin's Stuart facility and HCA's Lawnwood Medical Canter have costly specialized equipment which could not economically be duplicated at a new facility in Port St. Lucie. A new oncology center, for example, is planned for Lawnwood Medical Center at a cost of approximately $2,000,000. In order to use these specialized facilities, specimens and patients would have to be transported either to Stuart or to Ft. Pierce, and overnight stays would sometimes be required of patients. At least 80 percent of the patients at a new facility in Port St. Lucie would not require specialized services unavailable in Port St. Lucie, however. OSTEOPATHY ON THE TREASURE COAST The American Osteopathic Association has a membership of some 16,000 osteopathic physicians. Osteopaths practice in every state in the country, but 70 percent of them live in 15 states. The profession developed in Missouri, where it is now well established. Significant numbers of osteopathic physicians also live in Michigan, Ohio, Pennsylvania, and New Jersey, and, increasingly, Florida and California. At the time of the hearing, there were no osteopaths resident in St. Lucie County, and none maintained an office there. Outside of Palm Beach County, only seven osteopaths lived in HSA Region VII. No osteopath had applied for staff privileges at Lawnwood Medical Center or its predecessor since January 1, 1967. Under the by-laws of Lawnwood Medical Center, dental surgeons, podiatrists, and osteopaths, as well as allopathic physicians, are eligible for admitting privileges, but only if the practitioner resides in St. Lucie County and has an office in St. Lucie County. More than one osteopath has applied for admitting privileges at the hospital in Stuart, but none has been granted such privileges. Martin's Stuart facility's by-laws require two years' post-graduate education, for medical and osteopathic graduates alike, as a prerequisite to admitting privileges. Although neutral in form, this requirement is a barrier to most osteopaths, who typically complete one year of post-graduate education before entering general practice. One osteopath, a diplomate of the American Medical Association's Board of Family Practice with two years' education beyond osteopathy school was denied admitting privileges because his character did not measure up to Martin's credentials committee's standards, or so they stated. Many of the medical graduates on staff at the hospital in Stuart had only a single year of post- graduate training, but they were grandfathered in when the two years' requirement was adopted in the late 1970s. The hospital in Stuart does employ an osteopath on its emergency room staff, but he does not have admitting privileges at the hospital. Bruce C. Equi, an osteopathic physician, has an office in Stuart and 2,500 to 3,000 patients in the area. In 1979, he sent 300 patients to the Community Hospital of the Palm Beaches 45 miles away, where he has full staff privileges. A round trip from his office to visit a single hospital patient consumes two and a half hours. Loren Shefter, an osteopath whose office is in Port Salerno, Martin County, traveled an average of 160 miles a day the week before the final hearing, partly because he lives 28 miles from his office, but partly because his office is 40 miles from the Community Hospital of the Palm Beaches, the only hospital at which Dr. Shefter has admitting privileges. He is responsible for the care of about 3,000 families. After practicing in Miami for 20 years, Arthur A. Lodato, another osteopath, opened an office in Palm City just west of Stuart. Dr. Lodato has seen about 900 patients in his Martin County office. If a patient is hospitalized under Dr. Lodato's care, it is in Miami, where he still practices half-time. Dr. Textor in Jupiter, Florida, has six osteopathic patients from Martin and St. Lucie Counties. Upon admission to an osteopathic hospital, a "structural chart" is prepared for each patient. Depending on the results, certain "modalities of manipulative treatment" may be administered. Otherwise, the practice of osteopathic medicine resembles the practice of medicine by medical graduates; there are osteopathic radiologists, osteopathic pediatricians and so forth, but most osteopaths do not specialize. The Southeastern College of Osteopathic Medicine, the 15th such college in the United States, was chartered in 1979 and is located in Miami, where the first class is to matriculate in the fall of this year. Beginning In the fall of 1981, the plan is, students will leave the campus for the "clinical phase" of their education, which will take place in an osteopathic hospital. If there is an osteopathic hospital in Port St. Lucie by that time, and if it meets the College's standards, such students, as well as interns and residents, might work under the supervision of the hospital staff as part of their training. The opening of an osteopathic hospital would probably attract osteopathic physicians. There were 15 osteopaths in Palm Beach County when the Community Hospital of the Palm Beaches was originally planned. When it opened in 1975, there were 35, and now there are 65 osteopathic physicians in the area. APPLICATIONS REVIEWED HPC board members resident in counties other than Palm Beach County constitute the Indian River Area Committee, which considered all three of the applications at issue in the present proceedings. The Indian River Area Committee voted in favor of HCA's application (by a two-to-one margin), and voted disapproval of both StLHC's and Martin's applications to build a new facility in Port St. Lucie. Subsequently, the HRC recommended against HCA's application and against the StLHC application; and made no recommendation on Martin's proposal. Respondent's Office of Community Health Facilities then turned down all three applications, on grounds that there was no need for additional beds, that existing hospitals were under utilized, that a new facility would be inconsistent with the "objective of expanding existing facilities or use of primary satellite facilities," and, in the case of StLHC's application, that no lack of osteopathic facilities had been documented. THE APPLICANTS' PROPOSALS Martin would build a 50-bed inpatient facility, an ambulatory care center, and a physicians' office building in Port St. Lucie, at a total projected cost of $11,708,255. HCA would build a 75-bed hospital with emergency room facilities that would be the functional equivalent of Martin's proposed ambulatory care center, at a total projected cost of $ 8,357,848. A related company might build a physicians' office building nearby. StLHC would build a 125-bed hospital, with emergency room facilities that would be the functional equivalent of Martin's proposed ambulatory care center, at a total projected cost of $11,700,000. At the hearing, StLHC indicated a willingness to scale down its proposal. StLHC relies for financing (as a backup for unspecified primary financing) on a letter (typed on stationery without any letterhead) from an individual, one Joseph Iozia, dated September 17, 1980, addressed to Bruce Equi, M.D. [sic], stating: Please be informed that a mortgage loan of $18,000,000 has [been] set aside for the building of the St. Lucie Hospital in Stuart [sic], Florida. StLHC has given nothing as consideration for this supposed commitment to lend $18,000,000 at an unspecified interest rate at an unspecified time for an unspecified term. Martin has substantial assets, mainly in the form of the hospital in Stuart. It proposes to finance the satellite medical complex it plans for Port St. Lucie by issuing parity bonds; additional indebtedness would be secured by the same property that serves as collateral for an already outstanding bond issue, says Martin. But the existing indenture between Martin and its bondholders provides in part: Section 11.02 Parity Bonds. Additional Bonds may be issued on a parity and equality of rank with any Outstanding Bonds with respect to the security afforded by this Indenture, under the following conditions, but not otherwise: without regard to the requirement of subsection (c) of this section, not exceeding $750,000 for the purpose of completing the Project; without regard to the requirements of subsection (c) of this section, for the purpose of refunding any Outstanding Bonds which shall have matured or which shall mature not later than three months after the date of delivery of such additional Bonds and for the payment of which there shall be insufficient money in the Principal and Interest Fund, the Bond Redemption Fund and the Bond Reserve Fund; for the purpose of refunding any Outstanding Bonds or extending, improving, equipping or replacing the Hospital, including expenses of issuing such Bonds interest during any construction period and additional amounts to be deposited in the Bond Reserve Fund, if all of the following conditions shall have been met: either (A) the average annual Net Revenues for the two Fiscal Years immediately preceding the issuance of such additional Bonds, as evidenced by the annual audit required by Section 9.04(b) hereof, must have been equal to at least 1.20 times Maximum Annual Principal and Interest Requirements including the requirements of the additional Bonds; or (B) the average annual Net Revenues for the two Fiscal Years immediately preceding the issuance of such additional Bonds as evidenced by the annual audit required by Section 9.04(b) hereof, must have been equal to at least 1.10 times the average Annual Principal and Interest Requirements for such years; and the Net Revenues, as estimated in writing by a Hospital Consultant, for each of the two completed Fiscal Years next succeeding the date of completion, as estimated in writing by the Corporation's independent architect, of the improvements, extensions or replacements financed by the additional Bonds, will be not less than 1.25 times Maximum Annual Principal and Interest Requirements, including the requirements of the additional Bonds; the Corporation shall not be in default hereunder and the payments required by Section 6.01 hereof to be made into the various funds therein provided must be current; there shall be on deposit in the Bond Reserve Fund an amount equal to not less than Maximum Annual Principal and Interest Requirements, including the requirements for such additional Bonds; . . . For purposes of Section 11.02(c) of the indenture, "Hospital" is defined in Section 1.01 of the indenture to mean "the Hospital Site and any hospital facilities now or hereafter situated on the Hospital Site, and the Hospital Equipment." HCA called as a witness bond counsel, who testified that it was legally impossible for Martin to issue parity bonds to build a new and distinct facility in Port St. Lucie, because issuance of parity bonds for such a purpose is proscribed by Section 11.02 of the indenture. It was not clear from the evidence, moreover, that Martin could finance construction of the facility it proposes, even if it could sell every bond it planned to issue. HCA could finance construction of the 75-bed hospital it proposes for Port St. Lucie with cash from its operations; its revenues last year totaled 1.4 billion dollars. Alternatively, HCA, which is listed on the New York Stock Exchange, could borrow money from a bank, write commercial paper, or issue bonds. HCA has completed 159 projects since 1969. It spent $160,000,000 constructing hospitals in 1980. HCA has adequate financial, manpower, and management resources to build and operate a hospital at Port St. Lucie. HCA is second only to the federal government as a purchaser of hospital supplies and equipment. Because it purchases in large volume, it enjoys certain advantages. In every year since 1973, expenses per adjusted admission to HCA hospitals have increased, but every year the increase has been less than the average increase in expenses per adjusted admission for all members of the American Hospital Association for two same years. The same is true for increases in net revenue per adjusted admission. HCA Exhibit No. 14. None of HCA's hospitals in Florida has increased its annual daily service charge at a rate greater than 1.5 times the annual cost of living increase. (T. 1019.) In 1979, gross inpatient revenue per admission to HCA's Florida hospitals was slightly less than gross impatient revenue per admission to community hospitals in Florida in 1979. HCA Exhibit No. 14. HCA proposes that the new hospital in Port St. Lucie share laundry, CAT scanning, radiation therapy, and other services with Lawnwood Medical Center in Ft. Pierce. The Red Cross, the St. Lucie County Welfare Association, Inc., a nursing home in the area, and others have expressed a willingness to work with the staff of a new hospital in Port St. Lucie. All parties made posthearing submissions. Martin filed (proposed) findings of fact and conclusions of law as did HCA and respondent. StLHC addressed the issues in its brief. The parties' proposed findings of fact have been considered and, in large part, adopted in the foregoing findings of fact. To the extent proposed findings have not been adopted, they are deemed irrelevant or unsupported by the evidence adduced at hearing.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny Martin's application for certificate of need. That respondent deny St. Lucie Hospital Corporation's application for certificate of need. That respondent grant HCA's application for certificate of need on condition that the by-laws of any hospital built pursuant to this certificate of need set no educational requirements for osteopaths, beyond the educational requirements necessary for licensure in Florida, as a prerequisite to conferring admitting privileges. DONE AND ENTERED this 28th day of April, 1981, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1981. COPIES FURNISHED: Jon C. Moyle, Esquire and Thomas A. Sheehan, III, Esquire Post Office Box 3888 West Palm Beach, Florida 33402 John Werner, Esquire Suite 110 1164 East Oakland Park Boulevard Fort Lauderdale, Florida 33334 Felix A. Johnston, Jr., Esquire Suite 112 1030 East Lafayette Street Tallahassee, Florida 32301 Claire D. Dryfuss, Esquire 1323 Winewood Boulevard Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES HOSPITAL CORPORATION OF AMERICA, MARTIN MEMORIAL HOSPITAL, and ST. LUCIE HOSPITAL CORPORATION, Petitioners, vs. CASE NO. 80-1687 80-1715 DEPARTMENT OF HEALTH AND 80-1731 REHABILITATIVE SERVICES, Respondent. /
Conclusions THIS CAUSE crune on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $500.00 within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration" containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney's fees. This matter is closed. Thomas . Agency for , Secretary Care Administration I Filed January 22, 2010 4:28 PM Division of Administrative Hearings.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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 I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below named persons/entities by the method designated on this y of , 2010. & ry- Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 922-5873 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Steve Emling Field Office Manager Agency for Health Care Administration (Interoffice Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) Jason H. Clark, Esq. Post Office Box 17486 West Palm Beach, FL 33416 (U.S. Mail) Thomas J. Walsh II, Esq. Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Administrative Law Judge Div. of Admin. Hearings (Interoffice Mail) 2
The Issue The issue in this case is whether Respondent, Joseph Ovadia, M.D., committed the violations alleged in an Administrative Complaint issued by Petitioner, the Department of Health, on August 26, 2002, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Joseph Ovadia, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 0046214. At the times material to this matter, Dr. Ovadia was on staff at Homestead Hospital, with emergency "on-call" responsibilities. Although not certified by the Board of Medicine (hereinafter referred to as the "Board"), Dr. Ovadia specialized in orthopedic surgery, with sub-specialties in joint reconstruction, and shoulder and hand surgery. Dr. Ovadia received his medical degree from McGill University in Canada. He completed an internship/residency in orthopedic surgery at the Department of Orthopedics at New York University Medical Center, completed a clinical assistantship in London, England, and has been licensed to practice in Florida since 1985. Dr. Ovadia is a Medicare and Medicaid provider with approximately 30 percent of his practice devoted to Medicaid patients. As a result of the incidents involved in this matter, Dr. Ovadia's privileges at Homestead Hospital were revoked in 1998. Dr. Ovadia has not been disciplined by the Board. He has made one malpractice payout of $30,000.00 in 1986. The Department's Administrative Complaint and Dr. Ovadia's Request for Hearing. On August 22, 2002, the Department filed a three-count Administrative Complaint against Dr. Ovadia before the Board alleging that his treatment of three patients, identified in the Administrative Complaint as W.G., F.S., and W.L, constituted gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances (the recognized acceptable treatment will hereinafter be referred to as the "Standard of Care"), a violation of Section 458.331(1)(t), Florida Statutes. On or about October 3, 2002, Dr. Ovadia executed an Election of Rights form, indicating that he disputed the allegations of fact contained in the Administrative Complaint and requesting a formal administrative hearing pursuant to Section 120.569(2)(a), Florida Statutes. Dr. Ovadia's request for a formal administrative hearing was filed by the Department with the Division of Administrative hearings. Treatment of Patient W.G. On August 21, 1997, W.G., who was 53 years of age at the time, presented to Homestead Hospital's emergency room. W.G. arrived a little after 7:00 p.m. (2100 hours). At the time of his arrival and throughout his stay in the emergency room, W.G.'s condition was not life-threatening. Dr. Ovadia was acting as the on-call orthopedic surgeon for Homestead Hospital on August 21, 1997, at all times relevant to the treatment of W.G. W.G. presented with a severe laceration (3 centimeters long) to his right thumb which had been caused by an electric saw blade. W.G. was examined by an emergency room physician1 who concluded that W.G. had a lacerated flexor tendon in his right thumb. The emergency room physician determined that it was necessary to consult with Dr. Ovadia concerning W.G.'s injury. The emergency room physician ordered that W.G. be treated with IV antibiotics, that he be given a tetanus shot, and that x-rays be taken of his thumb. Although there is no note in the medical records, W.G.'s wound was cleaned by the emergency room staff, based upon W.G.'s testimony. The x-ray of W.G.'s thumb indicated that he had a comminuted fracture. The x-ray was taken at 7:18 p.m. (1918 hours), but the observation concerning the x-ray was apparently not made until the following day, August 22, 1997, at 11:17 a.m. Petitioner's Exhibit 2, Page 300. A notation at 9:50 p.m. (2155 hours), indicates that "MD on call [called] ortho Ovadia . . . ." There was no direct testimony from the nurse or physician's assistant who made this note that the he or she actually spoke to Dr. Ovadia or whether Dr. Ovadia was only paged. The following note, however, made at 9:55 p.m. (2255 hours), only five minutes after the first note, indicates that the nurse spoke with Dr. Ovadia at 9:55 p.m. Lacking direct evidence as to what took place at 9:50 p.m., an inference is drawn that Dr. Ovadia did not talk with anyone from the emergency room until 9:55 p.m. and that the first notation relates only an effort to page Dr. Ovadia at 9:50 p.m. At 9:55 p.m., Dr. Ovadia was informed by a nurse or physician's assistant that W.G. had been diagnosed with a severe laceration of the flexor tendon of his right thumb. Rather than indicating that he would come to the emergency room to assess the patient, Dr. Ovadia ordered a pressure bandage to be applied to W.G.'s hand and that W.G. be told to come to Dr. Ovadia's office the next morning for follow-up. Although Dr. Ovadia did not come to the hospital to clean and "drain" the wound, or order staff to do so,2 it was reasonable for him to have assumed that the wound had been cleaned by the emergency room staff,3 as it had been, and there was no medical need to drain the wound because it was an open wound.4 Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the unidentified emergency room physician who was treating W.G. at the time. Dr. Ovadia was, therefore, telephoned "several"5 more times. The evidence failed to prove clearly and convincingly that Dr. Ovadia was specifically requested to come to the emergency room to attend to W.G. or that he refused any request to come to the emergency room to take over the care of W.G.6 Despite the failure of the evidence to prove that Dr. Ovadia refused to come to the hospital to treat W.G., it is clear that Dr. Ovadia did not come to the emergency room to assess W.G.'s condition. Instead, at 10:55 p.m. (2255 hours), apparently after the last of the "several" calls made to Dr. Ovadia, Dr. Ovadia ordered that W.G. be admitted to the hospital. Although the medical notes indicate that Dr. Ovadia's orders at 9:55 p.m. were not acceptable to the emergency room physician, there was no evidence to prove why his or her orders were considered unacceptable. The evidence also failed to prove that the emergency room physician's displeasure with those orders was ever reported to Dr. Ovadia or that the emergency room physician was so displeased that he or she personally contacted Dr. Ovadia to discuss the situation. The only direct evidence, which is uncontroverted by the Department, concerning the dispute between Dr. Ovadia and the emergency room on August 21, 1997, came from Dr. Ovadia. Dr. Ovadia believed that the emergency room physician, upon determining that W.G. had suffered a laceration to the flexor tendon, believed that Dr. Ovadia should attend to the injury immediately. Dr. Ovadia, however, realized that immediate attention to the flexor tendon injury was not advisable or necessary until at least the next morning. Dr. Ovadia's opinion about the lack of need for immediate attention to the flexor tendon laceration was agreed with by all of the physicians who testified in this matter. The medical records do not include an order from Dr. Ovadia to debride the wound, regardless of the proper definition of the term, and Dr. Ovadia admits that he did not give such an order. W.G. left the hospital at approximately 11:50 p.m. (2350 hours).7 W.G.'s hand was ultimately repaired a few days later at another hospital. Allegations of Wrongdoing Concerning W.G. In Count One of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.G. in that he failed to do the following specific acts: come to the hospital to personally examine or treat Patient W.G. on or about August 21, 1997; clean and drain Patient W.G.'s lacerated thumb; or order that other hospital personnel clean and drain the laceration. The Experts' Opinions; The Standard of Care At least five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of W.G. None of the five physicians were consistent; not even the two experts called by the Department, Steven Lancaster, M.D., and Frank Cook, M.D. Dr. Lancaster opined that the appropriate Standard of Care for the treatment of W.G. was: An open fracture with a dirty wound would generally be treated by a reasonable orthopedic surgeon in a similar situation by some type of irrigation [cleaning] and debridement to minimize the chances of infection occurring at a later point. To address the flexor tendon on a delayed basis is reasonable, and as well to address a fracture on a delayed basis is reasonable. But the open wounds [sic] having not been irrigated, debrided, or assessed until the following day would be unacceptable. Petitioner's Exhibit 1, Page 14, Lines 1-9. Dr. Lancaster goes on to opine that Dr. Ovadia failed to meet this Standard of Care by failing to go the hospital to assess, irrigate [clean], and debride the wound. Id. Dr. Cook, opined that the appropriate Standard of Care for the treatment of W.G. was: . . . . Essentially in the W.G. case my opinion would be the correct treatment would be to debride and clean the wound, and to close the skin. Appropriate antibiotics and appropriate prophylactic for tetanus. Transcript, Volume 1, Page 95, Lines 5-9. Dr. Cook agreed that the foregoing Standard of Care for W.G. had been met in all respects except that the skin over the wound was not closed: If you have an exposed flexor tendon, I think you need to close the skin over that for the simple reason of what we discussed. . . . The tendon is much healthier with the skin closed. It doesn't dry out. Transcript, Volume 1, Page 137, Lines 12-17 Dr. Cook, while he discussed Dr. Ovadia's responsibility for making sure W.G.'s wound was cleaned,8 ultimately concludes that it is only the failure to either close the wound himself or order that someone in the emergency room to do so that constitutes a violation of the Standard of Care: Q Is it your testimony that Dr. Ovadia fell below the standard of care because he did not come to see [W.G.] between 10 and 12:00? A No, ma'am. Q I guess when all is said and done, the remaining criticism of Dr. Ovadia is that he did not temporarily close this wound? A That the skin was not temporarily closed either by himself or one of the staff members. (Emphasis added). Transcript, Volume 1, Page 141, Lines 12-20. Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to irrigate or clean the wound is not supported by Dr. Cook's opinion. Ultimately, Dr. Cook opined that Dr. Ovadia was not required to go to the hospital, but that any treatment necessary for W.G. could have been ordered by Dr. Ovadia. Dr. Cook ultimately opined that the only treatment required for W.G. which was not provided was the closure of the wound, not the cleaning of the wound. As to Dr. Lancaster's opinion that Dr. Ovadia violated the Standard of Care by not going to the hospital to "debride" the wound, this opinion is also contrary to Dr. Cook's opinion for the same reasons stated in Finding of Fact 32 and, more importantly, is contrary to any allegation in the Administrative Complaint. There is simply no allegation in the Administrative Complaint that Dr. Ovadia violated the Standard of Care by failing to "debride" the wound. Finally, as to the allegation that Dr. Ovadia violated the Standard of Care by failing to go to the emergency room to "assess" W.G., as opined by Dr. Lancaster, this opinion was also contradicted by Dr. Cook. Dr. Cook did not agree that it was necessary for Dr. Ovadia to go to the hospital for anything, even the one error in treatment Dr. Cook believes Dr. Ovadia made: failing to close the wound. While Dr. Cook opined that the wound should have been closed, he was of the opinion Dr. Ovadia could have met this responsibility by either going to the hospital or by giving an appropriate order. It cannot, therefore, be concluded that Dr. Ovadia was required to go to the hospital for any purpose. Finally, although Dr. Cook's testimony about the need for the wound to be closed was convincing, the Administrative Complaint does not contain an allegation that Dr. Ovadia failed to meet the Standard of Care for failing to ensure, personally or through an order, that the wound was closed. The evidence failed to prove that the Standard of Care for the treatment of W.G. required that the wound be "drained." The evidence failed to prove that Dr. Ovadia's treatment of W.G. violated the Standard of Care as specifically alleged in the Administrative Complaint. Treatment of Patient F.S. On the same night that W.G. presented to the emergency room, August 21, 1997, another patient, F.S., a 26-year-old male, also arrived. F.S. was first seen in the Homestead Hospital emergency room at approximately 6:51 p.m. (1851 hours). F.S. had a 6-centimeter razor knife cut across the palm of his left hand. The cut occurred when F.S. fell from a ladder with the razor knife in his hand. The wound was not limb- or life-threatening. F.S. was first seen by Jim Long (hereinafter referred to as "PA Long")9, a physician's assistant in the emergency room. According to PA Long's notes, the bleeding from F.S.'s hand was "uncontrollable". This note, however, conflicts with the emergency room nurse notes, which indicate that, upon his arrival, F.S.'s "bleeding ha[d] stopped." Based upon the weight of the evidence, it is concluded that the nurse notes are correct. The nurses were more likely the first to see F.S. and note his condition, the note is time specific, indicating that the bleeding had stopped "when he came in" and the note appears just before the first time specific entry of 7:15 p.m. (1915 hours). PA Long's notes on the other hand are not time specific until his note of 9:40 p.m. (2140 hours). F.S. was given IV antibiotics and a shot for tetanus. At approximately 7:15 p.m. (1915 hours), F.S. was "set up for suture . . ." by PA Long. Although there was no indication in the notes as to whether the wound was bleeding at this time, logic dictates the conclusion that it was not bleeding, since PA Long was attempting to suture the wound. At some time during the suturing process, the wound began to bleed uncontrollably. As of approximately 7:45 p.m. (1945 hours), PA Long was "unable to stop bleeding." Once the wound began to bleed, it is likely that pressure was applied to it in an effort to stop the bleeding. These efforts were, however, unsuccessful. Consequently, Dr. Ovadia, who it will be recalled, was the on- call orthopedic surgeon the night of August 21, 1997, was called for a consultation. At some point after PA Long attempted unsuccessfully to suture F.S.' wound, a Dr. Sission,10 who was one of two physicians who saw F.S. in the emergency room, discussed the case with Dr. Ovadia. PA Long's note concerning this call indicates that the time of the call was either 8:40 p.m. (2040 hours) or 9:40 p.m. (2140 hours). The evidence failed to prove what the nature of this telephone conference was. In particular, the evidence failed to prove whether Dr. Sission requested that Dr. Ovadia come into the emergency room to assess and treat F.S. or whether he was satisfied with Dr. Ovadia's response. At approximately 9:45 p.m. (2145 hours), at least two hours after the wound began to bleed uncontrollably, PA Long spoke to Dr. Ovadia. The nurse's notes indicate that the conversation took place at 9:55 p.m. (2155), the same time noted in the notes concerning W.G. that Dr. Ovadia was telephoned about W.G. Dr. Ovadia indicated that he did not want to come to the hospital to see F.S. Instead, he ordered that a pressure bandage be applied and that F.S. be instructed to see Dr. Ovadia in his office in the morning. Dr. Ovadia's order at 9:45 p.m., like his order with regard to W.G., was not acceptable to the "ER physician" treating F.S. at the time. Dr. Ovadia was, therefore, telephoned "several"11 more times. Although the evidence failed to prove that Dr. Ovadia was specifically requested to come to the emergency room to attend to F.S., the evidence did prove that Dr. Ovadia refused to come to the emergency room to take over the care of F.S.12, and that Dr. Ovadia did not in fact come to the emergency room to assess F.S.'s condition. Instead, at 10:55 p.m. (2255 hours), the same time he ordered W.G. admitted to the hospital, Dr. Ovadia ordered that F.S. be admitted to the hospital, despite the fact that it had been three hours since the wound had begun to bleed again. Unlike W.G., during at least one of the follow-up calls to Dr. Ovadia, Dr. Ovadia was told that emergency room staff did not believe that applying a pressure bandage was adequate. Because pressure had been applied after the wound began to bleed without any apparent effect and because the emergency room personnel were concerned that F.S. had cut part of one of the arteries in his hand, the emergency room staff told Dr. Ovadia that his orders were not sufficient. See Dr. Cook's testimony at Lines 3-12, Page 102, Transcript, Volume 1. F.S. left the hospital at approximately midnight.13 Allegations of Wrongdoing Concerning F.S. In Count Two of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating F.S. in that he failed to do the following specifically alleged acts: come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997; or stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm. The Experts' Opinions; The Standard of Care Again, five physicians, including Dr. Ovadia, testified concerning the appropriate Standard of Care required in the treatment of F.S. As was the case with the experts' testimony about the Standard of Care for W.G., the five physicians who testified about F.S. gave inconsistent testimony. Unlike the testimony concerning W.G., however, the testimony of the two experts called by the Department, Dr. Lancaster and Dr. Cook, was consistent to the extent they testified about at least one of the specific acts alleged in the Administrative Complaint (paragraph "a." quoted in Finding of Fact 49, supra. Dr. Lancaster opined that Dr. Ovadia violated the appropriate Standard of Care for the treatment of F.S.: Q Could you please express you opinion as to this case? A My opinion is that Dr. Ovadia, as the orthopedic surgeon that was contacted being on-call for a hemorrhaging laceration, fell below the standard of care by not coming to the hospital to assess that or take appropriate actions to treat that. Q And why would you believe it necessary to come to the hospital to see this patient? A My understanding of the injuries were that this was a knife wound to the palm with arterial-type bleeding that the emergency room physician had assessed and did not feel comfortable with for fear of continued hemorrhage. That would represent potentially a case where an individual could bleed out from a wound like that. Most of those do not. But the idea would be that this would need to be assessed by someone with more specialization than the emergency room physician to make a decision whether this should be repaired, not repaired, or what direction they should take. By failing to come to the hospital when asked as an orthopedic surgeon on call, this could then fall below the standard of care. Petitioner's Exhibit 1, Page 16, Lines 16-25, and Page 17, Lines 1-10. Dr. Cook opined the following concerning the appropriate Standard of Care for the treatment of F.S. and Dr. Ovadia's failure to meet that Standard: Q We'll go into detail, but at this point, were you able to formulate a medical opinion [concerning F.S.]? A Yes. . . . . Q What would that opinion be? A My opinion was that the emergency room felt uncomfortable dealing with this patient injury. It was their opinion that he cut part of, one of the arteries in the hand. It's called the distal palma arch. It's part of that arterial circulation in the hand. And despite putting pressure dressings on it, they still felt uncomfortable that the bleeding was [un]controlled. That's why the numerous phone calls requesting orthopedic back up or assessment were requested. Transcript, Volume 1, Page 101, Lines 22-25 and Page 102, Lines 1-12. While Dr. Ovadia's expert witness, Jorge Obray, M.D., disagreed with the ultimate opinions of Drs. Lancaster and Cook concerning whether Dr. Ovadia met the Standard of Care with regard to F.S., he did so essentially because of his conclusion that there was insufficient time before Dr. Ovadia should have realized that he should come in to assess and treat F.S. and when F.S. left the hospital. Dr. Obray did agree, however, that, if the bleeding had not been stopped by a pressure bandage within an hour, Dr. Ovadia should have come in and dealt with the patient: Q How long would you expect to wait until the bleeding stopped? A When I use a pressure dressing, I put them for one hour, take them off and see if it stops bleeding. If it stops bleeding, I put a lighter dressing on it and they go home. Q And if the wound for some reason did not stop bleeding, what would be your opinion of treatment then? A Well, then I could have to come in and actually myself do something to stop the bleeding, which usually means put a suture on the arterial arteries, ligate the arteries to control the bleeding. Respondent's Exhibit 4, Page 24, Lines 1-14. This opinion is not inconsistent with the opinions expressed by Drs. Lancaster and Cook. Dr. Cook also agreed that waiting an hour after applying a pressure bandage would not be unreasonable: Q How soon would you have expected [Dr. Ovadia] to come in once he was first called in this case? A With the bleeding hand I think an hour's time is not unreasonable. Transcript, Volume 1, Page 150, Lines 1-6. The difference in the ultimate opinion of Dr. Obray and the ultimate opinions of Drs. Lancaster and Cook is due to Dr. Obray's conclusion that insufficient time had passed between the time Dr. Ovadia ordered a pressure dressing and when he would have been expected to come see F.S. Dr. Obray's factual distinction is not, however supported by the record. Dr. Ovadia knew that F.S.'s hand was bleeding for over three hours when he ordered F.S. admitted to the hospital and it was another hour after that before F.S. left the hopsital: 7:45 p.m.: F.S. began to bleed and unsuccessful efforts were made by the emergency room staff to stop the bleeding; 9:55 p.m.: Just over two hours after F.S.' hand began to bleed, Dr. Ovadia was informed of the situation. Dr. Ovadia ordered a pressure bandage; 10:55 p.m.: During the hour after Dr. Ovadia ordered a pressure bandage, and more than three hours after the bleeding started, "several" calls were made to Dr. Ovadia. Concern over Dr. Ovadia's order to apply a pressure bandage were related to Dr. Ovadia. Dr. Ovadia ordered F.S. admitted; and 11:55 p.m.: Finally, although the evidence failed to prove whether the bleeding stopped at some time after 10:55 p.m., an hour passed before F.S. left the hospital. Based upon the foregoing, and the consistent opinions of Drs. Lancaster and Cook, it is concluded that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "come to the hospital to personally examine or treat Patient F.S. on or about August 21, 1997, as alleged in the Administrative Complaint, subparagraph "a." quoted in Finding of Fact 49, supra. The evidence failed to prove, however, that Dr. Ovadia violated the Standard of Care in his treatment of F.S. by failing to "stop the uncontrollable bleeding from the wound on Patient F.S. [sic] palm." No expert opinion to support such a finding was given in this matter. Treatment of Patient W.L. On October 5, 1997, patient W.L., a 52-year-old male, was brought to the emergency room of Homestead Hospital at approximately 5:34 p.m. (1734 hours). W.L. had been involved in a severe motorcycle accident and was in a great deal of pain when he arrived. He had suffered multiple injuries, including a limb-threatening open posterior compound dislocation of his right elbow. The injury was serious and required reasonably expeditious treatment. Dr. Ovadia was the on-call orthopedic surgeon at the time of W.L.'s arrival. Dr. Ovadia was in an operating room performing surgery on another patient when he was informed of W.L.'s condition. After completing the surgery, Dr. Ovadia examined W.L., ordered that he be given pain relief medicine, and recommended immediate surgery for W.L.'s dislocated elbow, to which W.L. gave verbal consent at approximately 7:45 p.m. (1945 hours). Dr. Ovadia arranged for the necessary surgery personnel and waited while Leonard D. Benitez, M.D., the on-call general surgeon, was contacted for clearance of the surgery. W.L. was reported in the Emergency Department Nursing Assessment form to be resting comfortably as of 9:00 p.m. (2100 hours), which was about the time that Dr. Benitez finally arrived at the hospital. Dr. Benitez, Dr. Ovadia, and W.L. came together in the CT scan room. A verbal altercation then ensued, between Drs. Benitez and Ovadia, which ended with Dr. Ovadia leaving the CT scan room. Claudette Pinto,14 the nurse supervisor that evening, left the CT scan room with Dr. Ovadia. Ms. Pinto told Dr. Ovadia that she would contact "administration to report the verbal altercation."15 Dr. Ovadia went to the lounge to wait for Ms. Pinto to report back. After waiting in the lounge without any word from Ms. Pinto, Dr. Ovadia contacted Ms. Pinto, who told him that she had called Dr. Russell, the Chief of Surgery for Homestead Hospital and reported the incident. Ms. Pinto told Dr. Ovadia that Dr. Russell was dismissing him from the care of W.L. and that W.L. would be transferred to another hospital for orthopedic care.16 At 9:30 p.m. (2130 hours), Dr. Ovadia spoke with Dr. Russell to confirm Ms. Pinto's message. Dr. Russell confirmed Ms. Pinto's report: Dr. Russell dismissed Dr. Ovadia from further care of W.L. and took over responsibility for arranging for W.L. to be transferred to another hospital.17 Following his dismissal from the care of W.L. by Dr. Russell, Dr. Ovadia left Homestead Hospital and went home. Although his care of W.L. had been terminated by Dr. Russell, his on-call status had not been. Dr. Ovadia, therefore, remained on-call. Emergency room staff were eventually instructed to contact Dr. Ovadia to ask him whether he "would like to resume care of W.L."18 Dr. Ovadia was first contacted by emergency room staff after being dismissed from W.L.'s care and being informed that W.L. would be transferred to another facility, at approximately 11:35 p.m. (2335 hours). This telephone call came approximately two hours after Dr. Ovadia had been dismissed by Dr. Russell. Dr. Ovadia was offered the opportunity to resume care of W.L. Dr. Ovadia informed whoever made the telephone call that he could not do so because he had been removed from W.L.'s care by Dr. Russell.19 Dr. Ovadia indicated that Dr. Russell would have to instruct him to return. Although Dr. Ovadia was surprised that W.L. was still at Homestead Hospital, he still had no authority to counteract Dr. Russell's orders. At approximately 1:00 a.m. (0100 hours), October 5, 1997, Dr. Russell telephoned Dr. Ovadia, as requested. Dr. Russell asked Dr. Ovadia if he would like to resume care of W.L., to which Dr. Ovadia responded "no." Dr. Russell did not tell Dr. Ovadia that he was being reassigned to W.L.'s care or that Dr. Russell no longer planned to transfer W.L. to another facility. At 1:40 a.m. (0140 hours) a nurse's note indicates that Dr. Ovadia was "contacted again [apparently by Dr. Russell] regarding Pt acceptance. Pt was not accepted by Dr. Ovadia." [Emphasis added]. Between the 11:35 p.m. and the 1:40 a.m. nurse's notes and after the 1:40 a.m. note, there follows a series of notes, all of which report the status of W.L., which Dr. Ovadia remained unaware of, indicating the confusion caused by Dr. Russell's decision to transfer W.L. to another facility, describing the ultimate frustration of the emergency room nursing staff, and explaining the ultimate problem with caring for W.L., the inability to obtain insurance authorization for his care:20 0005 Dr. Benitez signs admit orders for Homestead hospital if procedure for ortho surgery can be performed at Homestead hospital . . . . 0020 Awaiting instructions concerning pt transfer or admit instructions. Pt resting comfortably still on spine board. IV intract f/owing KVO . . . . 0200 Pt resting comfortably, multiple facilities, multiple physicians contacted. No admit, no transfer, no surgery, no change in status of Pt care. 0220 . . . . No change in transfer admit status. . . . 0300 . . . No status change regarding admit transfer status. . . . 0325 Finally!! Admit orders provided by Dr. Benitez by telephone. . . . 0331 Pt to be transferred to ICU WEST 3 . . . . 0325 HMO Primary Care provided Dr. Orlando Arana gave authorization for Dr. Benitez to admit patient to Homestead Hospital. 0410 . . . Pt will be physically transferred when bed has been cleaned. . . . . . . . 0530 Pt transferred to hospital bed for comfort. . . . Petitioner's Exhibit 2, Pages 76-77. Although W.L.'s orthopedic injuries, which required immediate care, remained untreated until the day after arriving at Homestead Hospital, Dr. Ovadia's last instruction concerning W.L. was that he was removed from W.L.'s care, that W.L. would be transferred to another facility, and that, if he wished to, he could resume care for W.L., an offer which Dr. Ovadia told Dr. Russell he declined. At no time was Dr. Ovadia informed that Dr. Russell had reversed his decision to transfer W.L. to another facility, even after declining to resume care or that Dr. Russell had not been able to arrange for W.L.'s transfer to another facility. It was not until the day after W.L. first arrived at the hospital that Dr. Ovadia learned that W.L. had not been transferred. Allegations of Wrongdoing Concerning W.L. In Count Three of the Administrative Complaint, it is alleged that Dr. Ovadia failed to follow the Standard of Care in treating W.L. in that: . . . . Respondent failed to come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon. The Experts' Opinions; The Standard of Care Again, the same five physicians testified concerning the appropriate Standard of Care required in the treatment of W.L. As was the case with the physicians who testified about the Standard of Care for W.G. and F.S., the five physicians who testified about W.L. gave inconsistent testimony concerning the Standard of Care. More importantly, the opinions of the experts called by the Department were inconsistent, based upon facts not in evidence, or involved errors in treatment not alleged in the Administrative Complaint. Dr. Lancaster testified as follows concerning the appropriate Standard of Care and Dr. Ovadia's failure to meet it: Q Could you express your opinion as to this case. . . . A I have two opinions in regard to the case. The first is that Dr. Ovadia had a duty to the patient once he saw him to treat him orthopedically. And the only reason that he could be released from that is if there was a transferring orthopedic surgeon, which there wasn't. As such, his removal from the case would fall below the standard of care. In addition, being an on-call orthopedic surgeon and being requested to come to the hospital to take care of an orthopedic problem and not doing so would, likewise, fall below the standard of care. Petitioner's Exhibit 1, Page 4, Lines 13-25 and Page 5, Line 1-2. Dr. Lancaster also opined that it was a violation of the Standard of Care for Dr. Ovadia not to resume care of W.L. because he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital if so requested by the emergency department." Petitioner's Exhibit 1, Page 5, Lines 24-25, and Page 6, Lines 1-2. Finally, Dr. Lancaster opined that Dr. Ovadia failed to meet the Standard of Care because he failed to follow-up on the passing of the care of W.L. to either another hospital or to another physician, an opinion shared by Dr. Cook. Dr. Cook opined as follows concerning the treatment of W.L.: Q What would a reasonably prudent physician under the same circumstances talking about orthopedics in this circumstance, do in that situation; in light of the knowledge of the facts of this case? A It would be my opinion that when you are called the second time at home and the conversation just is somewhat that, gee, we don't have anybody else to take care of this orthopedic problem. It is because it's in the middle of the night or because the guy doesn't have any money, or because it's too complex for somebody else to handle. Then, I think the reasonably prudent physician assistant is trying to find someone else to care for the patient, and failing that I think the ball is still in your court, it's still on your shoulders. Whatever metaphor you want to use, you need to come in and take care of the situation. Albeit, even to say to the patient, look I know this seems very confusing what's going on here tonight, but the gist of the matter is that this injury needs to be cared for immediately, I'm going to take care of that for you and then tomorrow you're going [to] meet Dr. XYZ and he or she is going to care for you the rest of the time. Or you pick up the telephone and you make the telephone calls and you find somebody or you assist in the transfer. (Emphasis added). Transcript, Volume 1, Page 115, Lines 3-25, and Page 116, Lines 1-4. While the foregoing opinion supports the charges of the Administrative Complaint, Dr. Cook goes on to testify on cross examination as follows: My opinion is, and my problem with the case is, who was looking out for the patient? There is no question that Dr. Ovadia had every reason to be upset with the way this case went initially. There was no question he was compromised by the acts of the chief of the staff or the chief of surgery, whatever the case may be, in both, in front of the rest of the staff members in the emergency room, in front of the patient, just in his own ability to take care of the patient. These is no question, I, as a physician, would have been upset by the whole event. And then to get called later that night and they say, oh, by the way, would you mind coming in and taking care of the mess I've made? But at some point in time when we assume the mantel of a physician, we have to assume that we are going to look out for the patient and put our own egos aside -- that may not be the right term here -- and that's what my problem is. Who was looking out for the patient? I don't expect Dr. Ovadia who was not taking care of the patient, but I do expect that he would have gotten on the phone and called his very best friends and said, hey, I got a heck of a problem. I do expect that he could have called another hospital and said the same thing himself, not relying upon the hospital administrator or did not rely on the chief of staff, who has already shown what a problem he was rather than a solution. That's the way I come down. I know there is not textbook that's going to back that up, it's the way I come down to. (Emphasis added). Transcript, Volume 1, Page 166, Lines 7-25, and Page 167, Lines 1-12. Dr. Cook also testified about a number of actions that Dr. Ovadia could have taken. See, e.g., Transcript, Volume 1, Page 117, Lines 1-25. The actions which Dr. Cook testified Dr. Ovadia could have taken were not, however, actions alleged in the Administrative Complaint and, therefore, are not relevant to this matter. The first of Dr. Lancaster's two opinions, quoted in Finding of Fact 75, supra, that Dr. Ovadia was never appropriately removed from caring for W.L., is rejected because it is inconsistent with the opinion offered by Dr. Cook and is not an act for which Dr. Ovadia has been charged in the Administrative Complaint. The second of Dr. Lancaster's two opinions, also quoted in Finding of Fact 75, supra, is rejected because Dr. Lancaster's understanding of the facts was inconsistent with the evidence presented at hearing. Dr. Lancaster testified that it was his understanding that Dr. Ovadia was contacted after he left the hospital and informed that W.L. had been cleared for surgery and, therefore, Dr. Ovadia was being requested to return. The evidence failed to prove that Dr. Ovadia had been relieved temporarily until W.L. was cleared for surgery or that Dr. Ovadia was "requested" to return; rather, Dr. Ovadia was "offered" an opportunity to return. More importantly, Dr. Lancaster's opinion, given its most generous interpretation, is not supported by Dr. Cook's opinion. Dr. Cook, while initially testifying that Dr. Ovadia failed to meet the Standard of Care because he did not come to the hospital and "take care of the situation" (Finding of Fact 78) later testified that Dr. Ovadia failed to meet the Standard of Care because he failed to arrange for W.L.'s care, an action which did require Dr. Ovadia to come to the hospital (Finding of Fact 79). Therefore, to the extent that Dr. Lancaster opined that Dr. Ovadia should have come to the hospital, Dr. Cook ultimately retreated from such an opinion. As to the opinion of Drs. Lancaster and Cook that Dr. Ovadia failed to meet the Standard of Care by failing to ensure that another hospital or, more particularly, another orthopedic surgeon, had assumed responsibility for W.L.'s care, while their opinions were consistent and credible, their opinions relate to an error in treatment not alleged in the Administrative Complaint. This opinion cannot, therefore, support a finding that Dr. Ovadia failed to meet the Standard of Care in his treatment of W.L. in this proceeding. Finally, Dr. Lancaster's opinion that Dr. Ovadia failed to meet the Standard of Care because he did not resume care of W.L. even though he was "an on-call physician, who [was] required to take care of any orthopedic problems at the hospital . . . " must be rejected for two reasons: first, this opinion was not supported by Dr. Cook's opinions; and, secondly, and more importantly, this alleged error in treatment is not alleged in the Administrative Complaint Based upon the foregoing, it is concluded that the evidence failed to prove that Dr. Ovadia failed to meet the Standard of Care because he "failed come to the hospital on or about October 6, 1997 at approximately 12:30 a.m. to reassume care of Patient W.L. after the patient was cleared for surgery by the general surgeon." Conclusion. The weight of the evidence in this case proved that Dr. Ovadia violated the Standard of Care as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint. The evidence failed to prove clearly and convincingly that Dr. Ovadia violated the Standard of Care as alleged in Count One, subparagraph 21.b. of Count Two, or Count Three of the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Joseph Ovadia, M.D., has violated Section 458.331(1)(t), Florida Statutes, as alleged in subparagraph 21.a. of Count Two of the Administrative Complaint; dismissing Count One, subparagraph 21.b. of Count Two, and Count Three of the Administrative Complaint; issuing a Reprimand to Dr. Ovadia; requiring the payment of a $5,000.00 administrative fine within a reasonable time after the Final Order is issued; placing Dr. Ovadia on probation for a period of two years; and requiring that Dr. Ovadia attend ethics courses relating to the practice of medicine as directed by the Board of Medicine. DONE AND ENTERED this 10th day of March, 2003, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 10th day of March, 2003.
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (“Agency”) regarding Petitioner, ORLANDO HEALTH, filing a Petition and a request for a Formal Hearing at the Division of Administrative Hearings to review the Agency decision approving Adventist Health System/Sunbelt Inc. d/b/a Florida Hospital’s request for a CON to establish a pediatric cardiac catheterization program and supporting the Agency’s_ preliminary denial of Nemour’s Foundation’s request for a CON to establish a pediatric cardiac catheterization program, both of which would be located in District 7 Orange County, Pediatric Cardiac Catheterization Planning Area 4. Filed January 14, 2011 QJ Division of Administrative Hearings Subsequently, on December 3, 2010, Orlando Health filed a Notice of Voluntary Dismissal in DOAH Case Nos. 10-9382 CON and 10-9384 CON regarding the above referenced matter, at the Division of Administrative Hearings. On December 6, 2010, the Hearing Officer at the Division of Administrative Hearings, closed the above referenced file based upon Orlando Health's Notice of Voluntary Dismissal filed in DOAH Case Nos. 10- 9382 CON and 10-9384 CON and further entered an order of severance from the other consolidated cases so that an Order Closing File could be entered in those specific cases only. IT IS THERFORE ORDERED AND ADJUDGED THAT: 1. That the petition filed by Orlando Health is dismissed. 2. That the above styled cases are hereby closed DONE and ORDERED this _/?—day of Lib haetieep 2011, in Tallahassee, Florida. Elizabeth Du AGENCY FOR , Interim Secretary ALTH CARE ADMINISTRATION
Conclusions Having reviewed the Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review, dated May 12, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. 1 Filed July 10, 2009 2:23 PM Division of Administrative Hearings. DONE and ORDERED this _f_day of _ ,,_of""""--"'"""'"-l""""A-'-t_f , 2cf.i inTallahassee, Leon County, Florida. Holly Benson, ecretary Agency for He th Care Administration 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. Copies furnished to: Stephen T. Maher Shutts & Bowen LLP 201 $outh Biscayne Boulevard Suite 1500, Miami Center Miami, Florida 33131 Jamie L. Jackson Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Karen Rivera Agency for Health Care Administration Laboratory Unit Manager 2727 Mahan Drive, Bldg #3, MS #3 Agency for Health Care Administration Tallahassee, Florida 32308 2727 Mahan Drive, MS #28 (Interoffice Mail) Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the _._8:,.._P_day of-=:......-.--=-""-7-·....,,,. '-----' 20 g:- -- Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 To:RS09210158 CHARLIE CRIST GOVERNOR Mi,y 1l, 2009 ADMTNTSTR.ATOR B1HMf HHlth care for.,,Flor'ltlltms MOU.Y BEN50N SECReTARY CEKTlPIBD MAll. / RETURN R.ECEW'r Rl?Q STED 'PETER M WALLACH AND ST·TART F TOP.PER MOS PA 1480 N UNIVERSllY DRIVE COP.AL SPR.INGS, E'L 3307 l LlC:f.NSE NUMBER: 800004917 CAS£ #: 200900.5482 !i()J'JC& a,ViUNT TO pEEM Al'fUCA:rJmr,,lX,COM1"1.V.Il., 'ND wrrlJDBAl»'ll fRQM FURTHER gvur.w or Your tappJIClltlan for license is d.:cmod lncompleto and wlthdrnwn ftom further consideration punnuu,t 10 SQQllon 408,806(3)(b), Plorida St11-Mea, wJii\;b i1litll¢8 that "Tteque vd informition omiHod from an 11ppllc•tk,n for Uccnsure, license renewal, or obnn1io ownership, other than an lnspectjon, must be.fll•d wilh the a cncy within 21 do.y, after the llSCDcy'1 rcqu fi:il' Qmltted inform11tion or tho oppllcadon shall be deemed incomplete and shitll be withdrawn from further oon,idonition llnd the f,ot sh•ll bo forfoi d' '. You were notified by c:orrcq,o"d11m:111 dntod Fobruar)' 28, 2009 to provide furthar infonnat1o11 nddrol\ ing identified appt1rcnt c1Tnr11 or ,'lmlsslont within twenty-one da.)'I trc,m &he rcoelpt of the Agency's correspondence, Our rec:ordl lndlc1110 you received this cornr11pondcncc: by certified mllfl on Murch 09, 2009. A11 this requested Information wa. not timcl)' received by tho Agency, your application is dc:c:mcd Incomplete and withdmwn C'l'oTTI further uonsidcnuion, TI1e ou'tt)IAl\dll\Q h1sue1 rornalnlng for liconsure are: Corrected LIit ofTU!lts Performed: Tbe Pl'Clflclcney TtJstlng Comp ¦11)' Ji11red I• not CLIA approved, ·-·· .. EXPLANAJJOJ! OF RlGWl'S l'ursuant to Section 120.S69, F.S., you h1n1c the rlgt11 to rcquost ,in 1.1dn1iuilllfAtfvc bc:arins, .(n or(J¢r to obtidn a formal proc;aodina before tho Di'lision of Admlnlstrn\.lvo 'Htorin under Section 120.57(1)1 P.S., your rcq1,1 1t for on administrative hearin11 musr i.:onronn to·m requfre1no11t.li in Seotlon 28-106.%0 I, FlorldA MminlNtr'o1tiYC Code (F.A.C), nnd must state tho material fru;ts you dispula. ION AND EXPLANATION OF RICRTS IORMS. Katen Rivera, Manaa r r :.bomtory LicL.'JldUrt: U11it l.)C: Agit,1.;y Cl\lrk, MBil Stop j Legal Lnt ¢ Unit. Mnll Stop '.l T:u1an11111, Plorida 32305 Z7:z7 M11han Oriv,,MS#U Certified Adidti Nun1bcr SENDERS RECORD 111111· 1/lhCI.myflcirld•. i:cim • Vi:rn Ai'iCA !lrtllno II\ EXHIBIT I ( JUN-05-2009 16:40 From: To:9509210158 STATE OF FLOlUl)A AGENCY FOR HEALm CARE ADMlNlSTRATION RE: Pc,tor M Wall11c:h And Shari F Topper Mds P11 CASE NO: 2009005482 El,.RCTION OF RIGHTS Thill Jlh;:cti9n of Rishta form Is attaohed to II proposed Noti of lntont to Dcein Inc:omploio Rlld Withdraw fl-0111 Purther Rt!Vlew of the Agency for Hoslth Care Admi11istration (AHCA). Tua lltlc may be Nottcc ot lnlenc fO Dc:orn Incompluto and Withdraw from P'arthor Rcwlow or ,nmo otbcr notice vr •ntondcd adlon by AJiCA. An £1,sdpp oflUc,ltM muu be rclyrnecl hyJDBll or by fqr \Y.i!Jlln 21 de:m or the dg YOU rn:eh,e lhJ iHtaehefl rfgtlt:e o( Jntent to peom Tnenm111.11,s ¦qd WltLdraw,,.ftpm fynher Reylm or pny nrJ,sr PDIURl d gctJon h,y ARCA. If' an Rleclkn1 g{ Rigg with )'OUI' IClecmtd optJon i, not nctlvccl by ,'\HCA within twenty.one (21) dn)'S from the dato you rocoivcd d1i1 notice of propo_.d ac;t(Qn, you will havo given up your right to t1on1.esr rhe Agenc)''III proposed agtlon amd w ti1111l ordorwfll b,:1,.ued. (PlciU$a n::J)Jy using thi, B)ccti,:1n qf Rjght, fnnn unless you.)'Our attorney er your roprosentBtiv prc:rcr io reply ncc:ordlna to Chapter 120, Florida Statutes (2006) lllld .Rul, :28, Florida Administrative Cod ¦.) Plcase return your EL6C',CIQN 9.FRIQHTS to: Agency for HCA!th Administration AL1QnUon: Agency Clt::rk 2727 Mahnn Drive, Mail Slup N3 T•llahusao, Florida 32308 Phon,:: (8SO) 9ll-:B73 Fax: (850) 921·01S8 'PLM S.W...F-.c:r QNLY 1 op TI:JESE 3 OPTIONS, Ol''l"lON ONE (I.) I admit to tbe aJltptlons of facts and law contutned 11- tbo Notlee ofintcnt to DCIClm lncontpleta abd Withdraw from Furth•.- Rovti!W. o, other notice ot lnte•dod acdun by ABCA aad I waive my rli:bt to object and bavi, a hcnrln1, I 1.tndermnd that by Jiving up my rigbt lO A h•ring, a tlnal order will be 1,,cued that adopts tbc prop0scd agency nction and impoao11 the: proposed pcn11lty, fine= or nction. OP'flON TWO (2) I 11dmit to tha allcuation1 or taotl tOJ1C1ln111d In tbc N1,1Uce ur lnt.:Pt to 0111-,sn lnaompl"to 11.,d.Wllhdraw rrom 11'ut111or Rovlew, or olbcr propoKd aetfoa by AHCA, but I w,,h to be bcurtl at 011 Informal prooeeclln1 (pursuant to Se<:tion 120.57(2), f'luridA Statute:1) where I mtiy submit testimony and wtincn cvld nce to tbc Agency tu shuw t..hat the proposed administrative llC: ion i, too 11cverc or that Lhc floe sbou Id bv roduccd. OPTION 1".l-lltf:E (3) _ - I cU11p11te the ancsatloo» uffatt contained In tho Notice otlntont fo Ocam I11completo •nd Wlthdnn, fmrn Further luview or other proposed acdoo by AHCA, And I r1:q11est a tormal hearing (pursuant to Sc:ctiun 120.57(1). Floridn Statuto1) before an . Adminis1ntlvc Law Judge l\J)pointed by the Divlsil)n of Administrative Hc11rin1:s, fl.,lliASE,.NOTE: Choo11in1 OPTIOii THREE (3), by i oit, l» u9-I tufflclcnt to obtain n f1mr..aJ hcarlni;. Yuu ahm mu t nte II writtan petition in order to obtnin a formal hc11ring before tho ...,... ., · - _,.. -' .. ,- = ••n?:. ,_ U.nr:... ......,4,.,. c:.. 1-..,..,.tfn" 1')0 <i7f1' f.'lnl'l.-fn L'\tUtell. It must be JUN-05-2009 16:41 From: To:8509210158 P.17,,.17 recelv(:d b)' the Agency Clerk ut tha address above within 21 clllys o( receipt or lhls proposed adminislrutivc aotlon. The roqut:u1L for rorrnal h rlng m1Jsl. cottform tc;, thi: requirements of Rule lR- 106.201. Florida Administrntivc Code, which willim lhat it contnin: l. The T!M1\: and addre'5 of coch agi;noy llfl'ect(:d ond each agency's 1tfe or ldi,ntJfielldon nurnbor. If known: Your numc, addn1111, and telephone numoor, 111td th nimc, uddrcs!I, and telephone number of )'Our rcpti,acntativo or l1twyor, If any: An 9pJanation of how yoUl' sub1tantl11I Interests will be affected by Ihc Agency's proposed action; A statement of when and how you rccoivod notice ot'tho Agency's proposed action: A statement of tlll disputed issues of nmwria1 fact, If there arc nunc, you must s111tc that thon:t arc none; _ A concise statement of me ultimate f111:1:S allc9cd. including the specific facts you contend wnmint rav rsJl or modi.flcatlon of the Aaency's proposed nclion; · A 6tati:nient of the spc:oific rules or su.tu.tcs )'OU c;lnlm require ri:,vorsal or modlflcAtion of the Agcn )"I proposed aotlon; and A 1tfttcment of the r¢lli=f yo1,1 are sceklns, stating ex.,ctly what uc.tion you wi1h th Agcnt:-y to take with respeet to It., proposed 11otion. (Medl11tlon under Section 120.S73, Florida. Statutes. may bo avaUablci in thill matter If the Agen y agrees,) License type: clinical laborntocy T..iccr.is= number: 800004917 Lfccn cc Nnme: Peter M Wallach And Shari F Topper Meis Pn Contact l)crson: ·------ Name 'i'itle Ad Ms:. _ Streot and numb(tt' -··· ··clty Zip Code Telephone No. Fax No•. Email (optional). _ 1 hereby eortify that J. pm duly authQTl d ro submit this Notice of Election of Righis to the Agency for Meahh Caro Adrninhitmtlon on behalf of th lictn$eo referred to 11bova. Signed; Dat9; Print Namo:. 'rittc: ·------- USPS -Track & Confirm Page 1 of 1 Hl2trul I t.il.lJI I SlgnJn Track & Confirm Search 'Results Label/Receipt Number: 7180 390198481045 5162 Service(s): Certified Mall"' Status: Delivered Your item was delivered at 12:27 PM on May 18, 2009 in MIAMI, FL 33144. Detailed Results: Delivered, May 18, 2009, 12:27 pm, MIAMI, FL 33144 Notice Left, May 15, 2009, 11:22 am, MIAMI, FL 33144 Jrack & Confirm •!!i_ o.nQp i ..._ _ Track & Confirm by email _ _ _ Get current event information or updates for your Item sent to you or others by email. (oii> ) Return Receipt (Electronic) Verify who signed for your item by email. (iii) ,..,,.,. f.;f<" I:lll!!!ll. Pdyat:y Polk:y Terms of Us uslness customer GatewllV Copyright© 2009 USPS. All Rights Reserved. No FEAH Act EEO Data FOIA { 1\i t1! f. •"ti(:1•:: 1\: "1·'<'• -1 t'. h••'.J. • http://trkcnfrml.smi.usps.com/PTSinternetWeb/InterLabelinquiry.do 05/19/2009 STATE OF FLORIDA
Conclusions THIS CAUSE comes before the Agency For Health Care Administration (“the Agency") concerning Certificate of Need ("CON") Application No. 10202, which was filed by East Florida Healthcare, LLC (“East Florida”), and preliminarily denied by the Agency. 1. East Florida filed Application No. 10202 seeking a CON to establish a 100-bed acute care hospital to be located in Broward County, District 10. 2. On December 10, 2013, the Agency published notice of its decision to preliminarily deny East Florida’s CON Application No. 10202. 3. On December 30, 2013, East Florida filed a Petition for Formal Administrative Proceeding contesting the Agency’s preliminary denial of its CON Application 10202, which was forwarded to the Division of Administrative Hearings (“DOAH”) and assigned DOAH Case No. 14-0126CON. 4. On December 31, 2013, South Broward Hospital District d/b/a Memorial Healthcare System (“MHS”) filed a Petition for Formal Administrative Proceeding in support of the Agency’s preliminary denial of East Florida’s CON Application 10202, which too was forwarded to the DOAH and assigned DOAH Case No. 14-0120CON. Filed February 18, 2014 10:39 AM Division of Administrative Hearings 5. On January 13, 2014, MHS then filed a motion to intervene in the East Florida case, DOAH Case No. 14-0126CON, in support of the Agency’s preliminary denial of East Florida’s CON Application No. 10202. 6. On January 24, 2014, the Administrative Law Judge entered an order in the East Florida case, DOAH Case No. 14-0126CON, granting the motion to intervene and permitting MHS to intervene in the East Florida case subject to the terms of the order. 7. On January 27, 2014, MHS filed its Notice of Voluntary Dismissal of its Petition for Formal Administrative Proceeding in this case. It is therefore ORDERED: 8. The Petition for Formal Administrative Proceeding filed by MHS in this case is dismissed. This Final Order does not affect the intervention of MHS granted in the East Florida case, DOAH Case No. 14-0126CON. ORDERED in Tallahassee, Florida, on this / 7 day of Pela auss} , 2014. Deectete_ Elizabeth DuWek, Secretary Agency for Health Care Administration
