author: TORPY, J. SAWAYA, J.,

text:
    Bethany WEEKS, as Personal, etc., Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL, etc., et al, Appellees.
    No. 5D05-4119.
    District Court of Appeal of Florida, Fifth District.
    Jan. 31, 2008.
    Rehearing Denied April 2, 2008.

      Philip M. Burlington of Burlington & Rockenbach, P.A., and David J. White of Searcy Denney Scarola Barnhart & Ship-ley, P.A., West Palm Beach, for Appellant.
    Wilbur E. Brewton and-Kelly B. Plante of Roetzel & Andress, L.P.A., Tallahassee, for Appellee Florida Birth-Related Neurological Injury Compensation Association.
    Henry W. Jewett, II, and Jennings L. Hurt, III, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appel-lee/Intervenor Orlando Regional Healthcare System, Inc., d/b/a South Seminole Hospital.
    Thomas E. Dukes, III, and Ruth C. Osborne of McEwan, Martinez & Dukes, P.A., Orlando, for Appellees/Intervenors Christopher K. Quinsey, M.D. and Advanced Women’s Health Specialists.
   TORPY, J.

We once again confront the topic of statutory notice to patients under the Florida Birth-Related Neurological Injury Compensation Plan (NICA). The particular question is whether health care providers may invoke the “emergency medical condition” exception to the notice precondition, even though the provider-obstetrical patient relationship had commenced before the onset of the emergency. We conclude that the notice must be given within a reasonable time after the commencement of the relationship and that the failure to do so is not excused by the subsequent emergency. In so holding, we must necessarily recede,, in part, from our prior decision in Orlando Regional Healthcare System, Inc. v. Alexander, 909 So.2d 582 (Fla. 5th DCA 2005).

Following the death of David Weeks from birth-related neurological injuries, his mother, Bethany Weeks, as personal representative, filed her petition for compensation under the NICA plan and asked for a determination of whether the health care providers had complied with the notice requirements of NICA. Appellee, Florida Birth-Related Neurological Injury Compensation Association, responded that it believed the claim was compensable and sought a hearing for a determination of compensability and on the disputed issue of pre-delivery notice. In the interim, Orlando Regional Healthcare System,. Inc., d/b/a South Seminole Hospital, Christopher Quinsey, M.D., David Goss, M.D., John V. Parker, M.D., and Advanced Women’s Health Specialists were granted leave to intervene.

The Administrative Law Judge’s order contains extensive findings of fact that are unchallenged on appeal. In material part, the ALJ found that Mrs. Weeks had received prenatal care from Advanced, an obstetrical group of which the delivering doctor, Dr. Quinsey, was a member, but she had not been given pre-delivery notice that its physicians participated in the NICA plan. As for the hospital, the ALJ noted in the order that Mrs. Weeks had pre-registered at the hospital and was actually admitted for prenatal care from October 15 to October 19 and again from October 25 to October 27. Nevertheless, the hospital had not provided Mrs. Weeks with a NICA form for her signature until less than two hours before David’s birth on November 3, 2002. The ALJ found that it would have been practicable for the hospital to have delivered the NICA notice during preregistration or during the prenatal admissions. As to Dr. Quinsey, the ALJ specifically found that it would have been practicable to have delivered the notice on any one of Mrs. Weeks’s visits to the clinic. The ALJ concluded, however, that the providers were excused from complying with the • notice , requirement because Mrs. Weeks was in an “emergency medical condition” when she reached the hospital the day David was delivered. In arriving at this conclusion, the ALJ understandably relied on this Court’s opinion in Alexander.

Our resolution of this issue is based on the language of the statute. Section 766.316, Florida Statutes (2002), provides in pertinent part:

Notice to obstetrical patients of participation in the plan. — Each hospital with a participating physician on its staff and each participating physician, ... under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries .... Notice need not be given to a patient when the patient has an emergency .medical condition as defined in s. 395.002(9)(b) or when notice is not practicable.

(Emphasis added).

What this emphasized language cléarly expresses to us is that the formation of the provider-obstetrical patient relationship is what triggers the obligation to furnish the notice. The determination of when this relationship commences is a question of fact. Once the relationship commences, because the statute is silent on the time period within which notice must be furnished, under well-established principles of statutory construction, the law implies that the notice must be given within a reasonable time. Burnsed v. Seaboard Coastline R. Co., 290 So.2d 13, 19 (Fla.1974); Concerned Citizens of Putnam County v. St. Johns River Water Mgmt. Dist., 622 So.2d 520, 523 (Fla. 5th DCA 1993). This determination depends upon the circumstances, but a central consideration should be whether the patient received the notice in sufficient time to make a meaningful choice of whether to select another provider prior to delivery, which is a primary purpose of the notice requirement. Turner v. Hubrich, 656 So.2d 970, 971 (Fla. 5th DCA 1995).

In Alexander, our attention was directed to the last sentence of the statute, which contains the two statutory exceptions to the rule — “emergency medical condition” and “practicability.” We based our holding on our conclusion that these exceptions were independent, as evidenced by the use of the conjunction “or” instead of “and.” Although we continue in our belief that these two exceptions are independent, focusing now on the rule rather than the exceptions, it is clear that Alexander was wrongly decided. Were we to follow Alexander’s construction of the statute, we would be permitting the exception to completely swallow the rule because “emergency medical condition,” as defined, includes virtually every labor and delivery. Such a construction violates a cardinal principle of statutory construction that it “never be presumed that the legislature intended to enact purposeless and therefore useless, legislation.” Sharer v. Hotel Corp. of Am., 144 So.2d 813, 817 (Fla.1962). Our conclusion in Alexander also ignores the mandatory language of the statute, requiring that providers “shall provide notice to obstetrical patients,” thus violating the statutory construction maxim that “all words in a statute ... be construed so as to give them some effect, not so as to render them meaningless surplus-age.” Fla. Police Benev. Ass’n, Inc. v. Dep’t of Agric. & Consumer Servs., 574 So.2d 120, 122 (Fla.1991). We think that the construction we adopt today gives both purpose to the statute and effect to all of its words. For these reasons, we recede from Alexander to the extent that it holds to the contrary.

Here, under the undisputed facts, Mrs. Weeks clearly became an “obstetrical patient” of both providers well before her delivery, thus triggering the obligation to furnish her with the notice within a reasonable time, which was not excused by the subsequent emergency. Because the notice was not timely furnished, neither provider may invoke the benefits of NICA. Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla.1997).

In summary, we hold that the NICA notice must be given within a reasonable time after the provider-obstetrical patient relationship begins, unless the occasion of the commencement of the relationship involves a patient who presents in an “emergency medical condition,” as defined by the statute, or unless the provision of notice is otherwise “not practicable.” When the patient first becomes an “obstetrical patient” of the provider and what constitutes a “reasonable time” are issues of fact. As a result, conclusions might vary, even where similar situations are presented. For this reason, a prudent provider should furnish the notice at the first opportunity and err on the side of caution.

We certify the following question to the Florida Supreme Court as one involving great public importance:

WHEN A NICA PROVIDER FAILS TO PROVIDE THE STATUTORY NOTICE TO AN OBSTETRICAL PATIENT WITHIN A REASONABLE TIME AFTER THE COMMENCEMENT OF THE PROVIDER-OBSTETRICAL PATIENT RELATIONSHIP, IS THE PROVISION OF THE NOTICE EXCUSED BECAUSE THE PATIENT SUBSEQUENTLY PRESENTS IN AN “EMERGENCY MEDICAL CONDITION.”

REVERSED; QUESTION CERTIFIED.

PALMER, C.J., GRIFFIN, THOMPSON, PLEUS, ORFINGER, MONACO, LAWSON and EVANDER, JJ., concur.

SAWAYA, J., concurs in result, with opinion.

SAWAYA, J.,

concurring in result.

I am unable to fully concur in the majority opinion, and I am setting out below an opinion that I previously proposed. I believe my proposed opinion sets forth the correct legal issue to be resolved and, by application of Florida Supreme Court precedent, properly analyzes the legal issue before us.

A majority of the judges on this court have decided to consider this case en banc to resolve the following issue: whether a hospital and physician, who are participants in the Florida Birth-Related Neurological Injury Compensation Plan (NICA),, are excused from compliance with the notice requirements of section 766.316, Florida Statutes (2002), because the mother presented to the hospital and physician for delivery in an emergency medical condition, despite the fact that the mother had previously preregistered at the hospital and had been admitted on at least two occasions for prenatal care and despite the fact that she had previously sought prenatal care at a clinic of which the delivering physician was a member. We have decided that under these circumstances, the hospital and physician are not excused from the statutory notice requirement, and in so holding, we must necessarily recede from our prior decision in Orlando Regional Healthcare System, Inc. v. Alexander, 909 So.2d 582 (Fla. 5th DCA 2005).
Bethany Weeks, as personal representative of the estate of her deceased infant son, David Weeks, appeals the administrative law judge’s (ALJ) order finding that the health care providers were excused from giving her the statutorily required notice of their participation in NICA because Mrs. Weeks had presented herself to the hospital in an emergency medical condition. The attending physician, Dr. Quinsey; his medical group, Advanced Women’s Health Specialists' (AWHS); and the hospital where the infant was delivered, Orlando Regional Healthcare System, Inc., d/b/a South Seminole Hospital, have filed answer briefs as Appellees/In-tervenors. The named appellee is Florida Birth-Related Neurological Injury Compensation Association. The ALJ adjudicated the notice issue only as to the hospital and Dr. Quinsey, and we will confine our decision to resolution of the issue of NICA notice to those two parties.
Almost two years following the November 2002 death of David Weeks from birth-related neurological injuries, Mrs. Weeks filed her petition for compensation under NICA and asked for a determination of whether the health care providers had complied with the notice requirements of NICA. Florida Birth-Related Neurological Injury Compensation Association responded that it believed the claim was compensable and sought a hearing for a determination of compensability and on the disputed issue of pre-delivery notice. In the interim, the motions filed by the intervenors seeking leave of the court to participate in the proceedings were granted.
A detailed discussion of the facts surrounding the birth and death of David is not necessary to resolve the issue before us. Suffice it to say that the ALJ noted in the order under review that Mrs. Weeks preregistered at the hospital in October 2002 and was actually admitted for prenatal care on at least two separate occasions prior to the date she delivered. Mrs. Weeks was not provided the required NICA notice on any of these occasions. Mrs. Weeks testified that she also received prenatal care from AWHS during several visits and did not, during any of those visits, receive notice that its physicians participated in NICA. One of those physicians was Dr. Quin-sey. As to Dr. Quinsey, the ALJ specifically found that it would have been practicable to have delivered the notice on any one of Mrs. Weeks’ visits to the clinic and, as to the hospital, the ALJ found that it would have been practicable to deliver the NICA notice during preregistration or during the prenatal admissions.
The hospital contends that it did not provide Mrs. Weeks with notice during preregistration or the prior prenatal admissions because it has a policy of providing notice only when a patient presents for delivery. Here, Mrs. Weeks presented to the hospital on November 8, 2002, at 8:15 p.m. and gave birth to David at 11:00 p.m. The hospital contends that in compliance with its policy, it did provide Mrs. Weeks with a NICA form for her signature shortly after her arrival at the hospital. Although Mrs. Weeks had signed the form, she denied ever having been given the NICA brochure, which purportedly contained the required notice. The ALJ did not resolve whether the brochure containing the notice had actually been provided to Mrs. Weeks because the ALJ found that even though it would have been practicable for the hospital to have given Mrs. Weeks the NICA notice at preregistration and during her prior prenatal admissions, the hospital, like the doctor, was excused from the notice requirement because Mrs. Weeks presented to the hospital under emergency medical conditions to deliver David.
In arriving at this conclusion, the ALJ relied on this court’s opinion in Orlando Regional Healthcare System, Inc. v. Alexander, 909 So.2d 582 (Fla. 5th DCA 2005). In Alexander, the ALJ determined that even though the mother had arrived at the hospital in an emergency condition, the hospital was not excused from giving the notice because the mother had, on three prior occasions, come to the hospital with “concerns about her pregnancy.” Id. at 586. Having reviewed our records in Alexander, as is appropriate for us to do, we take judicial notice of the fact that those three pre-delivery visits to the hospital did not concern an “emergency medical condition” as referenced in section 766.316 and defined by section 395.002(9)(b), Florida Statutes (2002). In fact, the record reveals that two visits to the hospital lasted several hours, and during the other visit, the mother was actually-admitted to the hospital for overnight observation of her pregnancy. The ALJ concluded that notice should have been given at one of these prior visits, regardless of the fact that the mother eventually arrived at the hospital in an emergency medical condition, and that the failure to give notice was a violation of NICA. Alexander, 909 So.2d at 586. This court held that the ALJ was wrong as a matter of law:
Applying de novo review, we hold that the ALJ erred, as a matter of law, in failing to enforce the clear language of section 766.816, NICA’s notice statute. To that end, the statute states specifically that “notice need not be given to a patient when the patient has an emergency medical condition ... or when notice is not practicable.” The ALJ misapplied the law as expressed in the clear language of the statute by interpreting the statute to require both (1) a finding of an emergency medical condition, and (2) a finding that the provision of notice was not practicable. We hold that the statute contains two distinct exceptions, each of which independently provides an exception to the pre-delivery notice requirement. As such, ORHS was excused from providing notice to Alexander when she arrived at the ORHS under emergency conditions, and her previous visits to the hospital during her pregnancy did not negate this clear statutory exemption.
Id. The holding in Alexander is clear— regardless of prior practicable opportunities to provide the notice, such as pre-delivery visits or admissions for non-emergency prenatal care or preregistration, because section 766.316 contains two distinct exceptions that independently provide an exception to the notice requirement, presenting to the hospital with an emergency medical condition under the statute is all that is necessary to trigger the exception provision.
Mrs. Weeks argues that Alexander is wrongly decided. She contends that although she arrived at the hospital in an emergency medical condition, there had been ample opportunities for the hospital, during her preregistration and the prenatal admissions, and the doctor, during her previous visits to AWHS, to provide her with the requisite notice. Thus, she asks that this court reverse the ALJ’s order and recede from our holding in Alexander based on the decisions in Northwest Medical Center, Inc. v. Ortiz, 920 So.2d 781 (Fla. 4th DCA 2006) (noting express conflict with Alexander), review denied, 966 So.2d 967 (Fla.2007), and University of Miami v. Ruiz, 916 So.2d 865 (Fla. 3d DCA 2005) (certifying conflict with Alexander). These cases hold, contrary to Alexander, that a hospital or physician is not excused from the notice requirements when they had practicable opportunities prior to the onset of the medical emergency to provide the notice.
Our analysis of the pertinent notice requirements and the exception provisions found in section 766.316, Florida Statutes (2002), leads us to conclude that Mrs. Weeks is right. Section 766.316 provides:
Notice to obstetrical patients of participation in the plan
Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient’s rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable.
Because NICA provides the exclusive remedy to those seeking compensation for certain statutorily defined birth-related neurological injuries on a no-fault basis, participants in NICA are required to provide the pre-delivery notice mandated by section 766.316 to their obstetrical patients to give each patient the opportunity to make an informed choice between seeking care from a hospital or physician who participates in the NICA plan and a hospital or physician that does not. Jackson v. Fla. Birth-Related Neurological, 932 So.2d 1125 (Fla. 5th DCA 2006); Ruiz. Compliance with the notice requirement is a condition precedent to hospitals and participating physicians invoking the exclusivity provisions of NICA. Jackson; Ruiz. Therefore, if a NICA participant fails to comply with the notice provisions, the patient will be entitled to seek damages arising out of the birth for birth-related neurological injuries pursuant to Florida’s Medical Malpractice Act found in chapter 766, Florida Statutes. Jackson; Ruiz.
Central to the decisions in Alexander, Ruiz, and Ortiz, and central to resolution of the issue in the instant case, are the provisions of section 766.316 that specify when notice is excused: “Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable.” § 766.316, Fla. Stat. (2002). Because section 766.316 expressly adopts the definition of “emergency medical condition” set forth in section 395.002(9)(b), it is appropriate to consider the provisions of the latter statute in ascertaining the meaning of the exemption provisions in the former. See Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992) (holding that pertinent statutes should be read together and considered in pari materia in determining the meaning of a statute and legislative intent). Section 395.002(9)(b), Florida Statutes (2002), defines “emergency medical condition,” as that term is used with respect to a pregnant woman, as meaning:
1. That there is inadequate time to effect safe transfer to another hospital prior to delivery;
2. That a transfer may pose a threat to the health and safety of the patient or fetus; or
3. That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. We believe that subsection three of
this statute defines emergency medical condition to mean that any time a woman goes into labor and presents for delivery, she presents with an emergency medical condition. According to this court’s decision in Alexander, the onset of labor and the delivery of any child therefore excuses compliance with the notice requirement regardless of the fact that the NICA participant had practicable opportunities prior to delivery to provide the notice. We believe that the holding in Alexander vitiates the pertinent provisions of section 766.316 because it allows the exception to completely swallow the rule requiring notice. This cannot be what the Legislature meant when it enacted section 766.316.
The test to determine when notice is required under the statute is practicability, see section 766.316, Florida Statutes (2002), and this means that if a NICA participant has a reasonable opportunity to provide the required notice within a reasonable time prior to the onset of the statutorily defined emergency medical condition to allow the patient to make the necessary informed choice, then the notice must be given. This test comports with the purpose of the NICA notice and with precedent from the Florida Supreme Court, this court, and other district courts. In Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla.1997), the court held:
We agree with the district courts that the only logical reading of the statute is that before an obstetrical patient’s remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider’s participation in the plan. Section 766.316 requires that obstetrical patients be given notice “as to the limited no-fault alternative for birth-related neurological injuries.” That notice must “include a clear and concise explanation of a patient’s rights and limitations under the plan.” § 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So.2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the “no-fault alternative for birth-related neurological injuries” a reasonable time prior to delivery, when practicable.
Id. at 309-10 (emphasis added); see also Univ. Med. Ctr., Inc. v. Athey, 699 So.2d 1350, 1350 (Fla.1997) (holding that the notice must be given a “ ‘reasonable time prior to delivery.’ ” (quoting Galen, 696 So.2d at 309)); Domond v. Mills, 696 So.2d 314, 315 (Fla.1997) (same); Ortiz, 920 So.2d at 785 (following a quotation from Galen, the court held, “If the purpose of the notice requirement is to give the patient the choice to choose a NICA protected delivery or not, hospitals should give notice at a time where such choice can still be made. By waiting until an emergency arises, the hospital is depriving the patient of this choice. Therefore, by failing to give notice of NICA participation a reasonable time prior to delivery, although able to do so, Northwest lost the protection of NICA, and the Ortizes are entitled to pursue their civil remedies.”); Ruiz, 916 So.2d at 870 (“[W]e find that, if a reasonable opportunity existed to provide notice prior to the onset of the emergency-medical condition, the participating health care providers’ failure to do so will not be excused and the participating health care providers will lose their NICA Plan exclusivity.”) (emphasis added). In Jackson, this court specifically held that as a condition precedent to invoking the exclusivity provisions of NICA, pre-de-livery notice must given to the patient and cited Galen as holding that “NICA patients must be given pre-delivery no'tice of physician’s participation in NICA within a reasonable time period prior to delivery, when practical.... ” 932 So.2d at 1129 (emphasis added).
Here, Mrs. Weeks preregistered at the hospital and was admitted at least two times for non-emergency prenatal care. We conclude that any one of these occasions presented the hospital with a practicable opportunity to comply with the notice requirement a reasonable time prior to the onset of Mrs. Weeks’ emergency medical condition. See Ortiz; Ruiz. Therefore, we do not believe that the hospital should be excused because nature took its inevitable course when Mrs. Weeks subsequently went into labor and delivered David.’
As to the delivering physician, Dr. Quinsey, he was a member of AWHS where Mrs. Weeks received prenatal care during several visits prior to her delivery of David. Like the hospital, Dr. Quinsey had a reasonable opportunity during any one of those visits to give the required notice a reasonable time prior to Mrs. Weeks’ presentment to the hospital in labor.
Appellees present the argument that the notice requirement was complied with because Mrs. Weeks was provided with notice when she presented for delivery. Mrs-Weeks contests that assertion. When Mrs. Weeks arrived at the hospital to deliver David, she presented with a statutorily defined emergency medical condition because she was in labor. Mrs. Weeks contends that even if she were presented with a NICA brochure containing the required notice as Appellees argue, it was less than an opportune time for her to read it “while she was having contractions, in pain, receiving lactate lingers, and while labs were being drawn.” We agree with Mrs. Weeks that this certainly would not have been efficacious notice. We conclude that even if notice had been given to Mrs. Weeks at that time, it would not have complied with the requirement that notice be given a reasonable time prior to the onset of the emergency medical condition to allow the mother to make an informed choice between a NICA participant and • a non-participant. Ortiz; Ruiz. We pose a rhetorical question similar to that asked by the court in Ortiz: What mother in the throes of labor will take the time or even be able to make the effort'to read a NICA notice and then shop around for a non-participating hospital or physician to deliver her baby?
Accordingly, we recede from our prior decision in Alexander, mindful, of course, that the panel that decided Alexander believed that section 766.316 is unambiguous and, according to certain rules of statutory construction, must be given a literal interpretation. Based on that analysis, we understand how and why the panel members in Alexander arrived at the holding and conclusion that they did. We, on the other hand, have grappled with discerning the meaning of what we consider to be a poorly worded and ambiguous statute. But even if we were to conclude, like the panel in Alexander, that the statute is unambiguous, we would nevertheless be directed to the same conclusion we reach today by other venerable rules of statutory construction, which are explained in Maddox v. State, 923 So.2d 442 (Fla.2006):
Turning to these principles, we note that we have previously held that “[i]t is a fundamental principle of statutory construction that where a statute is plain and unambiguous there is no occasion for judicial interpretation.” Golf Channel v. Jenkins, 752 So.2d 561, 564 (Fla.2000) (alteration in the original) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992)). However, this Court has
also stated that related statutory provisions should be read together to determine legislative intent, so that “if from a view of the whole law, or from other laws in pari materia the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, that intent should prevail, for that, in fact is the will of the Legislature.” Id. (quoting Forsythe, 604 So.2d at 454); see also McGhee v. Volusia County, 679 So.2d 729, 730 n. 1 (Fla.1996) (“The doctrine of in pari materia requires the courts to construe related statutes together so that they illuminate each other and are harmonized.”). Moreover, “a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984).
Id. at 445-46; see also Pavolini v. Bird, 769 So.2d 410, 414 (Fla. 5th DCA 2000) (“We must interpret and apply the [Medical Malpractice] Act to avoid an absurd result and to bring symmetry to all of the pertinent provisions of the Act relating to pre-suit notice and investigation.”), review denied, 790 So.2d 1102 (Fla.2001). Applying these rules of statutory construction, we believe that the interpretation of section 766.316 we adopt today more accurately comports with legislative intent.
Because the hospital and physician failed to provide Mrs. Weeks with the required notice under section 766.316, they should not be entitled to seek shelter under the statute’s exclusion provisions. Therefore, we reverse the administrative order under review so that Mrs. Weeks may pursue appropriate tort remedies for damages as she sees fit. We certify the following question to the Florida Supreme Court as a matter of great public importance:
WHETHER A HOSPITAL OR PHYSICIAN IS EXCUSED FROM COMPLYING WITH THE NOTICE REQUIREMENT OF SECTION 766.316 WHEN AN OBSTETRICAL PATIENT PRESENTS TO THE HOSPITAL OR PHYSICIAN WITH A MEDICAL EMERGENCY CONDITION, IF THE HOSPITAL OR PHYSICIAN HAD A PRIOR PRACTICABLE OPPORTUNITY TO PROVIDE THE NOTICE.
REVERSED.

Having fully set forth my views, I feel it is important to briefly address the-objection the majority has to my use of the term “practicability” in my proposed opinion. I thought that it would be readily apparent to the reader that I used that term to label the standard that was adopted by the Florida Supreme Court in Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla.1997), for determining when the NICA notice must be given. I specifically say so in footnote 7, stating, “Under the standard we apply, which we label practicability....” That label adds nothing of substance to the legal analysis in the proposed opinion. Rather than focus on the label, I think it appropriate to focus on the meaning of the standard.

The only matter of substance that distinguishes my opinion from that of the majority is whether the standard to determine when the notice must be given adopted by the Florida Supreme Court in Galen and its progeny applies to the instant ease. The majority thinks it is dicta. I disagree. I strongly believe the standard adopted in Galen is binding precedent that this court must apply. It is clear from reading Galen that the court explicitly intended to establish a legal standard to determine when the NICA notice must be given. ' Moreover, the court specifically held that compliance with the standard is a condition precedent, explaining, “Whether a health care provider was in a position to give a patient pre-delivery notice of participation and- whether notice was given a reasonable time before delivery will depend on the circumstances of each case and therefore must be determined on a case-by-case basis.” Galen, 696 So.2d at 311; see also University Med. Ctr., Inc. v. Athey, 699 So.2d 1350 (Fla.1997) (“In Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997), we answered the certified question by holding ‘that as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient’s exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.”); Domond v. Mills, 696 So.2d 314, 315 (Fla.1997) (same). The Second District Court has just rendered two cases explaining that the Galen standard was derived from extensive analysis of NICA. In Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Ass’n, 33 Fla. L. Weekly D217, D218, — So.2d —, —, 2008 WL 140806 (Fla. 2d DCA Jan. 16, 2008), for example, the court explained:

- The Supreme Court of Florida provided an extensive analysis of the Plan’s notice requirement in Galen, 696 So.2d 308, which involved the timing of the notice. In that case, the healthcare providers, who had failed to -provide the expectant mother with predelivery notice, argued that such was not required by the plain reading of the statute. After analyzing the purpose of the statutorily required notice, the supreme court came to the following conclusion: “This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies.” Id. at 309-10. The court also observed that the “only logical reading of the statute” makes it clear that the notice must be given at such a time that would allow the patient to either remain in the care of the participating physician or seek prenatal care from a nonparticipating physician. Id. at 309. The court concluded “that as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient’s exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.” Id.

In Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 974 So.2d 1096 (Fla. 2d DCA 2007), the court explained:

Appellants also argue that the ALJ erred in applying Galen, 696 So.2d 308, to the. facts of this case. Again, we disagree. We acknowledge that the issue before the Galen court was the timing of the notice, not the sufficiency. In that case, the delivering physician did not give the required notice until after the child was born. However, the supreme court concluded that even though the statute does not specifically spell out when the notice must be given, because the purpose of the notice provision was to allow a patient to choose to engage the services of a nonparticipating physician and thus preserve her rights to access the civil courts in a malpractice action should the need arise, the notice requirement was meaningless unless it also required that the notice be given prior to delivery to allow the patient the option of exercising such a choice. Id. at 309. In coming to this conclusion, the court stated, “[A]s a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient’s exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.” Id.
The Galen analysis of the purpose of the statute’s notice provision is also applicable to the question of the sufficiency of notice.

I think it is erroneous for this court to declare as dicta a legal standard adopted by the Florida Supreme Court. Equally important, as I explain in my opinion, the Third and Fourth District Courts, in cases strikingly similar to the instant case and certifying conflict with Alexander, cite Galen and specifically apply the very standard this court considers dicta. Northwest Med. Ctr., Inc. v. Ortiz, 920 So.2d 781 (Fla. 4th DCA 2006), review denied, 966 So.2d 967 (Fla.2007); University of Miami v. Ruiz, 916 So.2d 865 (Fla. 3d DCA 2005). This court has also previously applied the Galen standard. Jackson v. Florida Birth-Related Neurological, 932 So.2d 1125, 1129 (Fla. 5th DCA 2006) (holding specifically that as a condition precedent to invoking the exclusivity provisions of NICA, pre-delivery notice must given to the patient; citing Galen as holding that “NICA patients must be given pre-delivery notice of physician’s participation in NICA within a reasonable time period prior to delivery, when practical ....”) (emphasis added). I also note that very recently this court cited Galen as authority for providing pre-delivery notice. Dianderas v. Florida Birth Related Neurological, 973 So.2d 523, 524 (Fla. 5th DCA 2007) (“Of significance to this appeal, NICA requires that participating hospitals and physicians give pre-delivery notice to obstetrical patients of their participation in NICA. See Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997).”).

The only other justification for not applying the Galen standard offered by the majority is its assertion that the standard the majority adopts is more workable because the date of delivery under Galen is uncertain and the participant and patient will have to “speculate” about “an unpred-icticable event.” The fallacy of this argument becomes readily apparent when consideration is given to the fact that one of the first things an obstetrician does is to determine the delivery date in order to establish a care regimen and protocol for the patient and set future examination dates. See The Merck Manual of Diagnosis and Therapy 1744-59 (Robert Berkow, M.D., et al. eds., 15th ed. 1987); see also The Merck Manuals Online Medical Library § 22 (Robert S. Porter, M.D., et al. eds., 2003) available at http://www.merck. com/mmhe/sec22/ch257/ch257b.html. Be that as it may, it is not the delivery date that is the significant factor under the Galen standard: it is the point in time when the mother is no longer able to make the necessary choice between a participant and a nonparticipant, and the court in Galen makes that clear. This will be a question of fact in most eases.

In conclusion, I fully align myself with the decisions from the Third and Fourth District Courts in Ruiz and Ortiz. They got it right: they properly applied Florida Supreme Court precedent; they articulated the correct standard; they recognized direct conflict with Alexander, which they declared to be wrongfully decided; and they arrived at the correct result. I note with interest that the majority states that the distinction between its standard and the Galen standard is “semantic” and “consistent with the Branijf [Galen] dicta.” I note these assertions because they literally beg the question: why doesn’t the majority simply apply the Galen standard as required by the doctrine of stare deci-sis.

As to the certified question, while I definitely think this is a case the Florida Supreme Court should review, I believe that the question I framed in my proposed opinion is the appropriate question to certify. In addition; I believe that the following question should also be certified:

IS THE STANDARD ESTABLISHED IN GALEN FOR DETERMINING WHEN THE NICA NOTICE MUST BE GIVEN APPLICABLE IN CASES WHERE THE NOTICE IS REQUIRED, OR IS IT DICTA?

      . §§ 766.301-.316, Fla. Stat. (2002).

      . Section 395.002(9)(b), Florida Statutes, defines "emergency medical condition” as meaning:
      (b) With respect to a pregnant woman:
      1. That there is inadequate time to effect safe transfer to another hospital prior to delivery;
      2. That a transfer may pose a threat to the health and safety of the patient or fetus; or
      3. That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes.
      (Emphasis added).

      . We appreciate Judge Sawaya's thorough special concurrence but do not think our decision today is in tension with Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla.1997). There, the court answered in the affirmative the following certified question:
      WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIV-ERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS’ INVOKING NICA AS THE PATIENTS’ EXCLUSIVE REMEDY?
      In dicta, the court stated that the notice must be provided "a reasonable time prior to delivery, when practicable.” Id. at 310 (emphasis added). See Cirelli v. Ent, 885 So.2d 423, 427 (Fla. 5th DCA 2004) (characterizing as dicta statement addressing issue not within scope of certified question); accord Johnson v. State, 557 So.2d 203, 206 (Fla. 5th DCA 1990) (Harris, J., concurring specially). At the time Braniff -was decided, the word “practicable,” or its equivalent, did not appear in the statute, nor did the statute contain any exceptions from its mandatory directive. Subsequently, the legislature amended the statute in response to Braniff. Instead of interjecting the word “practicable” as a component of the rule, the legislature added the sentence containing exceptions, including that notice "need not be given ... when notice is not practicable.” We are construing the amended statute and make the distinction between the rule and the exception based on the language of the amended statute. Thus, "practicability” only is relevant in an analysis of the exception, not the rule. This is why we disagree with Judge Sawaya’s conclusion that the "test” for when notice is required is "practicability.” As for the language in Bran-iff requiring the notice to be given “a reasonable time prior to delivery,” we think it more appropriate to apply the long-standing principle that, when no time for performance of an act is specified, the law implies that the act be performed within a reasonable time after the time for performance is triggered. Bumsed, 290 So.2d at 19. This approach results in a rule that is more workable because providers need not speculate about when notice is due. Otherwise, providers and obstetrical patients are left with a rule that can only be applied in hindsight because it uses as a trigger an unpredictable subsequent event. In any event, any distinction between the two approaches is largely semantic because our analysis leads to the same result and is, therefore, entirely consistent with the Braniff dicta.

      . The provisions of the plan are contained in sections 766.301 through 766.316, Florida Statutes (2002). We refer to these provisions as NICA as other courts have consistently done. See, e.g., Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So.2d 705 (Fla.2007); Weinstock v. Houvardas, 924 So.2d 982 (Fla. 2d DCA 2006); Sunlife Ob/Gyn Servs. of Broward County, P.A. v. Million, 907 So.2d 624 (Fla. 4th DCA 2005); Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 880 So.2d 1253 (Fla. 1st DCA 2004).

      . We note that two other doctors, Dr. Goss and Dr. Parker, were also granted leave to intervene.

      . Two of the admissions required hospital stays of two or more days. The record shows that Mrs. Weeks was admitted October 15 to October 19 and again from October 25 to October 27.

      . See Sinclair v. State, 853 So.2d 551, 552 n. 2 (Fla. 1st DCA 2003); Miami Stage Lighting, Inc. v. Budget Rent-A-Car Sys., Inc., 712 So.2d 1135, 1137 n. 2 (Fla. 3d DCA), review denied, 728 So.2d 200 (Fla.1998); In re Scala, 523 So.2d 714, 718 n. 1 (Fla. 4th DCA 1988) (Glickstein, J., dissenting); Arnold Lumber Co. v. Harris, 503 So.2d 925 (Fla. 1st DCA 1987); Gulf Coast Home Health Servs. of Fla., Inc. v. Dep’t of Health & Rehabilitative Servs., 503 So.2d 415, 417 (Fla. 1st DCA 1987); Barry Hinnant, Inc., v. Spottswood, 481 So.2d 80, 81 n. 1 (Fla. 1st DCA 1986); see also Ashman v. State, 886 So.2d 1079, 1081 (Fla. 5th DCA 2004); Cooper v. State, 845 So.2d 312 (Fla. 2d DCA 2003).

      . Section 766.316 was amended, effective July 1, 2007, by chapter 2007-230, section 205, Laws of Florida, to substitute a reference to section 395.002(8)(b) for the reference to section 395.002(9)(b) in the last sentence because the definition of “emergency medical condition” was moved to that subsection. The amendment does not impact our analysis.

      . We note, parenthetically, that the definition of "emergency medical condition" is now found in section 395.002(8)(b), Florida Statutes. Nevertheless, the definition remains the same.

      . We believe that the notice requirement is triggered by formation of the obstetrical patient relationship with the participant. Therefore, it is the better practice for the participant to provide the notice at the time the relationship is established. Otherwise, in order to allow the mother sufficient time to make the necessary choice between a partici- . pant and a non-participant, the notice must be given "a reasonable time prior to delivery, when practicable.” Galen, 696 So.2d at 310; see also Athey; Domond; Ortiz; Ruiz. Under the standard we apply, which we label "practicability,” the factor that determines whether the notice must be given is the point in time when the mother is able to make the necessary choice.


source: Caselaw Access Project

author: SALCINES, Judge.

license: Public Domain

text:
    Marilyn L. WOEBSE, as Personal Representative of the Estate of David Kramer, Appellant, v. HEALTH CARE AND RETIREMENT CORPORATION OF AMERICA, as licensee and owner of Heartland Health Care Center of Fort Myers; Manor Care of America, Inc.; Manorcare Health Services, Inc.; and Manor Care of Florida, Inc., Appellees.
    No. 2D06-720.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2008.

      Darrin M. Phillips of Darrin Phillips, P.A., Naples, and Bard D. Rockenbach and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    Sylvia H. Walbolt and Matthew J. Con-igliaro of Carlton Fields, P.A., Tampa, for Appellees.
   SALCINES, Judge.

Marilyn L. Woebse, as personal representative of the estate of her father, David Kramer, appeals the nonfinal order granting a motion to compel arbitration. We reverse.

From February 5, 2008, until his death on August 4, 2004, Mr. Kramer was a resident of Heartland Health Care Center of Fort Myers, .a nursing home, Ms. Woebse brought an action against Health Care and Retirement Corporation of America who owned and operated the nursing home. The complaint alleged there had been a deprivation of Mr. Kramer’s nursing home resident’s rights in violation of chapter 400, Florida Statutes, and stated a claim for wrongful death pursuant to chapter 768, Florida Statutes. Additional defendants included Manor Care of America, Inc.; Manorcare Health Services, Inc.; and Manor Care of Florida, Inc., all as employer of the employees and staff who worked at the nursing home (hereinafter the defendants shall be referred to collectively as “Heartland”). In response to the complaint, Heartland filed a motion to compel arbitration. Ms. Woebse opposed the motion to compel and claimed the arbitration agreement was unenforceable because it was unconscionable.

To succeed on an unconscionability claim, there must be a showing of both procedural and substantive unconscionability. Bland, ex rel. Coker v. Health Care & Ret. Corp. of Am., 927 So.2d 252, 256 (Fla. 2d DCA 2006). Procedural unconscionability relates to the manner in which a contract is made and involves consideration of issues such as the bargaining power of the parties and their ability .to know and understand disputed contract terms. Id.; Orkin Exterminating Co. v. Petseh, 872 So.2d 259, 265 (Fla. 2d DCA 2004). Substantive unconscionability requires an assessment of whether the contract terms are “so ‘outrageously unfair’ as to ‘shock the judicial conscience.’ ” Id. (quoting Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 285 (Fla. 1st DCA 2003)). A substantively unconscionable contract is one that “no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Id. (quoting Hume v. United States, 132 U.S. 406, 411, 415, 10 S.Ct. 134, 33 L.Ed. 393 (1889)).

The trial court conducted a hearing on the motion to compel and considered the argument of counsel; the deposition of Mr. Kramer’s other daughter, Arlene Wright; the affidavit of Heartland’s admissions director, Nancy Tomei; and answers to interrogatories. In the written order granting the motion, the trial court found that the arbitration agreement was not unconscionable and was a valid contract.

A trial court’s decision to grant a motion to compel arbitration is based in part on factual findings. Accordingly, the decision presents a mixed question of law and fact. The appellate review of the trial court’s factual findings is limited to determining whether they are supported by competent, substantial evidence. However, the standard of review applicable to the trial court’s construction of the arbitration provision and to its application of the law to the facts found is a de novo review. See Fonte v. AT & T Wireless Sens., Inc., 903 So.2d. 1019, 1023 (Fla. 4th DCA 2005).

Procedural Unconscionability

Mr. Kramer had been living independently until he suffered a stroke. He was admitted to the hospital and was so gravely ill that it was thought he would not survive for more than twenty-four hours. Fortunately, he did survive and eventually Mr. Kramer was to be discharged from the hospital. Ms. Wright was informed that rehabilitation would not be possible for her father and long-term care placement in a nursing home would be necessary. The social services department of the hospital found a placement for Mr. Kramer at Heartland, and he was admitted on Wednesday, February 5, 2003. Ms. Wright went to Heartland at the conclusion of her employment workday after 5 p.m. on Wednesday. She was not approached about signing paperwork for her father’s admission until the following evening. Ms. Wright finally met with the admissions director, Ms. Tomei, at approximately 1 p.m. on Friday afternoon, February 7, 2003.

Ms. Wright testified in her deposition that the entire meeting with Ms. Tomei lasted a total of approximately five minutes. Ms. Wright stated that she was presented with a consecutively numbered, thirty-seven page document entitled “Admission Agreement.” She was told by Ms. Tomei that the document was “admission papers that were required to be signed for [her father’s] continued stay.” Ms. Wright testified that Ms. Tomei instructed her to sign the documents and “flipped through to the signature pages and [Ms. Wright] signed it.” Ms. Tomei did not explain the documents to Ms. Wright other than to state that it was their policy to enforce a DNR (Do Not Resuscitate) order. Ms. Wright did not read the thirty-seven page document before she signed it, and the fact that an arbitration agreement was contained in the package was not pointed out or highlighted in any manner by Ms. To-mei. Immediately after Ms. Wright signed the document, Ms. Tomei left her office for another appointment. Ms. Wright never was supplied with a copy of the document she signed.

The record contains the affidavit of Ms. Tomei in which she stated that she remembered meeting with Ms. Wright, but she “[did] not specifically recall presenting the documents” to her. Her affidavit does not refute the recitation of facts contained in Ms. Wright’s deposition but merely sets forth the manner in which she generally presents admissions paperwork to residents.

As had the plaintiff in Romano v. Manor Care, Inc., 861 So.2d 59 (Fla. 4th DCA 2003), Ms. Wright has demonstrated that there was procedural unconscionability in relation to the signing of the arbitration agreement. During the five-minute meeting which took place between Ms. Wright and Ms. Tomei, there was no attempt to inform Ms. Wright of the existence of the arbitration agreement, much less to explain the document to her and the rights she would be waiving on behalf of her father.

In Bland this court reviewed the identical arbitration agreement as is involved in the present case. However, in that case the arbitration agreement was “worded clearly, conspicuously and separate from other [admissions] documents.” See Bland, 927 So.2d at 254. In the present case, the arbitration agreement was included as pages thirty-three through thirty-seven of the thirty-seven page sequentially numbered document. Ms. Wright was not given the opportunity to read the thirty-seven page document prior to signing but was merely directed where to sign. Additionally, because Ms. Wright was never provid'ed with a copy of the agreement, she did not have a chance to review the agreement at any time after this five-minute encounter.

With regard to another determinative factor — equal bargaining power — it did not exist. Ms. Wright was never informed that she was not required to sign the arbitration agreement in order for her extremely ill, incapacitated father to be allowed to remain at the facility. In her deposition Ms. Wright testified that she was told by Ms. Tomei that “they were admission papers that were required to be signed for [her father’s] continued stay.”

The trial court’s conclusion that there was no procedural unconscionability was not supported by competent, substantial evidence.

Substantive Unconscionability

At the hearing on the motion to compel, counsel for Ms. Woebse informed the court the arbitration agreement involved in the present case is the same as the agreement that was reviewed in Romano by the Fourth District. In Romano the court issued a thoughtful opinion pointing out how chapter 400 was designed to protect the rights of nursing home residents and how the law provides an award of punitive damages for gross or flagrant conduct or conscious indifference to these rights. We agree with and adopt the Fourth District’s analysis in Romano and hold that this arbitration agreement would not vindicate a nursing home resident’s statutory rights in any manner because it specifically deprives the resident of those rights. In the present case, the trial court erred when it applied the law to the facts and determined that the arbitration agreement was not substantively unconscionable.

Conclusion

Ms. Woebse demonstrated that the arbitration agreement in the present case is unconscionable as there was a showing of both procedural and substantive uncon-scionability. Accordingly, we reverse the order granting the motion to compel arbitration and remand for further proceedings.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.

      . Mr. Kramer had executed a durable power of attorney appointing Ms. Wright his attorney-in-fact.

      . In Bland, in which this court found no procedural unconscionability, we held there was no suggestion that the appellee, Healthcare and Retirement Corporation of America, had attempted to hide the terms of the arbitration agreement from Ms. Bland's daughter. ■ Further, in contrast to the facts in the present case, the admissions director spent two hours with Ms. Bland’s daughter on the day the arbitration agreement was signed. See Bland, 927 So.2d at 256.

      . The Agreement provides, in pertinent part, as follows:
      A. ARBITRATION PROVISIONS

      1.1Any and all claims or controversies between the Facility and the Resident arising out of or in any way relating to the Resident’s stay at the Facility, including disputes regarding interpretation of this Agreement, whether arising out Of State or Federal law, and whether based upon statutory duties, breach of contract, tort theories or other legal theories (including, without limitation, any claim based on Florida Statutes §§ 400.022, 400.023, 400.428, 400.429 ...), shall be submitted to final and binding arbitration. Except as expressly set forth herein, the provisions of the Florida Arbitration Code, Florida Statu[t]es § 682.01, et. seq., shall govern the arbitration. Each party hereby waives its right to file a court action for any matter covered by this Agreement.

      B. LIMITATION OF LIABILITY PROVISION: Read Carefully Before Signing.

      1.1 The parties to this Agreement understand that the purpose of this “Limitation of Liability Provision” is to limit, in advance, each party’s liability in relation to this Agreement.
      1.2 Liability for any claim brought by a party to this Agreement against the other party, ... including, without limitation, claims for medical negligence or violation(s) of Florida Statutes § 400.022, et. seq., arising from simple or gross negligence, shall be limited as follows:
      1. Net economic damages shall be awardable, including, but not limited to, past and future medical expenses, off-set by any collateral source payments; any outstanding liens shall be satisfied from the damages awarded.
      2. Non-economic damages shall be limited to a maximum of $250,000.
      3. Interest on unpaid nursing home charges shall not be awarded.
      4. Punitive damages shall not be awarded.

      .This same arbitration agreement also was the subject of litigation in Lacey v. Healthcare & Retirement Corp. of America, 918 So.2d 333 (Fla. 4th DCA 2005). The Fourth District found the arbitration agreement to be contrary to public policy and void.

      . We note that our decision does not conflict with our opinion in Bland, 927 So.2d 252. In that case this court upheld the trial court's factual determination that there had been no showing of procedural unconscionability. Therefore, we declined to address the issue of substantive unconscionability because there must be a showing of both procedural and substantive unconscionability to succeed on such a claim. Id. at 256. This court noted that the issue of whether an agreement is void for violating public policy is a separate and distinct issue from whether an agreement is unconscionable. Id. at 257; see Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 299 (Fla. 4th DCA 2005) (en banc). In dicta, this court opined in Bland that even though not presented to the trial court for review, an arbitrator may exercise his or her authority to determine whether an arbitration agreement violates public policy and whether remedial limitations are enforceable. Bland, 927 So.2d at 258-59. In the present case Ms. Wright did not argue that the arbitration agreement violated public policy but only asserted that the agreement was unconscionable.


author: PER CURIAM.

text:
    Kelly W. WOODS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5741.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2008.
    Rehearing Denied March 27, 2008.
    Kelly W. Woods, pro se, Petitioner.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits. This disposition is without prejudice to petitioner’s right to challenge that portion of his sentence imposed pursuant to section 794.0285, Florida Statutes, by filing a motion for relief in the trial court.

PETITION DENIED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: VILLANTI, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. William Patrick BALLINGER, Appellee/Cross-Appellant.
    No. 2D06-2613.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2008.
    Rehearing Denied April 8, 2008.
    Bill McCollum, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    Eilam Isaak, Tampa, for Appel-lee/Cross-Appellant.
   VILLANTI, Judge.

The State appeals a trial court order granting suppression of William Patrick Ballinger’s refusal to take a breath test, and Ballinger cross-appeals the same trial court order which also denied his motion to suppress evidence obtained from an allegedly unlawful stop. For the reasons stated in State v. Busciglio, 976 So.2d 15 (Fla. 2d DCA 2008), we reverse the trial court’s order granting suppression of Ballinger’s refusal. However, we affirm the court’s order denying his motion to suppress evidence obtained from the stop because the officer was not required to have probable cause to arrest Ballinger in order to stop his vehicle. Rather, the officer was merely required to have reasonable suspicion that Ballinger had committed, was committing, or was about to commit a crime. See § 901.151, Fla. Stat. (2004); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, 626 So.2d 185, 186 (Fla.1993). We conclude that the trial court correctly found that the officer had the requisite reasonable suspicion sufficient to stop Ballinger’s vehicle. Thus, we affirm that portion of the order denying suppression.

Affirmed in part; reversed in part; and remanded for further proceedings.

DAVIS, J., and BENNETT, ROBERT B., JR., Associate Judge, Concur.


text:
    WAL-MART STORES EAST L.P., a Delaware limited partnership, Petitioner, v. TOWN OF DAVIE, and Rolling Hills Plantation Homeowners Association, Respondents.
    No. 4D07-1856.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.
    Rehearing Denied April 16, 2008.

      Nancy A. Copperthwaite and Carmen I. Tugender of Akerman Senterfitt, Miami, and Katherine E. Giddings of Akerman Senterfitt, Tallahassee, for petitioner.
    Andrew S. Maurodis, Deerfield, for respondent Town of Davie.
    W. Tucker Gibbs of W. Tucker Gibbs, P.A., Coconut Grove, for respondent Rolling Hills Plantation Homeowners Association.
   PER CURIAM.

Wal-Mart Stores East, L.P. (“Wal-Mart”) timely seeks certiorari review of an order by the circuit court, sitting in its appellate capacity, which denied Wal-Mart’s first-tier petition for writ of certio-rari. The first-tier petition sought review of a decision by the town council of the Town of Davie (“the Town”) which had denied Wal-Mart’s application for site plan approval. We deny the petition.

Our scope of review is limited when an appellant seeks certiorari relief from a circuit court acting in its appellate capacity. In second-tier certiorari petitions, we inquire only into whether the circuit court afforded procedural due process and whether the circuit court applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). Second-tier certiorari review is not a second appeal. Pharmcore, Inc. v. City of Hallandale Beach, 946 So.2d 550, 552 (Fla. 4th DCA 2006). With this standard in mind, we find that most of the issues presented by Wal-Mart are outside the scope of our narrow review.

One procedural due process issue properly raised by Wal-Mart is whether the circuit court had jurisdiction to review the Town’s denial of its application. Wal-Mart argues that because the town council did not issue a written, signed, and rendered decision of its denial, the circuit court improperly reviewed the matter. However, in Broward County v. G.B.V. International, Ltd., 787 So.2d 838 (Fla.2001), our supreme court reviewed the cer-tiorari evaluation conducted by the lower courts in that case. G.B.V. involved a zoning decision by a county commission. Although the supreme court found fault in the certiorari review conducted by both lower courts, it found no jurisdictional defects in the circuit court’s certiorari review of the county commission’s decision even though the commission did not issue a written order. Id. at 846.

We also note that written notice from a denial of a development permit is now required under Florida Statutes section 166.033, which took effect on October 1, 2006. Section 166.033 states, “When a municipality denies an application for a development permit, the municipality shall give written notice to the applicant. The notice must include a citation to the applicable portions of an ordinance, rule, statute, or other legal authority for the denial of the permit.” However, because the council’s June 19, 2006 decision was issued before section 166.033 took effect, no written notice was required. Thus, in accordance with G.B.V. and because the Town made its decision before October 1, 2006, the lower court in the instant matter properly reviewed the town council’s denial of the application even though no written order was issued.

In the ruling below, the circuit court followed the correct three-prong standard of review as found in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982). The court below also found that there was competent substantial evidence to support the council’s denial of Wal-Mart’s application for site plan approval. The court below cited De Groot v. Sheffield, 95 So.2d 912 (Fla.1957) and City of Deland v. Benline Process Color Co., 493 So.2d 26 (Fla. 5th DCA 1986), for the proposition that a circuit court is only to review whether competent substantial evidence existed for a lower tribunal’s decision; it must not reweigh or consider the credibility of the evidence presented to the tribunal. The lower court applied the correct law in this matter.

Because the circuit court afforded Wal-Mart procedural due process and applied the correct law in its first-tier certiorari review, we deny the instant petition for certiorari.

POLEN, TAYLOR and DAMOORGIAN, JJ., concur.

      . This court has jurisdiction pursuant to Fla.R.App. P. 9.030(b)(2)(B).

      . The three-prongs are 1) whether procedural due process is accorded, 2) whether the essential requirements of the law have been observed, and 3) whether the findings and judgment are supported by competent substantial evidence. Vaillant, 419 So.2d at 626.


author: KLEIN, J.

text:
    COLUMBIA/JFK MEDICAL CENTER LIMITED, etc., Appellant, v. Sam SANGOUNCHITTE and Matilda Sangounchitte, Appellees.
    Nos. 4D07-1068, 4D04-2034.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2008.

      Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens; Sylvia H. Walbólt and Stephanie Zimmerman of Carlton Fields, P.A., Tampa and Maureen E. Mahoney of Latham & Watkins, LLP, Washington, DC, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellees.
   KLEIN, J.

Plaintiffs recovered a large verdict against the appellant hospital on the theory that the hospital negligently credentialed a neurosurgeon who should not have been allowed by the hospital to perform an operation that went terribly wrong. We reject the hospital’s argument that there was insufficient evidence to support negligent credentialing, but reverse the award to Mrs. Sangounchitte for lost services as well as the award of attorney’s fees.

The neurosurgeon who operated was Dr. Jacques Farkas. Dr. Farkas had diagnosed Mr. Sangounchitte (plaintiff) with a very serious and complicated cervical spine problem for which surgery was necessary in order to stabilize the neck. The procedure he performed consisted of an anterior fusion, followed three days later by posterior surgery in which Dr. Farkas inserted steel “Luque” rods which were attached to the spine with wires. Following the surgery the Luque rods migrated from the cervical spine up into plaintiffs cerebellar cavity, causing brain damage and spinal cord injury.

Dr. Farkas, who was not a defendant in this case, testified that he was aware that he had used these rods “off label” on this plaintiff, contrary to the manufacturer’s warning not to use the rods in the cervical spine. He also knew that the FDA had refused to approve these rods for cervical use, and that the rods could migrate into the brain if used in the cervical spine. This was the first time Dr. Farkas had operated using these rods in the cervical spine.

It was alleged in this lawsuit that the hospital had negligently credentialed Dr. Farkas, and following a trial the jury found against the hospital, awarding plaintiff $8,511,582, and his wife $2,925,000.

The primary issues raised by the hospital on liability involve the qualifications and testimony of plaintiffs expert on negligent credentialing, Arthur Shorr. Shorr has an MBA in hospital and healthcare administration from George Washington University and is board certified in healthcare administration by the American College of Healthcare Executives. He is currently a faculty member of George Washington University’s graduate program in healthcare administration in the School of Public Health. He was the chief operating officer at Cedars Sinai Hospital in Los Angeles during the 1980s. He is currently a consultant to hospitals and spends about one-third of his time as an expert witness in cases involving hospital administration.

The hospital argues that Shorr was not qualified to testify under section 766.102(7), Florida Statutes, which provides:

... [I]n a medical negligence action against a hospital, a health care facility, or medical facility, a person may give expert testimony on the appropriate standard of care as to administrative and other nonclinical issues if the person has substantial knowledge, by virtue of his or her training and experience, concerning the standard of care among hospitals, health care facilities, or medical facilities of the same type as the hospital, health care facility, or medical facility whose acts or omissions are the subject of the testimony and which are located in the same or similar communities at the time of the alleged act giving rise to the cause of action.

The hospital argues primarily that Shorr was not competent to testify as an expert on credentialing issues because he had not worked in a hospital for twenty-three years, had not consulted on credentialing for five years, and had no experience in hospital administration in Florida.

As to the last point, that Shorr had no experience as a hospital administrator in Florida, Florida hospitals are governed by the Joint Commission on Hospital Accreditation Standards, as- are hospitals all over the country. Carida v. Holy Cross Hosp., 424 So.2d 849 (Fla. 4th DCA 1982) (Joint Commission on Accreditation Standards established the procedural requirements to be used by all hospitals); Palm Springs Gen. Hosp. v. Valdes, 784 So.2d 1151 (Fla. 3d DCA 2001). In addition, Shorr has been accepted by the courts as an expert in credentialing cases in Florida as well as in other jurisdictions.

Whether an expert witness is qualified is a determination within the discretion of a trial court, McBean v. State, 688 So.2d 383 (Fla. 4th DCA 1997). The hospital has failed to demonstrate an abuse of discretion based on Shorr’s qualifications.

As to the substance of the claim, Shorr testified that the hospital’s bylaws met the community standards for credentialing. When a doctor first applies for privileges, the application contains a list of specific procedures that the doctor seeks privileges for, as well as space for other procedures not listed. The medical evaluation committee reviews both the doctor’s training and competence and makes a recommendation which goes to the board of trustees. Thereafter, ■ every two years each doctor must be recredentialed for each procedure he is seeking privileges for. When recredentialing every two years, the hospital can require reeducation or withdraw the privilege.

Shorr testified that, based on Dr. Far-kas’s testimony, it was apparent that he had never been required to demonstrate proficiency in any of the procedures he performed. Dr. Farkas had never demonstrated that he was competent to perform posterior cervical surgery, let alone such surgery using rod insertion. It was his opinion that Dr. Farkas was not even eligible to request the privilege to perform-the procedure. He noted that Dr. Farkas, by his own admission, was performing the procedure for the first time on the plaintiff and that the hospital had, in effect, simply given Dr. Farkas privileges which were unrestricted, in violation of its own regulations.

The hospital argues that the plaintiff failed to prove that Dr. Farkas was incompetent to perform posterior cervical fusion surgery with instrumentation in general, but it ignores the specific Luque rod problem. Dr. Farkas was using these rods “off label,” contrary to the manufacturer’s warning, and he was using these rods for the first time.

Plaintiff presented as an expert a neurosurgeon who testified that any properly credentialed neurosurgeon would have known that Luque rods cannot be used in the cervical spine due to the high probability that they will migrate into the brain. That testimony,'coupled with Dr. Farkas’s testimony, and Shorr’s testimony that the hospital had been negligent in failing to follow its credentialing regulations in regard to this procedure, was sufficient for a jury to have found that, but for the negligent credentialing; Dr. Farkas would not have been permitted to do this operation. Horowitz v. Plantation Gen. Hosp. Ltd. P’ship, 959 So.2d 176, 180 (Fla.2007) (hospital can be responsible for the negligence of an independent physician when it has failed to exercise due care in the selection and retention of that physician on its staff).

The hospital does have a meritorious claim as to one portion of the award to plaintiffs wife on her derivative claim. The jury itemized that claim between tangible and intangible damages, and as for the tangible damages, awarded her $225,000 for past lost services and $500,000 for future lost services. The only evidence supporting the amounts awarded for lost services was testimony by plaintiffs wife that plaintiff could no longer do household chores and yard work. A neighbor testified he was occasionally paid to help with the- chores but there was no testimony as to the amount he was paid, nor was there any expert testimony as to the value of the services plaintiff can no longer provide. The lack of evidence to support the amount awarded for loss of services makes the award excessive, and we accordingly reverse that portion of the award for a new trial. White Const. Co. v. Dupont, 430 So.2d 915 (Fla. 1st DCA 1983) (reversing for a new trial because of no relevant evidence substantiating the reasonable value of husband’s services), Rumsey v. Manning, 335 So.2d 25 (Fla. 2d DCA 1976).

The hospital also argues that the trial court erred in awarding attorney’s fees under section 766.209, Florida Statutes, which provides for voluntary binding arbitration, and the recovery of attorney’s fees by claimant where a defendant refuses a claimant’s offer to arbitrate and the claimant prevails at trial.

Section 766.207(2) requires that the claimant serve a request for voluntary binding arbitration within ninety days after service of claimant’s notice of intent to initiate litigation. It is undisputed in this case that plaintiff mailed the notice of intent to initiate litigation on September 4, and mailed the offer to arbitrate on December 4, which was the ninety-first day. Plaintiffs only argument to support the award of fees is to the effect that, even though the statute uses the word “service,” we should construe that to mean receipt by the defendant.

Service, as we know from rule 1.080(b), is “complete upon-mailing.” And it is obvious that the legislature understands the difference between service and receipt because in the very same statute the legislature used the word “receipt” to start the thirty-day period for accepting the offer of voluntary arbitration. § 766.207(3). The trial court accordingly erred in awarding attorney’s fees, because the offer to arbitrate was not timely. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003) (statutes awarding attorney’s fees, which are in derogation of the common law, must be strictly construed); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776 (Fla. 4th DCA 1999) (affirming denial of attorney’s fees under offer of judgment statute for failure to make offer within strict time requirements).

We have considered the other issues raised by the hospital and find them to be without merit. We accordingly affirm the judgment based on the jury verdict except for the award of $725,000 for lost services, which we remand for a new trial, and we reverse the award of attorney’s fees.

FARMER and GROSS, JJ., concur.'


author: PLEUS, J.

text:
    STATE of Florida, Appellant, v. Will Beacham PERKINS, Appellee.
    No. 5D07-1318.
    District Court of Appeal of Florida, Fifth District.
    Feb. 15, 2008.
    Rehearing Denied March 31, 2008.

      Bill McCollum, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellee.
   PLEUS, J.

The State appeals from an amended order dismissing a criminal prosecution pursuant to Florida Rule of Criminal Procedure 3.140.

The defendant was charged by information with driving while license suspended or revoked, having been twice previously convicted of the offense of driving while license suspended, a third degree felony. At arraignment, the defendant pled not guilty. Thereafter, the defendant filed a motion to dismiss, claiming that the information was not properly sworn. The trial court agreed, granted the motion and then entered an amended order dismissing the case.

On appeal, the State argues that the trial court erred in entertaining the motion under Florida Rule of Criminal Procedure 3.140(g), where the defendant pled to the merits, and further that the information was supported by sworn testimony and was otherwise valid. We agree with both contentions and accordingly, reverse.

On August 17, 2006, the defendant was stopped while driving a vehicle with an expired tag. When Deputy Blankenship ran a computer check of the defendant, he discovered that the defendant’s driver’s license was not valid. The deputy arrested the defendant for driving while license suspended and charged him by issuing a traffic citation.

After obtaining a copy of the defendant’s driving record, the prosecutor learned that the defendant had two prior convictions for driving while license suspended and charged the defendant by sworn information with one felony count of driving while license suspended after two prior convictions. The defendant was arraigned on January 24, 2007, and entered a plea of not guilty.

On February 5, 2007, the defendant filed a motion to dismiss the information on the basis that Deputy Blankenship’s charging affidavit did not contain sworn testimony that the defendant had two or more prior convictions for driving while license suspended. It further asserted that “counsel for the defendant is unaware of any testimony, taken under oath, that formed the basis of the enhanced charges.”

On March 8, 2007, the State filed a motion requesting the court take judicial notice of the defendant’s driving record.

On April 3, 2007, a hearing on the motion to dismiss was held. Defense counsel asserted that under Rule 3.140, the State was only permitted to charge a defendant with a felony based on testimony taken under oath. Defense counsel argued that the only testimony that had been taken was the charging affidavit of Deputy Blankenship, which did not mention the defendant’s prior record. The State countered that the information was based on the defendant’s driving record as well as the charging affidavit.

The trial court asked defense counsel why he entered a plea of not guilty if. he wanted to challenge the information, noting that Rule 3.140(g) states that no objection to an information on the ground that it was not signed or verified can be entertained after the defendant pleads to the merits. Defense counsel informed the court that he brought this issue to the attention of the court at arraignment and the court stated it remembered so.

The court then announced:

All right. I’ll grant the motion. I think we should have extended the arraignment and not entered any formal plea, but I do recall the discussion at the bench on that day when we were here for arraignments. I know the State wasn’t — was a different State Attorney; they weren’t here. But based on that, I — think your point is well taken. You did alert — alert us to the issue that you were going to be filing the motion, so I’ll find that it does fall without the excusa-tory language of (g) at the very end. So I’ll grant the motion.

The standard of review of a trial court order on a motion to dismiss is de novó. State v. Walthour, 876 So.2d 594 (Fla. 5th DCA 2004).

Florida Rule of Criminal Procedure 3.140(g) provides:

Signature, Gath and Certification; Information. An information charging the commission of a felony shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or Witnesses for the offense. An information charging the commission of a misdemeanor shall be signed by the state attorney, or a designated assistant state attorney, under oath stating his or her good fair in instituting the prosecution. No objection to an information on the ground that it was not signed or verified, as herein provided, shall be entered after the defendant pleads to the merits.

It has long been Florida law that technical deficiencies or defects in form may be waived by failure to make timely objection or by a plea to the merits. Champlin v. Cochran, 125 So.2d 565 (Fla.1961); Bryan v. State, 41 Fla. 643, 26 So. 1022 (1899). Rule 3.140(g) adopts this law in connection with, issues relating:to signing and verifying informations.

The contention that a defendant can plead to an information, yet nevertheless reserve the right to thereafter challenge technical deficiencies relating to signing or verification of the information, runs counter to the clear language of Rule 3.140(g). The reason for this procedural rule precluding objections to an information on the ground that it was unsigned or unverified after the defendant pleads to the merits of the cause is because such a defect can readily be cured if timely raised. Byrd v. State, 730 So.2d 382 (Fla. 3d DCA 1999). Under the defendant’s position, at what point would a purported reservation of the right to challenge these technical deficiencies expire? Rule 3.140(g) creates a clear line of demarcation, requiring technical challenges relating to the signing or verification of aspects of an information be brought before the defendant enters a plea to the merits or they are otherwise waived. Once a defendant pleads to the information, he can no longer object to the document on the ground that it was not properly signed or verified. To assert otherwise is to ignore the clear language of the rule. Not only was the defendant’s motion untimely, it also lacked merit.

Article I, section 15(a) of the Florida Constitution, requires that an information charging a felony be made under oath:

No person shall be tried for capital crime without presentment or indictment by a grand jury, or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court....

Rule 3.140(g) further amplifies this provision by providing in relevant part that:

An information charging the commission of a felony shall be signed by the state attorney or a designated assistant state attorney, under oath stating his or her good faith in instituting the prosecution and certifying that he or she has received testimony under oath from the material witness or witnesses for the offense....

The instant information was signed under oath by assistant state attorney James Dozier stating his good faith in filing the charge. It further recounts that Dozier received testimony under oath “from the material witness or witnesses, which if true would constitute the offense herein.” This reference was to the charging affidavit of Deputy Blankenship which averred that the defendant had been stopped for an expired tag and that during the stop, it was learned that the defendant’s drivers license was suspended, that defendant admitted he knew his license was not valid, and the deputy arrested him.

The defendant notes that Deputy Blankenship’s charging affidavit does not mention any other prior convictions for driving while license suspended and asserts that in the absence of sworn testimony to this effect, the felony charge could not be maintained. The State, however, claims the certified copy of the defendant’s driving record is sufficient.

In State v. Hartung, 543 So.2d 236 (Fla. 5th DCA 1989), this Court was confronted with the question of whether one who signs an information charging a felony must personally administer the oath to, and personally question and see and hear the testimony of the material witness or witnesses upon which charges are based. In answering this question in the negative, Judge Cowart explained for the Court as follows:

We hold that the testimony of such witnesses may be sworn to before anyone authorized to administer oaths and their testimony under oath may be given out of the presence of the state attorney or his designated assistant, and that sworn testimony documented or evidenced stenographically or electronically in the form of affidavits, depositions, video tapes, magnetic tapes, or otherwise, and the evidence of the sworn testimony of such material witnesses may be “received” and considered by the state attorney or his designated assistant who may then properly certify that he has “received testimony under oath from the material witness or witnesses for the offense” as provided in Florida Rule of Criminal Procedure 3.140(g).

543 So.2d at 237 (footnotes omitted).

The State points out that certified copies of the Department of Highway Safety and Motor Vehicles driving records are competent evidence, Kohler v. State, 534 So.2d 1213 (Fla. 5th DCA 1988), and are self-authenticating. Card v. State, 927 So.2d 200 (Fla. 5th DCA 2006). While this is true, it does not answer the question of whether such records, which themselves are unsworn, satisfy the requirements of Rule 3.140(g). The defendant argues that they do not, and that the felony charge was not adequately supported by sworn testimony.

It is undisputed that assistant state attorney Dozier relied on the sworn affidavit of Deputy Blankenship and it is clearly evident that Dozier relied on the certified driving record of the defendant because the information specifies the actual dates of the defendant’s previous convictions for driving while license suspended. Further, the State filed a motion requesting the court take judicial notice of the defendant’s driving record before the hearing on the motion to dismiss. Dozier- swore to his good faith in bringing the felony charge and it is unclear what additional sworn testimony the defendant deems was necessary under Rule 3.140(g). How would the requirement of the rule be in any way enhanced by making personnel with the Department of Highway Safety and Motor Vehicles or the investigating police officer swear to the content of the defendant’s certified driving record? Such person would not even have personal knowledge that the defendant actually committed those prior offenses so that such an oath would essentially be worthless. Surely the prosecutor was not required to obtain affidavits from people who would have had first-hand knowledge with regard to those prior offenses, offenses which were committed years earlier. The prosecutor could rely on the certified copy of the defendant’s driving record. The prosecutor’s oath that he received testimony under oath “which, if true, would constitute the offense herein,” and that the prosecution was filed in good faith was sufficient. The trial court erroneously dismissed the information.

The amended order dismissing the felony information is reversed and the cause remanded for further proceedings.

REVERSED AND REMANDED.

PALMER, C.J., and MONACO, J., concur.

      . The driving record contained the following certification:
      In compliance with section 322.201, F.S., I Lydia Gardner, Clerk of the Circuit Court County of Orange, State of Florida, do hereby certify that this is a true and correct machine imprint transcript of the above named subject’s driving record as taken from the official records on file with the Department of Highway Safety and Motor Vehicles.-