STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KATHLEEN BEHAN, MARY LOU BEHAN ) and GERALD BEHAN, )
)
Petitioners, )
)
vs. ) CASE NO. 93-2972N
)
FLORIDA BIRTH-RELATED )
NEUROLOGICAL INJURY )
COMPENSATION ASSOCIATION, )
)
Respondent. )
________________________________)
FINAL ORDER
Pursuant to notice, a formal hearing was conducted in this case on July 14, 1993, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioners Kathleen Behan, Mary Lou Behan and Gerald Behan:
Gary Cohen, Esquire
Law Firm of Sheldon J. Schlessinger, P.A. 1212 Southeast Third Avenue
Fort Lauderdale, Florida 33316
For Respondent Florida Birth-Related Neurological Injury Compensation Association:
W. Douglas Moody, Jr., Esquire, Taylor, Brion, Buker & Greene
225 South Adams Street, Suite 250 Post Office Box 11189 Tallahassee, Florida 32302-3189
For Plantation General Hospital:
John W. Mauro, Esquire
Billing, Cochran, Heath, Lyles & Mauro 888 Southeast Third Avenue, Suite 301 Fort Lauderdale, Florida 33316
For Mariano J. Rodriguez, Jr., M.D.: Mark Baxter, Esquire
Cooney, Haliczer, Mattson, Lance,
Blackburn, Pettis & Richards, P.A.
301 East Las Olas Boulevard Post Office Box 14546
Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUE
Whether Kathleen Behan has suffered an injury for which she and her parents, Mary Lou and Gerald Behan, should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Plan, as the Behans have alleged in their claim for compensation?
PRELIMINARY STATEMENT
On or about November 4, 1991, Mary Lou and Gerald Behan, individually and on behalf of their minor daughter Kathleen Behan, filed with the Division of Workers' Compensation of the Department of Labor and Employment Security (hereinafter referred to as "DWC") a claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan. The Behans noted in their claim that it was being filed "under protest." The nature of the "protest" was described as follows:
This claim is being presented under protest and with the belief and the contention that Florida Statutes 766.301-316 is unconstitutional. Specifically, it is the [Petitioners'] contention that the Florida Birth-Related Neurological Injury Compensation Plan violates various provision[s] in both
the State and Federal Constitutions including, but not limited to: Sections 2, 9, 21, and
22 of Article 1 of the Florida Constitution; [S]ection 6 of Article 3 of the Florida Constitution; and the access to Courts[,] Equal Protection and Due Process clauses of the United States Constitution. It is the [Petitioners'] contention that they are constitutionally entitled to a jury trial for their claims against the named prospective defendants for the total amount of their actual damages and that they cannot be constitutionally compelled to submit their claims to the Florida Birth-Related Neurological Injury Compensation Plan. The fact that claimants are submitting this claim should in no way be deemed a waiver of those rights and should not in any way be considered an admission that the above statute was constitutional as written and applied.
DWC served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the Behans' claim on or about November 9, 1991. NICA reviewed the claim, and on or about April 1, 1992, gave written notice of its determination "that such claim [was] not a 'birth-related neurological injury' within the meaning of Section 766.302(2), [Florida Statutes](1991)" and of its desire that the Judge of Compensation Claims assigned the case "enter an order
setting a hearing in this cause on the issue of the compensability of this claim."
On or about March 23, 1993, the Behans filed a motion requesting that the assigned Judge of Compensation Claims, Judge Judith A. Brechner, enter an "Order of Non- Compensability" on the grounds that the obstetrician who delivered Kathleen, Mariano J. Rodriguez, M.D., as well as the hospital where she was born, Plantation General Hospital (hereinafter referred to as "Plantation"), "failed to comply with [the notice requirements of] Section 766.316, Fla.
Stat.," which, the Behans argued in their motion, was "a condition precedent to the [Florida Birth-Related Neurological Injury Compensation] Plan's applicability." An evidentiary hearing on the Section 766.316/notice issue raised in the Behans' motion was held on April 16, 1993, before Judge Brechner. Dr. Rodriguez and Plantation were permitted to participate in the hearing.
Effective May 15, 1993, by operation of Chapter 93-251, Laws of Florida, jurisdiction to hear and decide all pending and future claims for compensation under the Florida Birth- Related Neurological Injury Compensation Plan was transferred to the Division of Administrative Hearings (hereinafter referred to as the "Division"). The only evidentiary proceedings to have been held before Judge
Brechner in the instant case prior to such transfer were those she conducted on April 16, 1993, relating to the Behans' motion for an "Order of Non-Compensability." As of the date of the transfer, Judge Brechner had not yet ruled on the motion, nor had she made any determination regarding the Behans' entitlement to compensation. On June 7, 1993, the Division received from Judge Brechner the file in the instant case.
On June 21, 1993, the Division issued a Notice of Hearing advising the parties that an evidentiary hearing before a Division-assigned Hearing Officer would be held on July 14, 1993, on the following issues:
Claimant[s'] motion for determination of non- compensability, and whether, as required by Section 766.309(1)(a) and (b), Florida Statutes, the injury claimed i[s] a birth- related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.
In conjunction with the Notice of Hearing, a Prehearing Order requiring the parties to file a prehearing stipulation was also issued. In the prehearing stipulation that they filed in response to the Prehearing Order, the Behans and NICA described the "nature of the controversy" in the instant case as follows:
The nature of this controversy is as follows: (1) whether the minor, Kathleen
Behan, suffered a birth-related neurological injury to her brain or spinal cord during labor, delivery, or resuscitation in the immediate post-delivery period in a hospital caused by oxygen deprivation or mechanical injury, and as raised by the Petitioners:
(2) whether the treating obstetrician gave notice of his participation in the Plan to the Petitioner Mary Lou Behan in accordance with Section 766.316, Florida Statutes; (3) whether the notice required pursuant to Section 766.316 is a condition precedent to the application of the exclusive remedy of NICA; and, (4) whether the review of this cause by the medical review panel as established by Section 766.308, Florida Statutes, is a condition precedent to the exclusive remedy of NICA.
The Petitioner[s have] filed a Petition for Compensation, under protest, and generally maintain that the participating physician who delivered Kathleen Behan did not give notice of his participation in the Plan and that this case has not been reviewed by the medical review panel and that all of the above render the Plan inapplicable to the Petitioners.
The Respondent's position is that Kathleen Behan did not suffer a birth-related neurological injury during labor, delivery, or in the immediate post-delivery period in a hospital caused by oxygen deprivation or mechanical injury, and this being the case, all other matters are moot.
The evidentiary hearing noticed in the Division's June 21, 1993, Notice of Hearing was held before the undersigned Hearing Officer as scheduled on July 14, 1993. The Behans and NICA appeared and fully participated in the proceeding. Consistent with the prior ruling of Judge Brechner, the Hearing Officer allowed Dr. Rodriguez and
Plantation, who too made appearances, to also participate in the hearing, but he limited the scope of their participation to those matters relating to the Section 766.316/notice issue raised by the Behans.
The live testimony of only one witness, Pierre J. Bouis, M.D., a board certified obstetrician and professor of obstetrics and gynecology at the University of South Florida, was presented at the hearing. Dr. Bouis testified as an expert in obstetrics and gynecology on behalf of NICA. In addition to the live testimony of Dr. Bouis, a total of six exhibits were offered and received into evidence: Petitioner's Exhibit 1, a deposition of Dr. Rodriguez taken May 3, 1993; Petitioner's Exhibit 2, a sworn affidavit of Bernard N. Nathanson, M.D., dated October 15, 1991; Petitioner's Exhibit 3, pages 95 to 99 and pages 132 to 134 of the transcript of the April 16, 1993, evidentiary hearing held before Judge Brechner; Respondent's Composite Exhibit 1, the medical records that the Behans sent to DWC in connection with their claim for compensation; Respondent's Exhibit 2, the deposition of Robert Francis Cullen, Jr., M.D., taken June 9, 1993; and Dr. Rodriguez's and Plantation's Joint Exhibit 1, a transcription of the complete testimony given by Mary Lou Behan and Gerald Behan
at the April 16, 1993, evidentiary hearing held before Judge Brechner.
While it did not formally offer it into evidence as one of its exhibits, NICA requested that the Hearing Officer accept as the report of the medical advisory panel and consider, pursuant to Section 766.308(1), Florida Statutes, in determining the compensability of the Behans' claim, a letter written to NICA's Executive Director by James B. Perry, M.D., one of the three members of the panel, in which Dr. Perry indicated that he did "not feel this case falls under the purview of the neurologic injury compensation act as defined by Section 766.302(2), Florida Statutes." At the urging of the Behans, the Hearing Officer denied NICA's request because there was no indication that Dr. Perry's recommendation represented the views of the majority of the panel members and for the further reason that his written recommendation was not filed with the Division "at least 10 days prior to the date set for hearing" as required by Section 766.308(1), Florida Statutes.
At the close of the evidentiary portion of the hearing
on July 14, 1993, the Hearing Officer, on the record, advised that post-hearing submittals had to be filed no later than 15 days following the Hearing Officer's receipt of the hearing transcript and that Dr. Rodriguez and
Plantation would be permitted to address only the 766.316/notice issue in their post-hearing submittals. The hearing transcript was received by the Hearing Officer on July 21, 1993. NICA and Dr. Rodriguez filed separate proposed orders on August 6, 1993. Dr. Rodriguez's proposed order was accompanied by a memorandum of law. The Behans filed their proposed order on August 9, 1993. On August 16, 1993, Plantation filed notice of its "joinder in," and adoption of, Dr. Rodriguez's proposed order and memorandum of law. All of the proposed orders, as well as Dr.
Rodriguez's memorandum of law, have been carefully reviewed and considered by the Hearing Officer.
NICA's and Dr. Rodriguez's proposed orders contain what are labeled as "findings of fact." These "findings of fact" are specifically addressed in the Appendix to this Final Order.
FINDINGS OF FACT
Based upon the evidence adduced at the July 14, 1993, Division-conducted hearing in this case, and the record as a whole, the following Findings of Fact are made:
Kathleen Behan is the natural daughter of Mary Lou and Gerald Behan.
She was born on November 30, 1989, at Plantation General Hospital in Broward County, Florida.
Her birth weight was in excess of 2500 grams.
Kathleen was delivered by caesarian section performed by the family's obstetrician, Mariano J. Rodriguez, Jr., M.D., after her mother had experienced a spontaneous rupture of the fetal membrane.
At the time of Kathleen's birth, Dr. Rodriguez was a participant in the Florida Birth-Related Neurological Injury Compensation Plan.
Kathleen had an Apgar score of 6 one minute after birth and an Apgar score of 9 five minutes after birth.
Apgar scores reflect the attending physician's or nurse's assessment of the newborn infant's well-being based upon clinical observations regarding the infant's heart rate, respiratory effort, color, muscle tone, and reflexes. The higher the score, the greater the state of well being. The highest score attainable is a 10.
Apgar scores are commonly used to determine if a newborn infant has suffered a neurological injury of a substantial and permanent nature during labor or delivery or in the immediate post-delivery process.
Kathleen's Apgar scores are not consistent with her having suffered such a birth-related injury.
After her condition was evaluated, Kathleen was taken from the delivery room to Plantation's "well-baby" nursery.
She remained there without incident until December 2, 1989, when she was found asystolic in her crib after having experienced an acute life-threatening event or ALTE.
Kathleen was resuscitated and survived the incident.
She, however, has neurological impairment.
The neurological impairment from which she now suffers was not the product of oxygen deprivation or mechanical injury that occurred during labor or delivery or in the immediate post-delivery period.
CONCLUSIONS OF LAW
The Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth- related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Fla. Stat.
The injured "infant, his personal representative, parents, dependents, and next of kin" may seek compensation
under the Plan by filing a claim for compensation with the Division within five years of the infant's birth. Sections 766.303(2), 766.305(1) and 766.313 Fla. Stat.
NICA, which administers the Plan, has "45 days from the date of service of a complete claim . . . in which to file a response to the petition and to submit relevant written information relating to the issue of whether the injury alleged is a birth-related neurological injury." Section 766.305(3), Fla. Stat.
A "birth-related neurological injury," as that term is used in Sections 766.301 through 766.316, Florida Statutes, is "an injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Section 766.302(2), Fla. Stat.
There is no entitlement to compensation under the Plan for an injury that does not fall within this definition.
If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant(s), provided that the
award is approved by the Division Hearing Officer to whom the claim has been assigned. Section 766.304(4), Fla. Stat.
If, on the other hand, NICA disputes the claim, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Fla. Stat.
In discharging this responsibility, the Hearing Officer must
make the following determinations based upon all available evidence:
Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the hearing officer, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall
arise that the injury is a birth-related neurological injury as defined in s.
766.302(2).
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.
How much compensation, if any, is awardable pursuant to s. 766.31.
Section 766.309(1), Fla. Stat.
"If the hearing officer determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at birth, he [is required to] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Fla. Stat.
Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Fla. Stat.
In the instant case, NICA has disputed the Behans' claim that they are entitled to compensation under the Plan.
Having carefully reviewed the evidentiary record developed in this case, the Hearing Officer agrees with NICA that Kathleen Behan has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes, and that therefore the Behans' claim is non-compensable under the Plan, inasmuch as the preponderance of the record evidence establishes that, although Kathleen has neurological impairment, such impairment is not the result of "oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate post-delivery period."
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
ORDERED that the Behans' claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan is hereby rejected on the ground that the claimed injury is not a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of August, 1993.
___________________________________ STUART M. LERNER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1993.
ENDNOTES
1/ The "prospective defendants" named in the claim were: Health Trust Incorporated, The Hospital Company, d/b/a Plantation General Hospital; Sudha G. Doshi, M.D., P.A.; John R. Williams, M.D.; Neonatology Certified, P.A.; Mariano J. Rodriguez, M.D.; Lauderdale Gynecologic Associates, P.A.; and Lauderdale OB/GYN Associates, P.A.
2/ The statutory requirement to which Petitioners refer is found in Section 766.303(2), Florida Statutes, which provides as follows:
The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, his personal
representative, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with
the labor, delivery, or immediate post-delivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury; except that a civil action shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit
is filed prior to and in lieu of payment of
an award under ss. 766.301-766.316. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311.
3/ As the Hearing Officer stated on the record at the July 14, 1993, hearing, he is without authority to, and therefore will not, resolve these constitutional issues raised by the Behans in this administrative proceeding. See Palm Harbor Special Fire Control District v. Kelly, 516 So.2d 249, 250 (Fla. 1987)("it is axiomatic that an administrative agency has no power to declare a statute void or unenforceable").
4/ Section 766.316, Florida Statutes, provides as follows:
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 thereof as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms provided by [NICA] and shall include a clear and concise explanation of a patient's rights and limitations under the plan.
5/ If the Behans' claim, which they filed "under protest," is non-compensable under the Plan, they would not be foreclosed, by operation of Section 766.303(2), Florida Statutes, from pursuing, as is their preference, a civil medical malpractice action, even without "clear and convincing evidence of bad faith or malicious purpose or
willful and wanton disregard of human rights, safety or property."
6/ Section 766.308, Florida Statutes, provides in pertinent part as follows:
(1) Each claim filed with the division under ss. 766.301-766.316 shall be reviewed by a medical advisory panel of three qualified physicians appointed by the Insurance Commissioner, of whom one shall be a pediatric neurologist or a neurosurgeon, one shall be an obstetrician, and one shall be a neonatologist or a pediatrician. The panel shall file its report, with its recommendation as to whether the injury for which the claim is filed is a birth-related neurological injury, with the division at least 10 days prior to the date set for hearing. At the request of the division, at least one member of the panel shall be available to testify at the hearing.
The hearing officer shall consider, but not be bound by, the recommendation of the panel.
7/ Neither Dr. Rodriguez nor Plantation had filed with the Division at any time prior to the July 14, 1993, hearing a petition pursuant to Rule 60Q-2.010, Florida Administrative Code, requesting leave to intervene in this case for purposes of litigating any other issue.
8/ It is apparent from a reading of Section 766.308(1), Florida Statutes, which mandates that there be an obstetrician on the three-member medical advisory panel responsible for making a timely recommendation to the Hearing Officer "as to whether the injury for which the claim is filed is a birth-related neurological injury," that the Legislature has determined that obstetricians, such as Dr. Bouis, are qualified to render an expert opinion on the subject.
9/ Dr. Perry's letter was received by the Division at 4:02
p.m. the day prior to the hearing.
10/ The Behans' proposed order, on the other hand, consists exclusively of argument and does not contain any "findings of fact" that are labelled as such.
11/ An acute life-threatening event or ALTE is what physicians formerly referred to as "a near-miss SIDS."
12/ She is presently under the care of a neurologist, Robert Francis Cullen, Jr., M.D.
13/ Prior to May 15, 1993, the effective date of Chapter 93-251, Laws of Florida, such claims had to be filed with DWC and they were heard and determined by the Judges of Compensation Claims.
14/ Given the Hearing Officer's determination that the Behans' claim is non-compensable under the Plan because Kathleen has not suffered a birth-related neurological injury, it is unnecessary for him to, and therefore he will not, determine whether the claim is non-compensable for the additional reasons argued by the Behans.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2972N
The following are the Hearing Officer's specific rulings on the "findings of fact" set forth in NICA's and Dr. Rodriguez's proposed orders:
NICA's Proposed "Findings of Fact"
1-10. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Final Order.
11. First and third sentences: Accepted and incorporated in substance; Second sentence, before first comma and after second comma: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Remaining portion of second sentence: Accepted and incorporated in substance.
12-13. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer.
Accepted and incorporated in substance.
Rejected because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony.
Rejected because it is more in the nature of argument regarding the state of the evidentiary record than a finding of fact.
Dr. Rodriguez's Proposed "Findings of Fact"
1. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
2-3. Accepted and incorporated in substance.
4. Not incorporated in this Recommended Order because, even if true, it would not alter the ultimate outcome of the instant case.
5-6. Rejected because they are more in the nature of summaries of testimony than findings of fact based upon such testimony.
7. Rejected because it is more in the nature of argument regarding the credibility of testimony than a finding of fact.
COPIES FURNISHED:
Gary Cohen, Esquire
Law Firm of Sheldon J. Schlessinger, P.A. 1212 Southeast Third Avenue
Fort Lauderdale, Florida 33316 (by certified mail)
W. Douglas Moody, Jr., Esquire, Taylor, Brion, Buker & Greene
225 South Adams Street, Suite 250 Post Office Box 11189
Tallahassee, Florida 32302-3189 (by certified mail)
John W. Mauro, Esquire
Billing, Cochran, Heath, Lyles & Mauro 888 Southeast Third Avenue, Suite 301
Fort Lauderdale, Florida 33316 (by certified mail)
Mark Baxter, Esquire
Cooney, Haliczer, Mattson, Lance, Blackburn, Pettis & Richards, P.A.
301 East Las Olas Boulevard Post Office Box 14546
Fort Lauderdale, Florida 33302 (by certified mail)
David King, Esquire
524 Andrews Avenue Third Floor, East Wing
Fort Lauderdale, Florida 33301
NOTICE OF RIGHT TO JUDICIAL REVIEW
A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
============================================================
DISTRICT COURT OPINION
============================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JULY TERM 1995
KATHLEEN BEHAN, MARY LOU BEHAN and GERALD BEHAN,
Appellants,
CASE NO. 93-2862
v. L.T. CASE NO. 93-2972N
FLORIDA BIRTH -RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,
Appellee.
_____________________________/ Opinion filed December 27, 1995
Appeal from the State of Florida Division of Administrative Hearings.
Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, and Sheldon J. Schlesinger, Fort Lauderdale, for appellants.
Douglas Moody, Jr. of Taylor, Brion, Buker and Greene, P.A., Tallahassee, and David W. Black of Atkinson, Diner, Stone, Black & Mankuta, P.A., Hollywood, for appellee.
James S. Haliczer and Pamela R. Kittrell of Cooney, Haliczer, Mattson, Lance, Blackburn, Pettis & Richards, P.A., Fort Lauderdale, amicus curiae for M.J. Rodriguez, M.D.
John W. Mauro of Billing, Cochran, Heath, Lyles & Mauro, P.A., Fort Lauderdale, amicus curiae for Healthtrust, Inc. The Hospital Company d/b/a Plantation General Hospital, etc.
PER CURIAM.
Appellants filed an administrative claim pursuant to Florida's Birth-Related Neurological Injury Compensation Act (NICA), but did so under protest contending that they were not given notice as required by section 766.316, Florida Statutes (1993), and that NICA was, therefore, inapplicable. The hearing officer refused to expressly rule upon the issue of notice, but proceeded to make the following finding:
Having carefully reviewed the evidentiary record developed in this case, the Hearing Officer agrees with NICA that Kathleen Behan has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes, and that therefore the Behans' claim is non-compensable under the Plan . .
Having considered and decided upon appellant's claim, the hearing officer assumed jurisdiction and implicitly concluded that notice is not a condition precedent to the exclusive jurisdiction of the agency.
Appellants raise two points in this appeal. First, they contend that the notice requirement of section 766.316 is a condition- precedent to the applicability of NICA.
They also contend that the hearing officer erred in failing to strictly adhere to the provisions relating to the medical advisory panel report. We need not address appellants'
second point on appeal, since this court concluded in Mills
v. North Broward hospital, 20 Fla. L. Weekly ____, ____
(Fla. 4th DCA Dec. 20, 1995), that:
the failure to give notice to plaintiffs before the provision of medical services that the doctors had elected participation in the Neurological Injury Compensation Act deprives the agency of its exclusive jurisdiction .
In the instant case, appellants' obstetrician failed to provide the statutorily required notice. The hearing officer consequently lacked jurisdiction to consider whether the child had incurred a birth-related injury as contemplated by the plan. See also Braniff v. Galen of Florida Inc., 20 Fla. L. Weekly D2140 (Fla. 1st DCA Sept.
11, 1995); Turner v. Hubrich, 656 So.2d 970 (Fla. 5th DCA 1995). Accordingly, we reverse the hearing officer's order for lack of jurisdiction. We certify the same question as that certified in Mills as being of great public importance:
DOES SECTION 766.316, FLORIDA STATUTES (1993), REQUIRE THAT HEALTH CARE PROVIDERS GIVE PRE- DELIVERY NOTICE TO THEIR OBSTETRICAL PATIENTS 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? REVERSED.
GLICKSTEIN, DELL and FARMER, JJ., concur.
M A N D A T E
from
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT
This cause having been brought to the Court by appeal, and after due consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED that such further proceedings be had in said cause as may be in accordance with the
opinion of this Court, and with the rules of procedure and laws of the State of Florida.
WITNESS the Honorable Bobby W. Gunther, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court at West Palm Beach, Florida on this day.
DATE: January 12, 1996
CASE NO.: 93-2862
COUNTY OF ORIGIN: State of Florida, Division of Administrative
Hearings
T.C. CASE NO.: 93-2972N
STYLE: Behan v. Florida Birth-Related
___________________________________ Marilyn Beuttenmuller, Clerk District Court of Appeal
Fourth District
ORIGINAL TO: State of Florida, Division of Administrate Hearings
cc: | Joel S. Perwin | John W. Mauro |
Sheldon J. Schlesinger | James S. Haliczer | |
W. Douglas Moody, Jr. | David W. Black. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 12, 1996 | Mandate | |
| Dec. 27, 1995 | Opinion | |
| Aug. 31, 1993 | DOAH Final Order | Evidence including that relating to Apgar scores, established that neurolog- ical impairment not birth-related and therefore not compensable under plan. |
