STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL BRENT DAVIS and LOREN DAVIS, )

as parents and natural guardians ) of CARL BRENT DAVIS, II, a deceased ) minor and CARL BRENT DAVIS and ) LOREN DAVIS, individually, )

)

Petitioners, )

)

vs. ) Case No. 93-3315N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to the parties' agreement, this case came on for resolution on the parties' agreed record.1

STATEMENT OF THE CASE

On June 1, 1993, Carl Brent Davis and Loren Meadows Davis, individually and as parents and natural guardians of Carl Brent Davis, II, a minor, filed a petition (claim) with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan"), pursuant to Section 766.301, et seq., Florida Statutes. DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of

the claim on June 17, 1993. Following its review of the claim, NICA gave notice to Petitioners' counsel by letter of

September 3, 1993, that:

. . . the Association . . . agrees that Carl Brent Davis, II suffered a birth-related neurological injury as defined in Section 766.302(2), Florida Statutes.

We are prepared to provide medical benefits as provided by Section 766.31(a) and are willing to offer the full $100,000.00 as provided in Section 766.31(1)(b). Please contact me so the details of this payment can be worked out.

In addition, please forward to this office, time and expense records so that we may reach agreement on your attorney's fees as per Section 766.31(1)(c).2

Notwithstanding NICA's acknowledgment of the compensability of the claim, Petitioners requested that further consideration of the NICA claim be abated pending the resolution of the "lack of notice issue" they had raised in a civil case in Polk County, Florida, regarding the same subject matter. Since the law of Florida was unsettled on the issue of whether notice to the obstetrical patient was a condition precedent to invoking the Plan as the patient's exclusive remedy, consideration of the claim was deferred on a number of occasions as the issue was considered by successive levels of the judicial system. Finally, on May 1, 1997, the Florida Supreme Court issued its opinion in Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 309

(Fla. 1997), wherein it held 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." That opinion became final July 1, 1997, following denial of a petition for rehearing.

Given the resolution of Galen, an order was entered on July 30, 1997, which accorded the parties 14 days to show good cause as to why a hearing should not be promptly scheduled to address whether NICA's acceptance of the claim for compensation should be approved. Neither party responded to that order, and by order of August 19, 1997, a hearing was scheduled for September 2, 1997, to address whether NICA's acceptance of the claim should be approved.

During the course of the hearing on September 2, 1997, Petitioners first disclosed to NICA that they had pursued their civil action to a conclusion as to one attending obstetrician (Dr. Mancini), and the hospital (Lake Wales Hospital), albeit, not at the time, with the other attending obstetrician (Dr.

Campbell). Consequently, a status conference was scheduled for September 17, 1997, to accord NICA an opportunity to investigate the status of the civil action and to review its assessment as to the compensability of the claim.

At the hearing of September 17, 1997, NICA agreed that the infant suffered a "birth-related neurological injury" and that

both Dr. Mancini and Dr. Campbell were "participating physician[s]" at the time of birth; however, as a consequence of the disposition of the civil claims, NICA contended that any claim Petitioners had under the Plan was waived, extinguished, or otherwise barred. Therefore, a hearing was scheduled for November 10, 1997, to address the issue raised by NICA unless, prior to the hearing date, the parties were able to stipulate to an agreed record. Such an agreement was reached, with the original stipulation, entitled "Agreed Record of Counsel" dated November 6, 1997, and filed November 17, 1997, and the supporting documents filed November 12, 1997, under cover letter of Respondent's counsel dated November 10, 1997.

The agreed record having been filed, the parties were accorded until November 24, 1997, to file any proposed final orders or memoranda in support of their respective positions.3 The parties elected to file such proposals or memoranda and they have been duly considered.

AGREED RECORD OF COUNSEL

1. By stipulation, the parties have agreed to the following facts:

   1. That Carl Brent Davis, II, was born in Lake Wales Hospital on February 2, 1990, and that he expired on August 1, 1997.

   2. That Carl Brent Davis and Loren M. Blackwelder are the natural parents and have petitioned to be the court-appointed

      co-personal representatives of the estate of Carl Brent Davis, II.

   3. That the physicians who provided the obstetrical and gynecological services at the

      time of Carl Brent Davis, II's, birth were

      S. Ronald Campbell, M.D. ("Campbell"), and Joseph Anthony Mancini, M.D. ("Mancini").

   4. That both Campbell and Mancini were, at all times material hereto, "participating physician(s)" in the Florida Birth-Related Neurological Injury Compensation Plan as that term is defined in F.S. §766.302(7).

   5. That Carl Brent Davis, II, suffered serious and irreversible neurological injury during the birthing process and sustained

      "birth-related neurological injury" as that term is defined by F.S. §766.302(2).

   6. That the Lake Wales Hospital, Polk County, Florida, is the hospital where Carl Brent Davis, II, suffered his injuries.

   7. The injury of Carl Brent Davis, II, occurred in Polk County, Florida, and falls within the jurisdiction of the Hearing Officer [Administrative Law Judge]4 of administrative hearings.

   8. That under certificate of service dated May 27, 1993, Petitioners duly and properly filed with the Administrative Court [DOAH] a Petition for Benefits pursuant to F.S.

      §766.301.

   9. That prior to the final hearing, or any administrative hearing on the issue of entitlement to benefits, the Florida Birth- Related Neurological Injury Compensation Association (hereinafter referred to as "Association") offered to jointly petition for entry of an order by this Honorable Court [DOAH] approving all claims arising out of the birth-related neurological injury suffered by Carl Brent Davis, II.

   10. Specifically, by letter of September 3, 1993, NICA accepted the claim as compensable, predicated upon the following:

       (a.) That the claimants shall receive from the Association a lump sum payment of

       $100,000.00;

       (b.) That the Association shall pay all benefits, past and future, as authorized by F.S. §766.31(c);

       (c.) That the Association would pay Petitioners' attorney, Karl F. Pansler, a reasonable sum for services and for certain expenses incurred in the representation of the Petitioners;

       (d.) That the Petitioners would release the Association and its participants from any and all liability.

   11. That pursuant to an Order dated June 18, 1993, from this Honorable Court

       [DOAH], Petitioners filed a response under certificate of service dated June 30, 1993, wherein this Honorable Court [DOAH] was Informed of the parties' mutual agreement that this claim was a "compensable claim." This was NICA's position at that time.

   12. That under date of March 10, 1994, Ms. Lynn Dickinson, the Executive Director of the Association, specifically informed this Honorable Court [DOAH] that the Association accepted compensability and offered a stipulation to the parents. More specifically, the Association offered to pay among other things, $100,000.00 to the parents and a reasonable attorney's fee.

   13. (a.) That on August 6, 1992, Petitioners filed suit against Lake Wales Medical Center, Lake Wales Medical Center Association, Inc., S. Ronald Campbell, M.D.,

       J. Anthony Mancini, M.D., and Hardman, Campbell, and Mancini, alleging negligence in the birthing of their child, Carl Brent Davis, II.

       (b.) In their responsive pleadings to the Complaint, Lake Wales Hospital and Drs.

       Campbell and Mancini asserted that they were immune from liability pursuant to their participation in the NICA Plan. All Defendants filed Motions to Dismiss. In addition, Dr. Campbell filed a Motion for Summary Judgment asserting the NICA immunity.

       (c.) By Order entered on March 18, 1994, the Circuit Court granted the Motions to Dismiss of all three Defendants and allowed the Petitioners to file an Amended Complaint to assert lack of notice under §766.316, Florida Statutes. The Petitioners filed an Amended Complaint on May 24, 1994, and specifically alleged that all of the Defendants failed to provide notice to the Plaintiffs in accordance with §766.316, Florida Statutes. This allegation allowed the Amended Complaint to state a cause of action and to proceed forward in light of the Court's Order of March 18, 1994.

   14. That the notice issue under F.S.

       §766.316 was litigated extensively in the civil tort action arising out of this incident.

   15. (a.) Dr. Campbell testified by way of affidavit that he complied with §766.316 by providing notice to obstetrical patients as to his participation in the Florida Birth- related Neurological Injury Compensation Plan.

       (b.) Dr. Mancini and Lake Wales Hospital filed Motions to Dismiss. Dr. Campbell filed a Motion to Dismiss/Judgment on the Pleadings/Summary Judgment. In the Petitioners' "Summary Brief" in response to those motions, the Petitioners contended that the contention of Drs. Mancini and Campbell that notice had been given based upon the normal business practices was mere speculation in that they had no specific knowledge of giving notice of the NICA Plan. The Petitioners further asserted that Lake Wales gave notice of the NICA Plan after delivery, which they contended was insufficient.

       (c.) Further, in conjunction therewith,

       the Petitioners filed the Affidavit of Loren Davis, the mother, in which she affirmatively swore that she did not receive notice of the NICA Plan from the obstetricians, Campbell and Mancini, during her prenatal care. She further averred that Lake Wales did not provide her with notice of its participation in NICA prior to the delivery of her child.

       She further averred that had she been informed of NICA, she would have obtained other obstetrical health care.

   16. (a.) That all of the respective motions to dismiss and/or for summary judgment were denied by the Honorable Oliver L. Green, Jr., by way of a written Order dated October 14, 1994.

       (b.) The Court ruled that notice was a condition precedent, but declined to find that notice must be given prior to delivery, stating that it would depend upon the facts of the case. The Court found that the Petitioners adequately pleaded that the Mother, Loren Davis, was not given notice, and that there remained questions of fact on the notice issue precluding summary judgment. Thus, based upon the Petitioners' contention that notice had not been adequately provided by the health care practitioners, they were allowed to proceed with their medical malpractice action.

       (c.) That on June 14, 1996, participating

       physician Campbell filed for bankruptcy in the United States Bankruptcy Court, Middle

       District of Florida, and that a Discharge of Debtor was ordered on October 10, 1996.

       (d.) The Petitioners filed a Proof of Claim and subsequently an Amended Proof of Claim within the Bankruptcy Court. This Amended Proof of Claim was based upon the allegations of the Amended Complaint, which was specifically made an exhibit to the Amended Proof of Claim, which was filed for the sum of $2,700.00.

       (e.) This Amended Proof of Claim was not filed timely by the Petitioners and the Trustee in Bankruptcy raised an objection to the late-filed claim. The Bankruptcy Court overruled the Trustee's objection and allowed the Petitioners' claim as a general unsecured claim, which was not entitled to distribution except to the extent that there are surplus funds. Specifically, pursuant to the notice of Trustee's Preliminary Report of Estate and Applications for Compensation, dated

       August 29, 1997, the Bankruptcy Trustee referenced the allowed general unsecured late-filed claim of the Petitioners in the

       allowed amount of $2,700.00 and indicated the proposed payment would be 98.14% or

       $2,649.73. The Petitioners have received a distribution from the Bankruptcy of Dr.

       Campbell (A check in the amount of $2,649.73 was received on 10/18/97, but said amounts have not been accepted by the Petitioners and the check has not been negotiated pending outcome of this particular proceeding.) based upon having affirmatively asserted a claim therein.

   17. That by way of the written Order from the Honorable Robert A. Young, the claims asserted against Defendant, Campbell, by Petitioners in the underlying civil suit were severed and abated as a result of Defendant, Campbell, filing bankruptcy. Further, the actions against all remaining Defendants, Lake Wales Hospital, Lake Wales Hospital Association, Inc., and J. Anthony Mancini, MD., were allowed to proceed.

   18. (a.) That the claims against Defendants, Lake Wales Hospital and J. Anthony Mancini, M.D., were mediated on December 20, 1996, and a confidential settlement agreement was reached between the

       parties settling all claims, except those claims remaining against Defendant, Campbell.

       (b.) The Petitioners settled their claim against Dr. Mancini for the sum of

       $250,000.00, representing the limits of his liability insurance company's policy. The insurance company is in bankruptcy/receivership and the claim to pay the $250,000.00 limit was to be presented to the Receiver/Trustee for payment. The Petitioners stated in their Motion for Order Approving Settlement and Distribution that it was expected that a future payment will be made.

       (c.) The Petitioners settled with Lake Wales for $1,505,563.00, with $750,000.00 as an up-front cash lump sum payment, and the balance of $755,563.00 being used to purchase an unconditionally guaranteed 20 year tax- free annuity paying $4,000.00 per month guaranteed.

       (d.) The Petitioners presented this settlement for approval to the Circuit Court and to allow distribution, and by Order entered January 14, 1997, the Circuit Court approved the settlement and ordered distribution of the settlement proceeds.

       (e.) An Order of Dismissal with prejudice was entered as to the claims made against Lake Wales Hospital, and the Order Approving Settlement and Distribution provided that the Petitioners were to execute a full release of Lake Wales and of Dr. Mancini. The personal liability of Dr. Campbell was discharged pursuant to the Discharge of Debtor entered by the Bankruptcy Court on October 10, 1996.

       (f.) The Petitioners are now seeking recovery of benefits under the NICA Plan in this action based upon the Respondent's previous acceptance of the claim for compensation. During a telephone conference on September 2, 1997, the Petitioners first disclosed that they had pursued a civil action to conclusion and the respondent was thereafter granted the opportunity to review its assessment as to the compensability of the claim.

       (g.) During a subsequent hearing on September 5, 1997 (sic) [September 17, 1997], the Respondent agreed that the infant had

       suffered a "birth-related neurological injury" and that the physicians were "participating physicians" but that by virtue of the disposition of the civil action, any claim of the Petitioners was waived, extinguished or otherwise barred. This issue shall be resolved by the Hearing Officer [Administrative Law Judge].

   19. Petitioners' attorney, Karl F. Pansler, and NICA counsel, David W. Black, mutually agree and stipulate that the attached documents represent an "Agreed Record" of this action.

       CONCLUSIONS OF LAW

       
       

2. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes.

3. The Florida Birth-Related Neurological Injury Compensation Plan (the "Plan") was enacted by the Legislature to address "a perceived medical malpractice . . . crisis affecting obstetricians and to assure the continued availability of essential obstetrical services." Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 855 (Fla. 2d DCA 1995), and Section 766.301(1), Florida Statutes. As enacted, the Plan "establishes an administrative system that provides compensation on a no-fault basis for an infant who suffers a narrowly defined birth-related neurological injury." Humana of Florida, Inc. v. McKaughan, supra, at page 855, and Section 766.301(2), Florida Statutes.

4. The Plan is a substitute, a "limited no-fault alternative," for common law rights and liabilities. Section 766.316, Florida Statutes. See also Section 766.303(2), Florida

   Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974

   (Fla. 1996). Regarding the exclusiveness of the remedy afforded by the Plan, subsection 766.303(2) provides:

   (2) 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 postdelivery 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.

5. With but two exceptions, the statute forecloses any civil action against a NICA participant when the injury is of the type defined in Section 766.302(2), Florida Statutes. Barden v. Haddox, 695 So. 2d 1271 (Fla. 5th DCA 1997). The first exception is prescribed by subsection 766.303(2) which permits a civil action "where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property"; however, such suit must be "filed prior to and in lieu of payment of an award under ss. 766.301-

   766.316." The second exception is based on an interpretation of section 766.316, which 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 thereof 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.

6. In Galen of Florida, Inc. v. Braniff, 696 So. 2d 308,

   
   

   309 (Fla. 1997), the Supreme Court observed that:

   
   

   . . . 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. . . .

   
   

   Consequently, 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.

   
   

   Stated differently, where notice is not given, the patient may elect to pursue a civil remedy, as opposed to the benefits afforded by the Plan.5

7. While, apart from the foregoing exceptions, the Plan is designed to foreclose any civil action against a NICA participant when the injury is of the type defined in Section 766.302(2), Florida Statutes, the Plan "is not without defects" and, as the history of this and other cases has shown, its implementation has, on occasion, proved cumbersome. Central Florida Regional Hospital, Inc. v. Wagner, 656 So. 2d 491, 493 (Fla. 5th DCA 1995).

8. Here, the parents elected to file a medical malpractice action against the participating obstetricians and the hospital, for a "birth-related neurological injury" and contended they were not compelled to accept the Plan benefits, but could pursue their common-law remedies because they had not been accorded notice as required by Section 766.316, Florida Statutes.6 While the medical providers disagreed that notice had not been given, they

   were compelled under existing law to litigate the issue of coverage in the civil action. Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, supra. Accord, Central Florida Regional Hospital, Inc. v. Wagner, supra, and White v. Florida Birth-Related Neurological Injury Compensation Association, 655 So. 2d 1292 (Fla. 5th DCA 1995).

9. As heretofore noted, a settlement was reached in the civil action whereby Petitioners settled their claim against Dr. Mancini for $250,000.00 and against Lake Wales Hospital for

   $1,505,563.00. The personal liability of Dr. Campbell was discharged in bankruptcy; however, Petitioners elected to file a claim in the bankruptcy proceeding based on the claim of negligence raised in the civil case. That claim, in the sum of

   $2,700.00 was accepted, with a proposed payment of 98.14 percent or $2,649.73. By check dated October 16, 1997, the trustee in bankruptcy tendered payment of $2,649.73 on Petitioners' claim, but "said amounts have not been accepted by the Petitioners and the check has not been negotiated pending outcome of this proceeding." (Agreed Record of Counsel, paragraph 16(e).)

10. Given the resolution of the civil action, as well as the bankruptcy claim, NICA contends that any opportunity Petitioners had to pursue a claim under the Plan was waived or otherwise foreclosed, and that the subject claim should be dismissed. NICA's contention has merit.

11. Notably, the Plan provides an alternative remedy for common law rights, not an additional remedy or a collateral source of benefits. Sections 766.303(2) and 766.316, Florida Statutes. Consequently, when the choice of either a claim for Plan benefits or a civil damage remedy proves successful, the alternative right or remedy is barred. See Humana of Florida, Inc. v. McKaughan, supra, at page 862, footnote 5. See also Lowry v. Logan, 650 So. 2d 653 (Fla. 1st DCA 1995), review denied Logan v. Lowry, 659 So. 2d 1087 (Fla. 1995), and Michael v. Centex-Rooney Construction Co., Inc., 645 So. 2d 133 (Fla. 4th DCA 1994). See generally 25 Am. Jur. 2d, Election of Remedies, Section 17. Such result is compelled by the doctrine of election of remedies, and it matters not that the civil action was successfully completed on the merits or by settlement. Either closure is "efficacious"7 and bars the alternative. As for the claim against Dr. Campbell, the same result prevails.

Petitioners elected to file a claim in bankruptcy, which was accepted and payment tendered. Consequently, that remedy was "efficacious" and bars the alternative. Petitioners' decision not to negotiate the check tendered in payment pending resolution of this case does not affect that conclusion. See Lowry v.

Logan, supra, and Michael v. Centex-Rooney Construction Co., Inc., supra. Accord, Farmers State Bank of Wyatt v. Clark Equipment Co., 582 NE2d 452 (Ind. 1991). Finally, it is of no consequence that the alternative (NICA) remedy may have provided

a greater recovery. See Michael v. Centex-Rooney Construction Co., Inc., supra. Accord, Farmers State Bank of Wyatt v. Clark Equipment Co., supra. To permit the NICA claim to continue, under the circumstances of this case, would thwart the purpose of the plan to provide "a limited no-fault alternative for birth- related neurological injuries." Consequently, the subject petition (claim) should be dismissed.

CONCLUSION

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

ORDERED that the petition (claim) for benefits filed by Carl Brent Davis and Loren Meadows Davis (now known as Loren M. Blackwelder), individually and as parents and natural guardians of Carl Brent Davis, II, a deceased minor, is dismissed.

DONE AND ORDERED this 9th day of December, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1997.

ENDNOTES

1/ The supporting documents for the agreed record were filed November 12, 1997, under cover letter of Respondent's counsel, dated November 10, 1997. The original stipulation of the parties, dated November 6, 1997, and entitled "Agreed Record of Counsel," was filed November 17, 1997.

2/ NICA's acceptance of a claim for compensation is subject to approval by the administrative law judge assigned to the claim. Section 766.305(6), Florida Statutes.

3/ The parties were also accorded the opportunity to request oral argument, but neither party exercised that opportunity.

4/ Effective October 1, 1996, Chapter 96-159, Laws of Florida, amended many of the provisions of Chapter 120, Florida Statutes. Among the amendments was a change in the title of the presiding officers employed by the Division of Administrative Hearings from "hearing officer" to "administrative law judge."

5/ Some concern was expressed by Judge Klein in his dissent to the majority opinion in Bradford v. Florida Birth-Related Neurological Injury Compensation Association, 667 So. 2d 401 (Fla. 4th DCA 1995), regarding, inter alia, the following:

The interpretation of the majority makes me wonder what happens if it is in the best interest of the patient to proceed through NICA, because there is no negligence, but the physician is a participant in NICA who gave no notice? Does the patient have the option to waive the lack of notice and obtain benefits under NICA? Or could the physician take the position that NICA was inapplicable because he or she gave (sic) notice, and leave the patient, who cannot prove negligence, with no remedy.

Id. At page 403.

In the years that Plan benefits have been within the jurisdiction of the Division of Administrative Hearings (DOAH), neither the participant nor NICA have ever raised lack of notice to deny a patient compensation. Indeed, the only circumstances under which lack of notice has every been raised before DOAH was by the claimant, who had been directed by the court in a pending civil action to file a claim for NICA benefits and who sought to avoid the Plan through such failure. Consistently, the administrative law judge has ruled that, while lack of notice may be a legitimate consideration in the civil action, an issue that need not be addressed at DOAH, it was not relevant to the resolution

of a claim for compensation filed under the Plan, since it was not an issue the administrative law judge was required to resolve under Section 766.31, et seq., Florida Statutes. See e.g., Bradford v. Florida Birth-Related Neurological Injury Compensation Association, supra. Stated differently, assuming lack of notice, the claimant may elect to waive such failure and pursue relief under the Plan or abide such failure and seek relief at common law.

6/ It has been observed that while a potential claimant is free to pursue a medical malpractice action, as opposed to seeking benefits under the Plan, such election is not without risk. For example, where such an action is filed and the Plan's exclusive remedy is raised as a defense, the plaintiff runs the risk of being barred from recovery under the Plan should that defense prevail and the limitation period for filing a claim have expired. Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, supra. Moreover, the doctrine of election of rights or remedies may be implicated even if the statute of limitations has not expired. Humana of Florida, Inc. v. McKaughan, supra, at page 862, footnote 5. Nevertheless, that

election is the exclusive province of the infant's legal representative. Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, supra.

7/ "An election of remedies presupposes a right to elect. It is a choice shown by an overt act between two inconsistent rights. .

. . It is generally conceded that to be conclusive it must be efficacious to some extent." Williams v. Robineau, 168 So. 644, 646 (Fla. 1936). "Efficacious": "Capable of producing the desired effect." The American Heritage Dictionary of the English Language, New College Edition (1979).

COPIES FURNISHED:

(By certified mail)

Karl F. Pansler, Esquire Post Office Box 246 Bartow, Florida 33830

David Black, Esquire

Frank, Effman, Weinberg & Black, P.A. 8000 Peters Road

Plantation, Florida 33324

W. Douglas Moody, Jr., Esquire Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Joseph Anthony Mancini, Jr., M.D.

451 South 11th Street

Lake Wales, Florida 33853

S. Ronald Campbell, M.D.

4811 South Landings Drive, No. 104 Fort Myers, Florida 33919

Lake Wales Hospital Legal Department Post Office Box 3460

Lake Wales, Florida 33859

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Dan Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300

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 appropriate District Court of Appeal. See Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-003315N

Orders for Case No: 93-003315N