STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVA PENDERGRAFT, as parent ) and natural guardian of PATRICK ) PENDERGRAFT, a minor, )

)

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

MIGUEL VENEREO, M.D., )

)

Intervenor. )

Case No. 04-1006N

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a final hearing in the above-styled case on December 21, 2004, by teleconference.

APPEARANCES

For Petitioner: William C. Ruggiero, Esquire

Law Office of William C. Ruggiero

200 East Broward Boulevard, Suite 1100 Fort Lauderdale, Florida 33301

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L. 7805 Southwest 6th Court Plantation, Florida 33324

For Intervenor: Robert Murray, Jr., Esquire

George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens

2866 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

STATEMENT OF THE ISSUES

1. Whether Patrick Pendergraft (Patrick), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

2. If so, whether Petitioner's recovery, through settlement of a civil suit for negligence against Memorial Hospital West, the hospital at which Patrick was born, bars Petitioner from receiving an award of Plan benefits.

PRELIMINARY STATEMENT

On March 19, 2004, Melva Pendergraft, on behalf of and as parent and natural guardian of Patrick Pendergraft, a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on March 22, 2004, and on June 2, 2004, following an extension of time within which to do so, NICA filed its response to the petition, whereby it denied the claim was compensable and requested a hearing be scheduled to resolve the issue of compensability. Thereafter, Miguel Venereo, M.D., requested and was accorded leave to intervene.

A hearing was initially scheduled for October 18 and 19, 2004, to resolve whether the claim was compensable.1 However, on July 12, 2004, NICA filed an Amended Notice of Compensability, wherein it acknowledged the claim was compensable, and on September 10, 2004, a Supplement to Amended Notice of Compensability, wherein it averred that, having received a settlement in a civil suit against the hospital for injuries associated with Patrick's birth, Petitioner had "recovered," as that word is commonly understood, and was not entitled to Plan benefits. § 766.304, Fla. Stat. (1999)("An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered.")2 Consequently, an Amended Notice of Hearing was issued that included, among the issues to be resolved, the implications of Petitioner's settlement with the hospital on her entitlement to an award of Plan benefits.

Thereafter, at the parties' request, the hearing was rescheduled for December 9 and 10, 2004, by video teleconference, and, again at the parties' request, rescheduled for December 21, 2004, by teleconference.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1-4 of the Findings of Fact, and Respondent's Exhibits 1-15 were received into evidence. No witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed January 3, 2005, and the parties were accorded 10 days from that date to file proposed orders. Respondent and Intervenor elected to file such a proposal, and they have been duly considered.

FINDINGS OF FACT

Stipulated facts

1. Petitioner, Melva Pendergraft, is the natural mother and guardian of Patrick Pendergraft, a minor. Patrick was born a live infant on May 8, 2000, at South Broward Hospital District, d/b/a Memorial Hospital West, a licensed hospital located in Pembroke Pines, Florida, and his weight exceeded 2,500 grams.

2. The physician providing obstetrical services during Patrick's birth was Miguel Venereo, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

3. Patrick suffered an injury to the brain caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired.

4. The hospital (Memorial Hospital West) and participating physician (Dr. Venereo) complied with the notice provisions of the Plan.

   Coverage under the Plan

   
   

5. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also

   §§ 766.309 and 766.31, Fla. Stat.

   
   

6. Here, the parties have stipulated, and the proof is otherwise compelling, that Patrick suffered such an injury. Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat.

   The settlement with Memorial Hospital West

   
   

7. On June 14, 2002, Melva Pendergraft, individually and as natural parent and guardian of Patrick Pendergraft, a minor, filed a complaint for damages on her own behalf, as well as her minor son, against Robert Fields, M.D. (for acts or omissions during Ms. Pendergraft's prenatal care on January 10, 2000, and May 5, 2000); Miguel Venereo, M.D. (for acts or omissions during Ms. Pendergraft's prenatal care on January 10, 2000, and May 5, 2000, as well as during the course of Ms. Pendergraft's labor and

   Patrick's delivery on May 8, 2000); and South Broward Hospital District, d/b/a Memorial Hospital West (for the acts or omissions of Doctors Fields and Venereo, as well as others, on January 10, 2000, May 5, 2000, and May 8, 2000), in the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, Case No. 02-11798 CA 13.

8. Pertinent to this case, the complaint for damages alleged the following facts giving rise to the suit:

   1. On or about January 10, 2000, MELVA PENDERGRAFT presented to MEMORIAL HOSPITAL WEST in Broward County, Florida, with complaints of cramping and spotting. She was then thirty seven (37) years old, gravida I and pregnant with an estimated confinement date of April 27, 2000. ROBERT FIELDS, M.D. and/or MIGUEL VENEREO, M.D., was/were the obstetrician(s)/gynecologist(s) assigned by MEMORIAL HOSPITAL WEST as responsible for her care and treatment on that date. However, MELVA PENDERGRAFT was evaluated face-to-face only by nursing employee(s) of MEMORIAL HOSPITAL WEST, monitored for contractions and sent home to "Go to Regional if any further problems."

      
      

   2. On or about May 5, 2000, MELVA PENDERGRAFT again presented to MEMORIAL HOSPITAL WEST with complaints of decreased fetal movement and pelvic pain and was noted to be pregnant with an estimated confinement date of April 27, 2000. ROBERT FIELDS, M.D. and/or MIGUEL VENEREO, M.D. was/were again assigned by MEMORIAL HOSPITAL WEST as the obstetrician(s)/gynecologist(s) responsible for her care and treatment on that date. However, again, MELVA PENDERGRAFT was evaluated face-to-face only by a nursing employee of MEMORIAL HOSPITAL WEST, who documented only "pain on urination and muscle

      pain" as her chief medical complaints. She was placed on a fetal monitor and then sent home without further evaluation with instructions, "Per DR. FIELDS, to follow-up with DR. VENEREO on Monday, if she does not go into labor this weekend."

      
      

   3. On or about May 8, 2000, MELVA PENDERGRAFT returned to MEMORIAL HOSPITAL WEST in labor and a cesarean section was performed by MIGUEL VENEREO, M.D. for fetal distress.

      
      

   4. On or about May 8, 2000, PATRICK PENDERGRAFT was delivered by cesarean section in a severely and permanently brain-damaged condition.

      
      

9. Count I of the complaint asserted a claim against

   
   

   Dr. Fields, related to his care of Ms. Pendergraft on January 10, 2000, and May 5, 2000, for injuries suffered by Ms. Pendergraft and Patrick. (Respondent's Exhibit 3, paragraphs 14-16, 35, and

   36) That claim included the following allegations:

   
   

   Plaintiff adopts and realleges Paragraphs 1 through 13, above, and further alleges:

   
   

   1. As the treating obstetrician/gynecologist responsible for the care and treatment of MELVA PENDERGRAFT on or about January 10, 2000 and May 5, 2000, Defendant, ROBERT FIELDS, M.D., owed a duty to Plaintiff, MELVA PENDERGRAFT, to render medical care and services commensurate with the prevailing professional standard of care for similar health care providers in this and like communities.

      
      

   2. Notwithstanding this duty, Defendant ROBERT FIELDS, M.D. did or failed to do one or more of the following acts of omission or commission:

      1. Negligently failed to take an adequate and accurate history from MELVA PENDERGRAFT;

         
         

      2. Negligently failed to perform a physical examination of MELVA PENDERGRAFT and to assess her condition and the condition of her unborn child, PATRICK PENDERGRAFT;

         
         

      3. Negligently failed to order necessary and appropriate diagnostic studies for MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

         
         

      4. Negligently failed [to] obtain appropriate consults from other medical specialists to evaluate the condition of MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

         
         

      5. Negligently failed to timely institute the appropriate medical care and treatment which was indicated in light of the medical conditions of MELVA PENDERCRAFT and

         PATRICK PENDERCRAFT;

         
         

      6. Negligently and recklessly relied upon the evaluation of nursing personnel to determine that MELVA PENDERGRAFT should be discharged without further medical evaluation or treatment;

         
         

      7. Negligently provided and/or approved inadequate, inappropriate and/or misleading discharge instructions to MELVA PENDERGRAFT; and

         
         

      8. Other negligent acts of omission or commission which may become known through discovery.

      
      

   3. As a direct and proximate result of the negligence of Defendant, ROBERT FIELDS, M.D., the Plaintiffs have sustained the damages more particularly described below.[3]

10. Count II of the complaint asserted a claim against Dr. Venereo, related to his care of Ms. Pendergraft on

    January 10, 2000, May 5, 2000, and May 8, 2000, for injuries suffered by Ms. Pendergraft and Patrick. (Respondent's

    Exhibit 3, paragraphs 17-19, 35, and 36) That claim included the following allegations:

    Plaintiff adopts and realleges paragraphs 1 through 13, above, and further alleges:

    
    

    1. As the treating obstetrician/gynecologist responsible for the care and treatment of MELVA PENDERGRAFT on or about January 10, 2000, May 5, 2000, May 8, 2000 and thereafter, Defendant, MIGUEL VENEREO, M.D., owed a duty to Plaintiff, MELVA PENDERGRAFT, to render medical care and services commensurate with the prevailing professional standard of care for similar health care providers in this and like communities.

       
       

    2. Notwithstanding this duty, Defendant, MIGUEL VENEREO, M.D., did or failed to do one or more of the following acts of omission and/or commission:

       
       

       1. Negligently failed to take an adequate and accurate history from MELVA PENDERGRAFT;

          
          

       2. Negligently failed to perform a physical examination of MELVA PENDERGRAFT and to assess her condition and the condition of her unborn child, PATRICK PENDERGRAFT;

          
          

       3. Negligently failed to order necessary and appropriate diagnostic studies for MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

          
          

       4. Negligently failed [to] obtain appropriate consults from other medical specialists to evaluate the condition of MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

          
          

       5. Negligently failed to timely institute the appropriate medical care and treatment which was indicated in light of the medical

          conditions of MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

          
          

       6. Negligently and recklessly relied upon the evaluation of nursing personnel to determine that MELVA PENDERGRAFT should be discharged without further medical evaluation or treatment on January 10, 2000 and/or on May 5, 2000;

          
          

       7. Negligently provided and/or approved inadequate, inappropriate and/or misleading discharge instructions to MELVA PENDERGRAFT on January 10, 2000 and/or on May 5, 2000;

          
          

       8. Negligently caused a delay or allowed a delay in performing a STAT cesarean section on May 8, 2000;

          
          

       9. Negligently managed MELVA PENDERGRAFT's labor and delivery; and

       
       

       (K) Other negligent acts of omission or commission which may become known through discovery.

       
       

    3. As a direct and proximate result of the negligence of Defendant, MIGUEL VENEREO, M.D., the Plaintiffs have sustained the damages more particularly described below.[4]

11. Counts III, IV, V, and VI of the complaint asserted a claim against Memorial Hospital West, related to the care provided Ms. Pendergraft on January 10, 2000, May 5, 2000, and May 8, 2000, for injuries suffered by Ms. Pendergraft and Patrick. (Respondent's Exhibit 3, paragraphs 20-36) Count III included a claim of vicarious liability for the acts or omissions of Doctors Fields and Venereo, among others, and included the following allegations:

    Plaintiff adopts and realleges paragraphs 1 through 13, above, and further alleges:

    
    

    1. At all times material, Defendant, MEMORIAL WEST, undertook a duty to provide obstetric and gynecologic medical care and services to Plaintiff in a manner commensurate with the prevailing standard of care for similar health care provider hospitals in this and like communities.

       
       

    2. This duty included the provision of qualified physicians, nursing personnel and other personnel, as well as medical services to appropriately care for and treat its obstetric patients and their unborn children, including Plaintiffs, MELVA PENDERGRAFT and PATRICK PENDERGRAFT.

       
       

    3. This duty further included the maintenance and enforcement of hospital policies and procedures which would assure appropriate evaluation, monitoring and management of its obstetric patients and their unborn children, including Plaintiffs, MELVA PENDERGRAFT and PATRICK PENDERGRAFT.

       
       

    4. Notwithstanding these duties, Defendant, MEMORIAL HOSPITAL WEST, by and through its actual and/or apparent agents, servants and/or employees, did or failed to do one or more of the following acts of omission or commission:

       
       

       1. Negligently failed to take adequate and accurate histories from MELVA PENDERGRAFT on January 10, 2000, on May 5, 2000 and May 8, 2000;

          
          

       2. Negligently failed to perform and/or timely perform a physical examination of MELVA PENDERGRAFT by a qualified physician to assess her condition and the condition of her unborn child, PATRICK PENDERGRAFT on

          January 10, 2000, on May 5, 2000 and on

          May 8, 2000;

       3. Negligently failed to order and/or timely order necessary and appropriate diagnostic studies for MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

          
          

       4. Negligently failed obtain appropriate consults from other medical specialists to evaluate the conditions of MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

          
          

       5. Negligently failed to timely institute the appropriate medical care and treatment which was indicated in light of the medical conditions of MELVA PENDERGRAFT and

          PATRICK PENDERGRAFT;

          
          

       6. Negligently and recklessly relied upon and/or permitted the evaluation of nursing personnel alone to determine that

          MELVA PENDERGRAFT should be discharged without further medical evaluation or treatment;

          
          

       7. Negligently provided and/or approved inadequate, inappropriate and/or misleading discharge instructions to MELVA PENDERGRAFT;

          
          

       8. Negligently delayed or caused a delay in the performance of the STAT C-section on

          May 8, 2000;

          
          

       9. Negligently and carelessly failed to have in place policies and procedure[s] or follow such policies and procedures in order that appropriate diagnostic tests, studies and treatment would be recommended, performed and ordered to evaluate and diagnose the conditions of MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

          
          

       10. Negligently failed to have in place policies and procedures, or to follow policies and procedures, with respect to diagnosis, monitoring and treatment of fetal distress;

       11. Negligently managed MELVA PENDERGRAFT's labor and delivery; and

           
           

       12. Other negligent acts of omission or commission which may become know through discovery.

       
       

    5. As a direct and proximate result of the negligence of MEMORIAL WEST, Plaintiffs have sustained the damages more particularly described below.[5]

    
    

12. A settlement was reached in the civil suit with Memorial Hospital West for $100,000.00, the sovereign immunity limit, and with Dr. Fields for $250,000.00, the limit of his insurance coverage. (Respondent's Exhibit 4) That settlement was approved by court Order of May 17, 2004, and Amended Order of May 24, 2004. (Respondent's Exhibit 8) Thereafter, given the consummation of the settlement agreement, and with the parties' agreement, the court dismissed the case against Memorial Hospital West, by Order of July 6, 2004, and against Dr. Fields, by Order of July 8, 2004. (Respondent's Exhibits 9-12) Apparently, the case against Dr. Venereo remains pending. Of note,

    Ms. Pendergraft executed a full and final Release of All Claims as to Memorial Hospital West. (Respondent's Exhibits 13).

    CONCLUSIONS OF LAW

    
    

    Jurisdiction

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.

    Compensability

    
    

14. In resolving whether a claim is covered by the Plan, the administrative law judge must make the following determination based upon the available evidence:

    1. Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, 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. 766.303(2).

       
       

    2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery 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 postdelivery period in a hospital.

    
    

    § 766.309(1), Fla. Stat. An award may be sustained only if the administrative law judge concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth."

    § 766.31(1), Fla. Stat.

    
    

15. "Birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:

    . . . 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 postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

    
    

16. Here, it has been established that Dr. Venereo, the physician who provided obstetrical services at Patrick's birth, was a "participating physician," and that Patrick suffered a "birth-related neurological injury." Consequently, the claim is covered by the Plan, and the administrative law judge is required to make an award of compensation unless, as alleged by NICA, Petitioner is barred from pursuing an award because she recovered damages, through settlement of a civil action against Memorial Hospital West for medical malpractice associated with Patrick's birth. §§ 766.304, 766.309, and 766.31, Fla. Stat.

    The statutory bar to recovery (§ 766.304, Fla. Stat.)

    
    

17. The Florida Birth-Related Neurological Injury Compensation 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); § 766.301(1), Fla. Stat. 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, 652 So. 2d

    at 855; § 766.301(2), Fla. Stat.

    
    

18. The Plan is a substitute, a "limited no-fault alternative," for common law rights and liabilities. § 766.316, Fla. Stat. See also § 766.303(2), Fla. Stat.; 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 representatives, 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.

19. Effective July 1, 1998, the Legislature adopted Chapter 98-113, Laws of Florida, which amended Sections 766.301 and 766.304, Florida Statutes.6 Pertinent to this case, the amendments (underlined) to Sections 766.301 and 766.304, Florida Statutes, were, as follows:

    766.301 Legislative findings and intent.--

    
    

    (1) The Legislature makes the following findings:

    
    

    * * *

    
    

    (d) The costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault. The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.

    
    

    * * *

    
    

    766.304 Administrative law judge to determine claims.--The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections. The administrative law judge has

    exclusive jurisdiction to determine whether a claim filed under this act is compensable.

    No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the

    exclusiveness of remedy provisions of s.

    766.303 An action may not be brought

    under ss. 766.301-766.316 if the claimant recovers or final judgment is

    entered [7]

    
    

    Ch. 98-113, § 1, at 524, Laws of Fla.

    
    

20. By the amendments to Sections 766.301 and 766.304, Florida Statutes, the Legislature reacted "adversely to the result reached in McKaughan," wherein the Supreme Court concluded that an administrative law judge did not have exclusive jurisdiction to determine whether a new-born infant suffered a "birth-related neurological injury," and mandated that coverage be resolved exclusively in the administrative forum. O'Leary v.

    Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000). Additionally, by amending Section 766.304, Florida Statutes, to provide that "[a]n action may not be brought under ss. 766.301-

    766.316 if the claimant recovers or final judgment is entered," the Legislature evidenced its intent to adopt an election of remedies clause to avoid future claims such as those pursued in Gilbert v. Florida Birth-Related Neurological Injury Compensation

    Association, 724 So. 2d 688 (Fla. 2d DCA 1999), wherein the court resolved that a claimant could receive the proceeds of a settlement with the defendants in a civil suit and still pursue a claim for benefits under the Plan. Romine v. Florida Birth-

    Related Neurological Injury Compensation Association, 842 So. 2d

    148, 152 (Fla. 5th DCA 2003). In all, by the amendments to the Plan, the Legislature evidenced its intention that "[t]he administrative law judge has exclusive jurisdiction to determine whether a claim . . . is compensable," that "[n]o civil action may be brought . . . [or continued, if Plan exclusivity is raised as a defense] until the determinations under s. 766.309 have been resolved by the administrative law judge," and that if a claimant persists and "recovers or final judgment is entered," she or he may not pursue an award under the Plan. Gugelmin v. Florida Birth-Related Neurological Injury Compensation Association, 882 So. 2d 517, 520 (Fla. 4th DCA 2004)("Following the 1998 amendments to NICA, it is clear that a plaintiff's acceptance of a civil settlement bars a claim for NICA benefits.")

21. Here, given the pleadings in the civil suit, and there being no proof to the contrary, Petitioner received a settlement with Memorial Hospital West, at least in part, for injuries associated with Patrick's birth. Therefore, Petitioner has "recovered," as that word is commonly understood. See Holly v.

Auld, 450 So. 2d 217, 219 (Fla. 1984)("When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning."); Abramson v. Florida Psychological Association, 634 So. 2d 610, 612 (Fla.

1994)("Administrative agencies have the authority to interpret the laws which they administer, but such interpretation cannot be contrary to clear legislative intent.") Consequently, while Patrick suffered an injury covered by the Plan, Petitioner is not entitled to an award of Plan benefits.8

CONCLUSION

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

ORDERED that the claim for compensation filed by Melva Pendergraft, on behalf of and as parent and natural

guardian of Patrick Pendergraft, a minor, qualifies for coverage under the Plan; however, given Petitioner's recovery from Memorial Hospital West, she may not pursue or recover an award of Plan benefits.

DONE AND ORDERED this 21st day of January, 2005, in Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2005.

ENDNOTES

1/ Initially, notice was also at issue, and was likewise noticed for hearing; however, as appears more fully in the Findings of Fact, the parties subsequently agreed that the hospital and the participating physician complied with the notice provisions of the Plan. § 766.316, Fla. Stat.

2/ In 2003, the Legislature amended Section 766.304, Florida Statutes, to read, as follows:

. . . An award action may not be made or paid brought under ss. 766.301-766.316 if the claimant recovers under a settlement or a final judgment is entered in a civil action

. . . .

Ch. 2003-416, § 75, Laws of Fla. However, the Legislature expressly provided that "the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act." Ch. 2003-416, § 86, Laws of Fla.

Here, Petitioner's notice of intent to initiate litigation was mailed well prior to the September 15, 2003, effective date of the act. (Respondent's Exhibit 3) Consequently, the provisions of Section 766.304, Florida Statutes, as they existed prior to the 2003 amendments apply in this case.

3/ The damages sustained by Patrick and Ms. Pendergraft were set forth in paragraphs 35 and 36 of the Complaint for Damages (Respondent's Exhibit 3), as follows:

CLAIM FOR DAMAGES COMMON TO ALL COUNTS CLAIM FOR PATRICK PENDERGRAFT

1. As a direct and proximate result of the negligence of the Defendants and the violations of 42 U.S.C.A. 1395(dd) and Fla. Stat. Sec. 395.1041, as set forth in the

   preceeding Counts, PATRICK PENDERGRAFT has in the past and will in the future suffer the following damages:

   
   

   1. bodily injury, including permanent brain damage;

      
      

   2. pain and suffering;

      
      

   3. disability;

      
      

   4. disfigurement;

      
      

   5. mental anguish;

      
      

   6. loss of the capacity for the enjoyment of life;

      
      

   7. medical and other health care related expenses;

      
      

   8. lost earnings and loss of wage earning capacity;

      
      

   9. rehabilitation expenses;

      
      

   10. aggravation of a preexisting condition.

   
   

   * * *

   
   

   CLAIM FOR MELVA PENDERGRAFT

   
   

2. As a direct and proximate result of the negligence of the Defendants and the violations of 42 U.S.C.A. 1395(dd) and Fla. Stat. Sec. 395.1041, as set forth in the preceeding Counts, which caused a significant, serious and permanent total disability to PATRICK PENDERGRAFT, her natural child, MELVA PENDERGRAFT has in the past and will in the future suffer the following damages:

1. permanent loss of services, comfort, society, attention and affections of PATRICK PENDERGRAFT;

   
   

   4/ Ibid.

   
   

   5/ Ibid.

2. medical, hospital, rehabilitation and related expenses in the past and in the future until PATRICK PENDERGRAFT reaches the age of majority; and thereafter on account on his permanent total disability.

6/ As for the effective date of the amendments, Chapter 98-113, Section 6, Laws of Florida, provided that "[t]he amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of date of birth." However, in Romine v. Florida Birth-Related Neurological Injury Compensation Association, 842 So. 2d 148 (Fla. 5th DCA 2003), the court resolved that retroactive application of the amendment to a child born prior to its effective date, to preclude a NICA claim when the claimant made a civil recovery (through settlement of a civil suit), was not constitutionally permissible. Here, the child was born May 8, 2000, and the claim was filed March 19, 2004. Consequently, the amendments apply to this case.

7/ Ibid., endnote 2.

8/ If Plan immunity is a defense to a civil suit when, as here, a claimant recovers from less than all health care providers, it is necessary, given DOAH's exclusive jurisdiction over the matter, for the administrative law judge to address the issue of coverage, even though an award would be inappropriate.

COPIES FURNISHED:

(By certified mail)

William C. Ruggiero, Esquire

Law Office of William C. Ruggiero

200 East Broward Boulevard, Suite 1100 Fort Lauderdale, Florida 33301

David W. Black, Esquire Frank, Weinberg & Black, P.L. 7805 Southwest 6th Court Plantation, Florida 33324

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

C. Robert Murray, Jr., Esquire George, Hartz, Lundeen, Fulmer,

Johnstone, King & Stevens

2866 East Oakland Park Boulevard Fort Lauderdale, Florida 33306

Miguel Venereo, M.D. 14700 Sunset Lane

Southwest Ranches, Florida 33330

Memorial Hospital West 703 Flamingo Road

Pembroke Pines, Florida 33028

Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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: 04-001006N

Orders for Case No: 04-001006N