STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUANN BLYTHE, as parent and natural ) guardian of KRYSTAL BLYTHE, a minor, )

)

Petitioner, )

)

vs. ) Case No. 98-4138N

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

)

Respondent. )

)

FINAL ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion to Dismiss.

STATEMENT OF THE CASE

1. By petition (claim) filed September 17, 1998, Petitioner, LouAnn Blythe, as parent and natural guardian of Krystal Blythe (Krystal), a minor, sought benefits pursuant to Section 766.301, et seq., Florida Statutes, the "Florida Birth- Related Neurological Injury Compensation Plan." Pertinent to the pending motion, the petition affirmatively averred that Krystal was born on May 20, 1991, at West Volusia Memorial Hospital, Deland, Florida, and the documents attached to the petition (including an Authorization for Release of Medical Records, Certificate of Live Birth, and the medical records related to Krystal's birth) affirmatively reflect Krystal's date of birth as May 20, 1991.

2. In response to the petition, Respondent, Florida Birth- Related Neurological Injury Compensation Association (NICA), filed a motion to dismiss. As the basis for its motion to dismiss, NICA observed that:

   . . . the instant claim . . . fails to meet the criteria set forth at Section 766.313, Florida Statutes (1991) based on the undisputed facts as demonstrated hereunder:

   
   

   1. That the medical records of record in this cause which were submitted with the petition filed by the Petitioner contain certain records of the child, Krystal Blythe, from West Volusia Memorial Hospital.

      
      

   2. That the medical records and petition unequivocally indicate that the birth date of the child, Krystal Blythe, was May 20, 1991.

      
      

   3. That the petition for benefits in this matter was filed with the Division of Administrative Hearings on September 17, 1998, which indisputably falls outside the statute of limitations for presenting a claim as described in Section 766.313, Florida Statutes (1991), which provides as follows:

      
      

      "Any claim for compensation under

      ss. 766.301-766.316 that is filed more than

      7 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred."

      
      

3. On October 9, 1998, an Order to Show Cause was rendered which provided:

   On October 8, 1998, Respondent filed a motion to dismiss the petition (claim) for benefits. The predicate for Respondent's motion was its observation that it affirmatively appears from the face of the petition that it was filed more than seven (7) years after the birth of the infant and, consequently, the claim for compensation is barred by

   Section 766.313, Florida Statutes (1991).

   Given the circumstances, it is

   
   

   ORDERED that Petitioner is accorded fourteen

   (14) days from the date of this order to show cause in writing, if any she can, as to why the Respondent's motion should not be granted.

   
   

4. On October 19, 1998, Petitioner, LouAnn Blythe, filed a response (dated October 15, 1998) to the Order to Show Cause. The response did not dispute that Krystal's date of birth was May 20, 1991, a date which preceded the filing of the claim by more than 7 years, but averred, by way of avoidance, that:

   . . . we didn't find out there was something wrong with Krystal until she was about seven months old, after taking her to a different Doctor (Dr. Robert Caithers).

   
   

   I met Joseph & Jodi Ragno [a physician and registered nurse, respectively] in August of 1998 and began talking to them and learned about the Fla. Birth-Related Neurological Injury Compensation Ass.

   
   

   I had never heard of the association until then, if I had I would have filed sooner.

   
   

   Attached to the response was a statement, subscribed before a Notary Public, from Joseph Ragno, M.D., and Jodi Ragno, R.N., which provided in pertinent part, as follows:

   While talking with Luann [sic] . . .

   Blythe we were surprised . . . to find

   Luann [sic] was unaware of the Florida Birth- Related Neurological Injury Compensation [Plan]. . . .

   Joseph F. Ragno, M.D., obtained, and Jodi J. Ragno, R.N. delivered a N.I.C.A. pamphlet to Luann [sic] Blythe on Wednesday, August 26th, 1998.

   
   

   CONCLUSIONS OF LAW

5. 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.

6. The Florida Birth-Related Neurological Injury Compensation Plan (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), Florida Statutes.

7. As enacted, 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 of Administrative Hearings within seven years of the infant's birth; however, effective May 15, 1993, the limitation period was reduced to five years. Sections 766.302(3), 766.303(2), 766.305(1) and 766.313, Florida Statutes (1989), and Chapter 93-251, Section 1, Laws of Florida. Here, we need not resolve which period of limitation applies since the subject claim is untimely under either provision.

8. Pertinent to this case, Section 766.313, Florida Statutes (1989), provided, as follows:

   Limitation on claim.-Any claim for compensation under ss. 766.301-766.316 that is filed more than 7 hears after the birth of an infant alleged to have a birth-related neurological injury shall be barred.

   
   

   As heretofore noted, effective May 15, 1993, Section 766.313, was

   amended to reduce the limitation period to 5 years; however, the provisions of subsection 766.313 were not otherwise changed.

   Chapter 93-251, Section 1, Laws of Florida.

   
   

9. Here, it affirmatively appears from the face of the petition that it was "filed more than 7 years after the birth of

   . . . [the] infant alleged to have a birth-related neurological injury." Section 766.313, Florida Statutes (1989).

   Notwithstanding, Petitioner seeks to avoid the implications of Section 766.313 based on allegations that she was unaware of Krystal's injury until about seven months following her birth, and that she was unaware of the Plan until August 1998.

   Accepting Petitioner's plea, as true, offers no defense or avoidance to the absolute bar established by Section 766.313.

10. "In contrast to a statute of limitation, a statute of repose" [such as Section 766.313] precludes a right of action after a specified time which is measured from the incident of malpractice, sale of a product, or . . . [,as in the case at bar, the birth date of the infant], rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued [i.e., when the incident was discovered, or should have been discovered with the exercise of due diligence]." University of Miami v. Bogorff, 583 So. 2d 1000, 1003 (Fla. 1991). Accord, WRH Mortgage, Inc. v. Butler, 684 So. 2d 325 (Fla. 5th DCA 1996) (Statute of repose is a substantive statute. The period of time established by a

    statute of repose commences on the date of the event specified in the statute. At the end of that time period, the cause of action ceases to exist). See also Dove v. McCormick, 698 So. 2d 585 (Fla. 1st DCA 1997) (When right and remedy are created by the same statute, limitations of the remedy are treated as limitations of the right). Consequently, a statute of repose absolutely bars any action after the time period has elapsed even if there has been fraud, concealment, or intentional misrepresentation. University of Miami v. Bogorff, supra, and Berisford v. Jack Eckerd Corp., 667 So. 2d 809 (Fla. 4th DCA 1995). Accordingly, Petitioner's plea in avoidance is of no relevance, and the subject claim is barred.

11. Where, as here, the administrative law judge determines that a claim does not qualify for compensation under the Plan 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. See e.g., Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing, it is

ORDERED that the petition for compensation filed by LouAnn Blythe, as parent and natural guardian of Krystal Blythe, a minor, be and the same is hereby dismissed with prejudice.

DONE AND ORDERED this 29th day of October, 1998, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1998.

COPIES FURNISHED:

(By Certified Mail)

LouAnn Blythe

Post Office Box 922 Osteen, Florida 32764

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

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

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Daniel Sumner, General Counsel Department of Insurance

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

Dr. Stanley Gelman

850 West Plymouth Avenue Deland, Florida 32720-3284

West Volusia Hospital Legal Department

701 West Plymouth Avenue Deland, Florida 32720

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: 98-004138N

Orders for Case No: 98-004138N