STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKE KOCHER and LYNN KOCHER, as )

parents and natural guardians ) of CHRISTOPHER KOCHER, a minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

) BAYFRONT MEDICAL CENTER, INC., )

)

Intervenor. )

Case No. 00-4567N

)

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 March 27, 2001, by video teleconference, with sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Ana Rivero-Alexander, Esquire

Ferraro & Associates, P.A.

200 South Biscayne Boulevard, Suite 3800 Miami, Florida 33131

For Respondent: Kenneth J. Plante, Esquire

Brewton, Plante & Plante, P.A.

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

For Intervenor: David S. Nelson, Esquire

Smith & Fuller, P.A. Post Office Box 3288 Tampa, Florida 33601

STATEMENT OF THE ISSUES

1. At issue is whether Christopher Kocher, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.

2. If so, whether the notice requirements of the Plan were satisfied.

PRELIMINARY STATEMENT

On February 12, 1999, Petitioner, Mike Kocher, as Personal Representative of the Estate of Christopher Kocher, deceased, instituted a medical malpractice/wrongful death action against Intervenor, Bayfront Medical Center, Inc., in the Circuit Court for the Sixth Judicial Circuit, in and for Pinellas County, Florida. That case is styled Mike Kocher, as Personal Representative of the Estate of Christopher Kocher v. Bayfront Medical Center, Inc., Case No. 99-1084-CI-11 (the Civil case).

At the time they filed the civil case, Petitioners had not filed or pursued a claim for benefits under the Plan. In the wake of the amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes (1998 Supp.) and the decision in O'Leary v. Florida

Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000), Intervenor filed a "Motion to

Dismiss/Abate" asking the Circuit Court to dismiss or abate the civil case until such time as the Petitioners pursued a claim for benefits under the Plan and that claim was resolved in an administrative forum. By order of the Circuit Court dated September 13, 2000, the civil case was abated "until such time as the issues of applicability of the Florida Birth-Related Neurological Compensation (NICA) to Plaintiffs' claims and the compensability of Plaintiff's [sic] claims under NICA are fully and finally resolved by an Administrative Law Judge or in Appellate form."

On November 8, 2000, Mike Kocher and Lynn Kocher, as parents and natural guardians of Christopher Kocher (Christopher), a deceased minor, filed the subject petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). Pertinent to this case, the petition included the following allegations regarding the civil case, as well as Petitioners' claim that the notice requirements of the Plan were not satisfied:

. . . Petitioners were provided with notice of Dr. Mastry's [the delivering obstetrician's] participation in NICA prior to the birth, but were never provided with notice of the hospital's participation in NICA. Petitioners have filed a medical malpractice action against [the hospital,] Bayfront Medical Center [,] in the Circuit Court in and for Pinellas County, Florida

(Case Number 99-1084-CI-11), however, the Circuit Court has stayed the case and ordered that the administrative law judge address the issue[s] of [compensability and] of notice/waiver before Petitioners can proceed with their suit . . . .

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on November 9, 2000. NICA reviewed the claim, and on December 21, 2000, gave notice that it had "determined that such claim is a 'birth-related neurological injury' within the meaning of Section 766.302(2), Florida Statutes." NICA further averred that "[o]ur position has been communicated to counsel for Petitioners who have indicated they do not wish to receive compensation . . .

[and propose to reject coverage since] the mother was not notified of the program as specified in Section 766.316, Florida Statutes." Consequently, NICA requested "that an evidentiary hearing be set and that the . . . [administrative law judge] decide the issues of compensability and notice in this matter." Such a hearing was ultimately held on March 27, 2001. In the interim, Bayfront Medical Center, Inc., was accorded leave to intervene.

At hearing, the parties stipulated to the factual matters set forth in paragraphs 1 and 2 of the Findings of Fact.

Petitioners called no witnesses; however, Petitioners' Exhibit 1 (the medical records filed with DOAH on November 8, 2000) and

Petitioners' Exhibit 2 (the deposition of Brenda Johnson) were received into evidence. Respondent likewise called no witnesses, but its Exhibit 1 (a report of Charles Kalstone, M.D.) was received into evidence. Intervenor called Lynn Kocher as a witness, and its Exhibit 1 (the deposition of Beth Benson, M.D.) and Exhibits 2-5 were received into evidence.

The transcript of the hearing was filed April 11, 2001, and the parties were initially accorded 15 days from that date to file proposed final orders; however, at Respondent's request, the time for filing proposed final orders was extended to April 30, 2001. Consequently, the parties waived the requirement that a final order be rendered within 30 days after the transcript has been filed. Rule 28-106.216(2), Florida Administrative Code.

The parties elected to file such proposals and they have been duly considered.

FINDINGS OF FACT

Fundamental findings

1. Petitioners, Mike Kocher and Lynn Lopardo Kocher, are the parents and natural guardians of Christopher Kocher, a deceased minor. Christopher was born a live infant on June 15, 1996, at Bayfront Medical Center (the Hospital), a hospital located in Pinellas County, Florida, and his birth weight exceeded 2,500 grams.1 Christopher died on June 18, 1996.

2. The physician providing obstetrical services during the birth of Christopher was Michael Mastry, M.D., a physician associated with OB/GYN Associates, who was at all times material hereto a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(2), Florida Statutes.

3. 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 . . . caused by oxygen deprivation . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

4. Here, NICA has concluded that Christopher suffered a "birth-related neurological injury" and, since obstetrical services were provided by a "participating physician" at birth, proposes to accept the claim as compensable. Such conclusion is grossly consistent with the proof and, consequently, NICA's proposal to accept the claim is approved.

   Notice of Plan participation

   
   

5. While the claim qualifies for coverage under the Plan, Petitioners have responded to the Hospital's claim of Plan immunity by contending that the Hospital, as well as the

   participating physician, failed to comply with the notice provisions of the Plan.2 Consequently, it is necessary to resolve whether, as alleged by the Hospital, appropriate notice was given. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, supra.

6. Regarding the notice issue, the proof demonstrates that on December 5, 1995, Mrs. Kocher was seen by Dr. Beth Benson, a physician associated with OB/GYN Associates, for her first formal prenatal visit. At the time, Dr. Benson personally informed

   Mrs. Kocher that the physicians associated with OB/GYN Associates were participants in the Plan, and gave Mrs. Kocher a brochure (prepared by NICA) titled "Peace of Mind for An Unexpected Problem," which contained a concise explanation of the patient's rights and limitations under the Plan. Mrs. Kocher was also given, and acknowledged receipt of (by affixing her signature to) a form titled "Notice to Obstetric Patient" which provided:

   I have been furnished information from OB/GYN ASSOCIATES, prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that OB/GYN ASSOCIATES are participating physicians in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact the Florida Birth Related Neurological Injury Compensation Association (NICA), Barnett Bank Building, 315 South Calhoun Street, Suite 312, Tallahassee, Florida 32301, (904) 488-8191. I further

   acknowledge that I have received a copy of the brochure prepared by NICA.

   
   

   Consequently, it may be resolved that Mrs. Kocher was provided timely notice that the physicians associated with OB/GYN Associates (Doctors Beth Benson, James Bledsoe, Jeffrey Carlson, Thomas Hennessey, and Michael Mastry) were participating physicians in the Plan, together with notice as to the limited no-fault alternative for birth-related neurological injuries provided by the Plan.

7. While, the proof demonstrates that Mrs. Kocher received timely notice on behalf of the participating physicians, it also demonstrates, unequivocally, that the Hospital failed to provide any pre-delivery notice to Mrs. Kocher, as envisioned by Section 766.316, Florida Statutes. Moreover, there was no proof offered to support a conclusion that the Hospital's failure to accord Mrs. Kocher pre-delivery notice was occasioned by a medical emergency or that the giving of notice was otherwise not practicable. Rather, the Hospital contends that its failure to give notice should be "excused . . . where [, as here,] the Petitioner's obstetrician had previously provided notice of his participation in [the Plan]." (Prehearing Stipulation, paragraph g). Whether, as contended by the Hospital, its failure to accord Mrs. Kocher notice "as to the limited no-fault alternative for

   birth-related neurological injuries" should be excused, as harmless, is addressed in the Conclusions of Law which follow.

   CONCLUSIONS OF LAW

   
   

8. 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.

9. 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.

10. 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. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth- Related Neurological Injury Compensation Association (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 is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

11. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, as it has in the instant case, it may award compensation to the claimant, provided that the award is approved by the administrative law judge to whom the claim has been assigned. Section 766.305(6), Florida Statutes.

12. In discharging this responsibility, 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 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.

       
       

       Section 766.309(1), Florida Statutes. 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 birth." Section 766.31(1), Florida Statutes.

13. Pertinent to this case, "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 post-delivery 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.

    
    

14. As the claimants, the burden rested on Petitioners to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1977) ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

15. Here, it has been established that the physician who provided obstetrical services at birth was a "participating physician," as that term is defined by the Plan, and that Christopher suffered a "birth-related neurological injury," as that term is defined by the Plan. Consequently, Christopher

    qualifies for coverage under the Plan. Section 766.309, Florida Statutes.

16. While Christopher qualifies for coverage under the Plan, Petitioners have sought to avoid the Hospital's attempt to invoke the Plan as their exclusive remedy by averring that the health care providers (the participating physician and the Hospital) failed to comply with the notice provisions of the Plan. Consequently, it is necessary for the administrative law judge to resolve whether, as alleged by the Hospital, appropriate notice was given or, if not given, any failure to accord notice should be excused, as harmless. O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, supra. As the proponent of such issue, the burden rested on the Hospital to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied. See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308, 311 (Fla. 1997)("[T]he assertion of NICA exclusivity is an affirmative defense.") See also Balino v. Department of Health

    and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.").

17. Pertinent to the issue of notice, Section 766.316, Florida Statutes, provided, at the time of Christopher's birth, as follows3:

    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.

    
    

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

    
    

    309 (Fla. 1997), the Florida Supreme Court had before it the following question certified by the court in Braniff v. Galen of Florida, Inc., 669 So. 2d 1051 (Fla. 1st DCA 1995), as a matter of great public importance:

    Whether Section 766.316, Florida Statutes (1993), requires that health care providers give their obstetrical patients pre-delivery notice of their participation in the Florida Birth Related Neurological Injury Compensation Plan as a condition precedent to the providers' invoking NICA as the patient's exclusive remedy?

    
    

    In addressing the question, the Florida Supreme Court described the legislative intent and purpose of the notice requirement as follows:

    . . . the only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in

    the plan. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth- related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." Section 766.316. This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies. Turner v. Hubrich, 656 So. 2d 970, 971 (Fla. 5th DCA 1995). In order to effectuate this purpose a NICA participant must give a patient notice of the "no-fault alternative for birth-related neurological injuries" a reasonable time prior to delivery, when practicable.

    
    

    Our construction of the statute is supported by its legislative history. Florida's Birth- Related Neurological Injury Compensation Plan was proposed by the 1987 Academic Task Force for Review of the Insurance and Tort Systems. In its November 6, 1987, report, the Task Force recommended adoption of a no-fault compensation plan for birth-related neurological injuries similar to the then newly enacted Virginia plan However,

    the Task Force was concerned that the Virginia legislation did not contain a notice requirement and recommended that the Florida plan contain such a requirement. The Task Force believed that notice was necessary to ensure that the plan was fair to obstetrical patients and to shield the plan from constitutional challenge. The Task Force explained in its report:

    
    

    The Virginia statute does not require participating physicians and hospitals to give notice to obstetrical patients that they are

    participating in the limited no-fault alternative for birth-related

    neurological injuries. The Task Force recommends that health care providers who participate under this plan should be required to provide reasonable notice to patients of their participation. This notice requirement is justified on fairness grounds and arguably may be required in order to assure that the limited no fault alternative is constitutional.

    
    

    Task Force Report at 34 (emphasis added). Since Florida's NICA plan was the result of the Task Force's report, it is only logical to conclude that the plan's notice requirement was included in the Florida legislation as a result of this recommendation and therefore was intended to be a condition precedent to immunity under the plan.

    
    

    Consequently, the court concluded:

    
    

    . . . 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.

    
    

19. In Board of Regents v. Athey, 694 So. 2d 46 (Fla. 1st DCA 1997), the First District Court of Appeal, consistent with its decision in Braniff v. Galen of Florida, Inc., supra, again resolved that notice was a condition precedent to invoking the Plan as a patient's exclusive remedy.4 Of particular interest to this proceeding, the court in Athey (under circumstances where it

    was alleged neither the participating physicians nor the hospital gave the pre-delivery notice required by the Plan) spoke to the

    independent obligation of both the physician and the hospital to accord the patient notice, as mandated by Section 766.316, Florida Statutes, as follows:

    Under the plan, a "participating physician" is one who is "licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation" in NICA. Section 766.302(7), Fla. Stat. (1989). Thus, if a hospital has a "participating physician" on staff, to avail itself of NICA exclusivity the hospital is required to give pre-delivery notice to its obstetrical patients. In addition, except for residents, assistant residents and interns who are exempted from the notice requirement, a participating physician is required to give notice to the obstetrical patients to whom the physician provides services. Under section 766.316, therefore, notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery. [Conversely, it reasonably follows, notice on behalf of the participating physician will not by itself satisfy the notice requirement imposed on the hospital.]

    
    

    Id. at 49.

    
    

20. The court in Athey further resolved that "[h]aving failed to take advantage of a reasonable opportunity to provide pre-delivery notice, a health care provider [, such as the Hospital], will not be heard to complain that notice, if given, would have been ineffective" or, it reasonably follows, would not

    have altered the patient's choice of health care providers. In so concluding, the court reasoned:

    . . . Recognizing that the notice under section 766.316 "is intended to permit an informed choice between alternatives before delivery," Braniff, 669 So. 2d 1053, appellants reason that the patients here had no real choice in delivery alternatives because, as the undisputed facts reflect, there were no other hospitals or birthing centers in the county where these Medicaid patients could have gone for the birth of their children. Further, appellants contend since these patients were in active labor when they presented to UMC, it would have been medically unsafe and inappropriate to have transferred them to another health care institution for delivery. Thus, appellants argue, these patients were denied an "informed choice," not because of any failure to provide the NICA notice, but because they were precluded from seeking care at a health care facility other than UMC as a result of both their status as Medicaid patients and their medical conditions. Since no "informed choice" was possible for these patients at the time they presented to UMC under the instant circumstances, appellants argue they had no opportunity to provide an efficacious notice under section 766.316.

    
    

    We find this argument to be without merit. Appellants are inviting this court to determine, since pre-delivery NICA notice is required under Braniff, at which point prior to delivery the notice must be given to provide "an informed choice between 'alternatives' before delivery." Id. We decline this invitation. To accept such an invitation, this court would encourage uncertainty not only by permitting health care providers to "ignore the notice requirement and then assert the NICA exclusivity to defeat a civil action," id., but also by allowing future claimants to

    challenge any notice given on the grounds that their pre-delivery notice came too late to provide realistic choice of alternative providers.

    
    

    . . . We believe the use of a bright-line rule here will be most in keeping with the legislative intent of the notice requirement in section 766.316. We hold that health care providers who have a reasonable opportunity to give notice and fail to give predelivery notice under section 766.316, will lose their NICA exclusivity regardless of whether the circumstances precluded the patient making an effective choice of provider at the time the notice was provided. See Levine v. Dade County School Board, 442 So. 2d 210, 213 (Fla. 1983)("Consideration of the efficacy of or need for the notice requirement is a matter wholly within the legislative domain."). Having failed to take advantage of a reasonable opportunity to provide pre- delivery notice, a health care provider will not be heard to complain that notice, if given, would have been ineffective.

    
    

    Id. at 50.

    
    

21. The conclusions reached by the court in Athey regarding the independent obligation of the physician and the hospital to accord the patient notice "as to the limited no-fault alternative for birth-related neurological injuries" are consistent with basic principles of statutory construction. First, the statutory language in Section 766.316, clearly supports the court's conclusion:

    Each hospital with a participating physician on its staff and each participating physician

    . . . shall provide notice to the obstetrical patients as to the limited no-fault

    alternative for birth-related neurological injuries . . . (emphasis added).

    
    

    Had the Legislature intended for the patient to receive notice from only the physician or the hospital, the statute could easily have been worded to reflect that intention. The legislature's choice of clear, unambiguous language to the contrary evidences its intention that Plan exclusivity will preclude a civil action only when the hospital and the participating physician have provided notice. As noted in Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984):

    Florida case law contains a plethora of rules and extrinsic aids to guide courts in their efforts to discern legislative intent from ambiguously worded statutes. However, [w]hen 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 . . . . Courts of this state are without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power. (citations omitted).

    
    

    Accord, Tropical Coach Line, Inc. v. Carter, 121 So. 2d 779, 782 (Fla. 1960)("If the language of the statute is clear and unequivocal, then the legislative intent must be derived from the words used without involving incidental rules of construction or engaging in speculation as to what the judges might think that the legislators intended or should have intended.")

    Finally, because the Plan, like the Workers' Compensation Act, is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms. Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668

    So. 2d 974, 977 (Fla. 1996).

    
    

22. Given the foregoing, it must be resolved that where, as here, notice was not given by the hospital, the patient may accept compensation under the Plan (thereby foreclosing the filing or continuation of a civil suit against the participating physician, hospital or others involved with the labor or delivery) or reject the Plan benefits and pursue her common law remedies. See Braniff v. Galen of Florida, Inc., supra, at page

    1053 ("The presence or absence of notice will neither advance or defeat the claim of an eligible NICA claimant who has decided to invoke the NICA remedy . . . Notice is only relevant to the defendants' assertion of NCIA exclusivity where the individual attempts to invoke a civil remedy.") Accord, O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, supra, at page 627 ("We recognize that lack of notice does not affect a claimant's ability to obtain compensation from the Plan.") That the participating physician may have complied with the notice provisions, as he did in this case, does not alter the conclusion reached.

23. In so concluding, it is observed that there is nothing in the language chosen by the Legislature that would suggest that a participating physician, hospital or other provider involved in the birth process enjoys any benefit (i.e., Plan exclusivity or immunity) independently from that enjoyed by all persons or entities involved in the birth process. Stated differently, Plan exclusivity and Plan benefits are inclusive, not severable. See Section 766.303(2), Florida Statutes (The rights and remedies granted by the Plan are exclusive of any civil or other remedies that may be available against any person or entity directly involved in the birth process during which injury occurs). See also Gilbert v. Florida Birth-Related Neurological Injury Compensation Association, 724 So. 2d 688, 690 (Fla. 2d DCA

    1999)("[I]f an administrative petition results in a determination, that the infant is a NICA baby, a civil action is foreclosed . . . [since] [t]he remedies are mutually exclusive.") Consequently, it must be resolved that where, as here, the hospital failed to give the patient notice, neither the participating physician (even though he gave notice) nor any other health care provider involved in the birth process can enforce the exclusivity of the Plan. Rather, acceptance of Plan benefits under such circumstances is an option to be exercised at the discretion of the claimants. Conversely, if rejected, the claimants may proceed with their civil remedies, and the health

    care providers may not assert Plan exclusivity to defeat such civil action.

24. While the Plan has been interpreted by the courts to accord claimants, such as Petitioners, the option to accept coverage under the Plan (thereby foreclosing the filing or continuation of any civil action) or to reject the Plan benefits and pursue their common law remedies, neither the Plan nor the courts expressly address how or when that election must be manifested. Notably, however, the Plan does speak to such matters with regard to another exception to the exclusivity of the remedy afforded by the Plan. That exception is prescribed by Section 766.303(2), Florida Statutes, which permits a civil action under the following circumstances:

    . . . 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 providing for in s. 766.311. (emphasis added.)

25. Since the courts have interpreted the Legislature's intention with regard to the notice requirements of Section

    766.316 to accord claimants, such as Petitioners, the option of accepting or rejecting Plan coverage, it is reasonable to infer that, as with the first exception, the Legislature intended that

    a claimant's election to proceed with their common law remedies be evidenced "prior to and in lieu of payment of an award under ss. 766.301-766.316," and that such election be made "before the award of the division becomes conclusive and binding as provided for in s. 766.311." Therefore, absent the rejection of the award before it becomes final as provided in Section 766.311, it reasonably follows that the remedy accorded by the Plan will be considered exclusive and will bar the filing or continuation of any civil action.

26. Where, as here, the administrative law judge determines that "the infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth," the administrative law judge is required to make a determination as to "how much compensation, if any, is to be awarded pursuant to s. 766.31." Section 766.309(1)(c), Florida Statutes. In this case, the issues of compensability and the amount of compensation to be awarded were bifurcated. Accordingly, absent agreement by the parties, or rejection of this award by the claimants, a further hearing will be necessary to resolve any existing disputes regarding "actual expenses," the amount and manner of payment of "an award to the parents or natural guardians," and the "reasonable expenses incurred in connection with the filing of the claim." Section 766.31(1), Florida Statutes. Nevertheless, and notwithstanding

that matters related to the amount of compensation may need to be addressed (absent rejection of Plan benefits by Petitioners), the determination that the claim qualifies for compensation under the Plan constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

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

ORDERED that the claim for compensation filed by Mike Kocher and Lynn Kocher, as parents and natural guardians of

Christopher Kocher, a deceased minor, and NICA's proposal to accept the claim for compensation be and the same are hereby approved.

IT IS FURTHER ORDERED that, absent timely rejection of this award by the Claimants, that:

1. NICA shall make immediate payment of all expenses previously incurred, and shall make payment for future expenses as incurred.

2. Mike Kocher and Lynn Kocher, as the parents and natural guardians of Christopher Kocher, a minor, are entitled to an award of up to $100,000. The parties are accorded 45 days from the date of this order to resolve, subject to approval by the administrative law judge, the amount and manner in which the award should be paid. If not resolved within such period, the

   parties will so advise the administrative law judge, and a hearing will be scheduled to resolve such issue.

3. Petitioners are entitled to an award of reasonable expenses incurred in connection with the filing of the claim, including reasonable attorney's fees. The parties are accorded

45 days from the date of this order to resolve, subject to approval by the administrative law judge, the amount of such award. If not resolved within such period, the parties will so advise the administrative law judge, and a hearing will be scheduled to resolve such issue.

IT IS FURTHER ORDERED that pursuant to Section 766.312, Florida Statutes, jurisdiction is reserved to resolve any disputes, should they arise, regarding the parties' compliance with the terms of this Final Order.

DONE AND ORDERED this 14th day of May, 2001, 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2001.

ENDNOTES

1/ Christopher, described as "Twin B" in the medical records, was the second of twin boys born to Mrs. Kocher that day. The first twin ("Twin A") was apparently born without complication, and is not the subject matter of the petition filed herein.

2/ While Petitioners stipulated that they received timely notice of Dr. Mastry's participation in the Plan, Mrs. Kocher denied that she had received a copy of the brochure titled "Peace of Mind for an Unexpected Problem." Here, the more compelling proof supports the conclusion that Mrs. Kocher did receive the brochure from

Dr. Benson on December 5, 1995, while they discussed the Plan and OB/GYN Associates participation in the Plan, as discussed more fully infra.

3/ Effective July 1, 1998, Section 766.316, Florida Statutes, was amended to read 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 as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met.

Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(8)(b) or when notice is not practicable. (Amendment emphasized.)

Section 7, Chapter 98-113, Laws of Florida, provided that the "[a]mendments to section 766.316, Florida Statutes, shall take effect July 1, 1998, and shall apply only to causes of action accruing on or after that date." However, such amendments basically codified the conclusions reached in Galen of Florida Inc. v. Braniff, discussed infra.

4/ The court in Athey certified the same question to the Florida Supreme Court that it had certified in Braniff v. Galen of Florida, Inc., supra. In University Medical Center, Inc. v.

Athey, 699 So. 2d 1350 (Fla. 1997), the Florida Supreme Court, Per Curiam, concluded:

In Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997), we answered the certified question by holding "that as a condition precedent to invoking the Florida Birth- Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery." 696 So. 2d at 309.

Accordingly, we answer the question certified here as we did in Galen [,] approve the decision under review to the extent it is consistent with that opinion . . . [and decline to reach any other issues raised by the petitioners].

COPIES FURNISHED:

(By certified mail)

Lynn Larson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101 Post Office Box 14567

Tallahassee, Florida 32317-4567

Kenneth J. Plante, Esquire Brewton, Plante & Plante, P.A.

225 South Adams Street, Suite 250 Tallahassee, Florida 32301

Ana Rivero-Alexander, Esquire Ferraro & Associates, P.A.

200 South Biscayne Boulevard, Suite 3800 Miami, Florida 33131

David S. Nelson, Esquire Smith & Fuller, P.A. Post Office Box 3288 Tampa, Florida 33601

Michael Mastry, M.D. 701 6th Street, South

St. Petersburg, Florida 33701

Bayfront Medical Center 701 6th Street, South

St. Petersburg, Florida 33701

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Mark Casteel, 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: 00-004567N

Orders for Case No: 00-004567N