STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NICHOLAS J. SCHUR and LISA S. )
SCHUR, as Personal ) Representatives of the Estate ) of NICHOLAS ERWIN SCHUR, )
deceased, )
)
Petitioners, )
)
vs. )
)
FLORIDA BIRTH-RELATED )
NEUROLOGICAL INJURY )
COMPENSATION ASSOCIATION, )
)
Respondent, )
)
and )
) MARIJANE Q. BOYD, M.D.; BEACHES ) OBSTETRICAL AND GYNECOLOGICAL ) PRACTICE, INC.; and NORTH )
FLORIDA OBSTETRICAL & ) GYNECOLOGICAL ASSOCIATES, P.A., )
)
Intervenors. )
Case No. 00-5054N
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 May 30, 2001, by telephone, and on July 26, 2001, in Jacksonville, Florida.
APPEARANCES1
For Petitioner: C. Rufus Pennington, III, Esquire
Margol & Pennington, P.A.
One Independent Drive, Suite 1700 Jacksonville, Florida 32202
For Respondent: Kenneth J. Plante, Esquire
Brewton, Plante & Plante, P.A.
225 South Adams Street, Suite 250 Tallahassee, Florida 32302-3068
For Intervenors: Mary Bland Love, Esquire
Gobelman & Love
200 West Forsyth Street Suntrust Building, Suite 1700 Jacksonville, Florida 32202
STATEMENT OF THE ISSUES
Whether birth-related neurological injuries which result in death during the neonatal period2 are covered by the Florida Birth-Related Neurological Injury Compensation Plan (Plan) and, if so, whether Nicholas Erwin Schur, a deceased minor, otherwise qualifies for coverage under the Plan.
Whether the notice requirements of the Plan were satisfied.
Whether the Division of Administrative Hearings has the exclusive jurisdiction to resolve or, alternatively, must preliminarily resolve, whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan coverage and pursue such a civil suit.
What effect, if any, the claimants' settlement with the birthing hospital has on the availability of benefits under the Plan.
Whether the participating physician's corporate employers have standing to participate in this proceeding.
PRELIMINARY STATEMENT
On December 13, 2000, Nicholas J. Schur and Lisa S. Schur, as parents and natural guardians of Nicholas Erwin Schur, a deceased minor, and co-personal representatives of their deceased son's estate, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Pertinent to this case, the petition averred:
Petitioners . . . have filed an action in the Circuit Court, 4th Judicial Circuit in and for Duval County, Florida, styled Nicholas J. Schur and Lisa S. Schur, as personal representatives of the Estate of Nicholas Erwin Schur, deceased, Plaintiffs vs. Baptist Medical Center of the Beaches, Inc., a Florida corporation; Marijane Q. Boyd, M.D.; Beaches Obstetrical and Gynecological Practice, Inc., a Florida corporation; and North Florida Obstetrical & Gynecological Associates, P.A., a Florida corporation, Defendants, CASE NO. 00-01458- CA, DIVISION CV-C, in which they allege that the defendants in that proceeding acted with willful and wanton disregard for the safety of Mrs. Schur and her infant son, so that the claims fall within the exception to the exclusive remedy provisions of the Florida Birth-Related Neurological Injury Compensation Plan set forth in Section
766.303, Florida Statutes. The
aforesaid civil action remains pending. However, [by order of November 17, 2000] the Circuit Court . . . [granted the Defendants' Motion to Abate based on its perception that, given certain amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes (Supp. 1998), and the decision in O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000), DOAH had exclusive jurisdiction to determine not only compensability, but also whether a claim falls within the "willful and wanton disregard of human safety" exception to NICA jurisdiction, found in Section 766.303(2), Florida Statutes].[3]
In accordance with Section 766.303(2), Florida Statutes, and other provisions of the Florida Birth-Related Neurological Injury Compensation Plan, petitioners respectfully submit that the Division of Administrative Hearings is not required to make a finding, nor does it have jurisdiction to make a finding, as to whether the defendants in the pending civil action acted with willful and wanton disregard of patient safety; and that an Order should therefore be entered finding that the claim is compensable and determining the amount of benefits that are payable, but allowing petitioners to continue to pursue their elected remedy of a civil action under Section 766.303(2).
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on December 15, 2000, and on January 22, 2001, NICA gave notice that it had determined that the claim was compensable under the Plan. However, given Petitioners' allegation that the infant's injury was precipitated by the health care providers' willful and wanton
disregard for the safety of Mrs. Schur and her infant son, NICA requested that an evidentiary hearing be set to resolve the pending issues.
On January 30, 2001, a status conference was held to address the status of the case. After discussion with the parties, including the health care providers (named as defendants in the civil action) who had requested leave to intervene, a briefing schedule was established to accord the parties an opportunity to address whether Petitioners' claim that the infant's injury was occasioned by the health care providers' willful and wanton disregard for the safety of Mrs. Schur and her unborn child was a matter within the jurisdiction of DOAH to resolve. Subsequently, by order of February 26, 2001, the request of the health care providers for leave to intervene and Petitioners' request for leave to file an amended petition were granted.
By their amended petition, Petitioners also averred that the Plan did not apply to, or afford coverage for, a birth-related neurological injury which resulted, as it did here, in the infant's death during the neonatal period. Specifically, Petitioners averred that:
. . . because their infant son died in the neonatal period before any substantial covered expenses under the Plan were incurred (other than the possibility of an award to the parents), his death was not intended by the Legislature to be covered by the Plan, should not be covered by the Plan, and is not
covered by the Plan, and petitioners are not precluded from bringing a civil action for negligence in causing their infant son's wrongful death.
Thereafter, without objection, Petitioners were also accorded the opportunity to avoid the exclusive remedy afforded by the Plan based on their contention that the participating physician failed to comply with the notice provisions of the Plan and to contest the standing of the participating physician's corporate employers to participate in this proceeding.
The parties submitted their briefs on the issue of DOAH's jurisdiction to resolve the issue of willful and wanton disregard of patient safety, and on April 5, 2001, oral argument was entertained. Subsequently, by order of April 30, 2001, it was resolved that:
. . . Having given due consideration to the matter, it is resolved that the provision of Subsection 766.303(2), Florida Statutes, which permit a claimant to pursue a civil action, as opposed to accepting the benefits of the Plan, "when 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 . . . [the Plan]" is an opt-out provision personal to the claimants. Stated otherwise, the opportunity to reject Plan benefits is an option to be exercised based on the sound discretion of the claimants and at their risk, and does not, as contended by the Association and the Intervenors, require a prior resolution by the Administrative Law Judge, whether by proffer or evidentiary
hearing, that there exists clear and convincing evidence to support such a cause of action. According, it is
ORDERED that:
1. For reasons that will be explained more fully in the final order to be ultimately entered in this matter, it is resolved, as advocated by Petitioners, that any civil claim that the Petitioners may choose to pursue, after a finding of compensability and in lieu thereof, based on their contention that the infant's injury was occasioned by a willful and wanton disregard for the safety of Mrs. Schur and her unborn child is a right personal to the Petitioners and is not a matter on which Petitioners need offer any proof in this proceeding . . . .
On May 30, 2001, a hearing was held to resolve whether NICA's proposal to accept the claim as compensable should be approved. Notably, on the same day, Petitioners filed a notice that they had settled with Intervenor Baptist Medical Center of the Beaches, Inc. That settlement, given the provisions of Section 766.304, Florida Statutes, which provides that "[a]n action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered," interjected a new issue into the proceeding which, together with the remaining issues, was the subject matter of a hearing held on July 26, 2001. In the interim, Intervenor Baptist Medical Center of the Beaches, Inc., requested and was granted leave to withdraw as an intervenor.
At the hearing held May 30, 2001, the parties stipulated to the factual matters set forth in paragraphs 1, 2, and 4, and that Baptist Medical Center of the Beaches, Inc., complied with the notice provisions of the Plan. Petitioners' Exhibit 1 (the medical records filed with DOAH on December 13, 2000) was received into evidence. No witnesses were called and no further exhibits were offered.
At the hearing held July 26, 2001, Petitioners' Exhibit 2 (a Stipulated Record on Issue of Notice, filed with DOAH on July 19, 2001), Petitioners' Exhibit 3 (a pamphlet titled Vaginal Birth After Cesarean Delivery), Petitioners' Exhibit 4 (a pamphlet titled Maternal Serum Screening for Birth Defects), and Petitioners' Exhibit 5 (a Mutual Release, Indemnification, and Confidentiality Agreement between Petitioners and Baptist Medical Center of the Beaches, Inc.) were received into evidence, and Lisa Schur and Rebecca Moorhead, M.D., were called as witnesses by Intervenors. No further witnesses were called and no further exhibits were offered.
The transcript of the May 30, 2001, hearing was filed
July 26, 2001, and the transcript of the July 26, 2001, hearing was filed August 22, 2001. The parties, based on their agreement, were accorded until September 15, 2001, to file proposed final orders. 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
Petitioners, Nicholas J. Schur and Lisa Schur, are the parents and natural guardians of Nicholas Erwin Schur (Nicholas), a deceased minor, and co-personal representatives of their deceased son's estate. Nicholas was born September 20, 1998, at Baptist Medical Center of the Beaches, Inc. (Baptist Medical Center), a hospital located in Jacksonville Beach, Duval County, Florida, and his birth weight exceeded 2,500 grams. Nicholas died on September 24, 1998, during the neonatal period at Baptist Medical Center.4
The physician providing obstetrical services during Nicholas' birth was Marijane Q. Boyd, M.D., 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.
Coverage under the Plan
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.
Here, NICA has concluded, and the parties have stipulated, that Nicholas suffered a "birth-related neurological injury," as defined by the Plan. Consequently, since obstetrical services were provided by a "participating physician" at birth, NICA is of the view that, under the provisions of the Plan, the claim is compensable. NICA's conclusion is grossly consistent with the proof and is, therefore, approved.5
Notice of Plan participation
While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity by contending that the participating physician who delivered obstetrical services at birth (Dr. Marijane Boyd) failed to comply with the notice provisions of the Plan. As for Baptist Medical Center, the parties have stipulated that it provided timely pre-delivery notice as envisioned by the Plan. Consequently, it is only necessary to resolve whether, as alleged by the health care providers, the notice provisions of the Plan were satisfied by or on behalf of Dr. Boyd. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association,
757 So. 2d 624 (Fla. 5th DCA 2000), and University of Miami v.
M.A., 26 Fla. L. Weekly D1473a (Fla. 3d DCA June 13, 2001).
Pertinent to the notice issue, the proof demonstrates that on or about January 27, 1998, Mrs. Schur sought prenatal care from her existing provider, Cleveland W. Randolph, Jr., M.D., a physician who, together with Samuel A. Christian, M.D., maintained an office for the practice of obstetrics and gynecology (OB/GYN) known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division I, at
1375 Roberts Drive, Suite 205, Jacksonville Beach, Florida. At the time, Drs. Randolph and Christian, like approximately 40 other obstetricians practicing in the Jacksonville area, were employees/shareholders of North Florida Obstetrical & Gynecological Associates, P.A. Notably, all obstetricians employed by North Florida Obstetrical & Gynecological Associates, P.A., were "participating physicians" in the Plan.
Consistent with that relationship, Mrs. Schur was offered and accepted a "Contract for Obstetrical Services" (on January 27, 1998) which identified North Florida Obstetrical & Gynecological Associates, P.A., as the entity through which
Dr. Randolph would be providing obstetrical and post partum care. That agreement provided, inter alia, as follows:
North Florida Obstetrical & Gynecological Associates, P.A., provides total obstetrical and post partum care. This includes a
physical examination and prenatal care, delivery of the infant and post partum care. Prenatal care includes all office visits and routine lab evaluation related to the pregnancy. Post partum care includes care for problems relating to the pregnancy or delivery and routine examinations, following the delivery up to 12 weeks. North Florida Obstetrical & Gynecological Associates, P.A., agrees to provide availability of a licensed obstetrician on call 24 hours a day in case of emergency.
The agreement further established a fee schedule for basic comprehensive obstetrical care, cesarean section, and other obstetrical services.
On March 15, 1998, Dr. Randolph notified Mrs. Schur, as well as his other obstetrical patients, that he would no longer deliver babies, and that his "partner, Dr. Sam Christian," would provide that service. Thereafter, on March 23, 1998, Mrs. Schur had a prenatal visit with Dr. Christian (to decide whether she would accept him as her obstetrician) and decided not to continue her care with Dr. Christian (due to his increased patient load).
Effective May 19, 1998, Mrs. Schur elected to transfer her obstetrical and post partum care to the offices of
Drs. Rebecca Moorhead, Patricia Schroeder, and Marijane Q. Boyd, another small group practice affiliated with North Florida Obstetrical & Gynecological Associates, P.A. That office, known as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, was located in a professional office
building adjacent to the building occupied by Doctors Randolph and Christian.
While the group practice of Drs. Moorhead, Schroeder, and Boyd was affiliated with North Florida Obstetrical & Gynecological Associates, P.A. (North Florida), and they held themselves out to the public as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II, as discussed more fully infra, the principles structured their business relationship through two separate professional associations. Regarding those associations, the proof demonstrated that Doctors Moorhead and Schroeder were employees of North Florida and
Dr. Boyd was an employee (the sole employee) of Beaches Obstetrical and Gynecological Practice, Inc. (Beaches OB/GYN).6
Under the terms of a Management Services Agreement, effective August 1, 1997, North Florida (Drs. Moorhead and Schroeder/Beaches-Division II) and Beaches OB/GYN (Dr. Boyd) outlined the manner in which the group practice of Drs. Moorhead, Schroeder, and Boyd would be conducted, as well as how expenses and revenues would be shared. As structured, North Florida agreed to provide billing, administrative and other support services for Beaches OB/GYN (Dr. Boyd) and Beaches OB/GYN agreed that Dr. Boyd would provide her professional services. As compensation for North Florida's services, Beaches OB/GYN agreed to pay what was essentially one-third of the direct operating
expenses incurred by North Florida in the operation of the group practice. As for revenue sharing, the agreement contemplated that North Florida and Beaches OB/GYN would receive a share of professional fees received based on the actual professional services provided by North Florida physicians (Drs. Moorhead and Schroeder) and Beaches OB/GYN's provider (Dr. Boyd).
While Drs. Moorhead, Schroeder, and Boyd elected to structure their group practice through two professional associations, they otherwise did business as, and held themselves out to the public as, North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division II. Notably, the signage on the front door so identified their practice, followed by the names of Drs. Moorhead, Schroeder, and Boyd; and, all paperwork of note likewise identified their practice as North Florida Obstetrical & Gynecological Associates, P.A., Beaches-Division
II. Indeed, Mrs. Schur was, at the time, unaware of any entity known as Beaches Obstetrical and Gynecological Practice, Inc.7
Finally, with regard to the manner in which the group practiced, the proof demonstrated that Drs. Moorhead, Schroeder, and Boyd, like many group practices, shared patients, with each patient (including Mrs. Schur) rotating her prenatal care through all three physicians, and shared calls, with each physician on call every third day and every third weekend. With such an arrangement, it was strictly a matter of chance which of the
physicians (Drs. Moorhead, Schroeder, or Boyd), all of whom were participating physicians in the Plan, would deliver a patient's child.
Regarding the notice issue, it is resolved that Mrs. Schur was provided timely notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., 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. Such conclusion is based on the more credible proof which demonstrates that on June 15, 1998, when Mrs. Schur presented to the offices of Drs. Moorhead, Schoder, and Boyd, that they had an established routine whereby on a patient's first office visit she would be provided the notice contemplated by Section 766.316, Florida Statutes. Here, consistent with that routine, the proof demonstrates that on such date, when she presented for her first office visit, Mrs. Schur was given a form titled NOTICE TO OBSTETRIC PATIENT, which provided:
I have been furnished information by North Florida Obstetrics & Gynecology Associates,
P.A. prepared by the Florida Birth Related Neurological Injury Compensation Association, and have been advised that North Florida Obstetrics & Gynecology Associates, P.A. is a participating practice 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.
Dated this day of , 19 .
Signature
(NAME OF PATIENT)
Social Security No.:
Attest:
(Nurse or Physician)
Date:
Rather than sign the form, Mrs. Schur wrote across it the words "received at Dr. Randolph's."
At hearing, Mrs. Schur testified that, although she does not recall the incident, the best explanation she could offer for writing "received at Dr. Randolph's" instead of signing the form was that "someone would have had to tell me to do that
. . . [since] I would not have known to write that on there." Such explanation is logical and credible; however, having accepted the explanation for why the entry was made, instead of signing the form, does not detract from the strong inference to
be drawn from the entry. Indeed, having written the words "received at Dr. Randolph's" across the form is compelling evidence that, at the time, Mrs. Schur had a clear recollection that, during the period she was under the care of Dr. Randolph, she received notice that the physicians associated with North Florida Obstetrical & Gynecological Associates, P.A., were participating physicians in the Plan, as well as a copy of the NICA brochure that described the NICA program.8
As further evidence that notice was given, it is observed that established routine at the offices of
Drs. Moorhead, Schoder, and Boyd also mandated that when notice was given an item titled "NICA ", and contained within a checklist (titled Plans/Education) on a patient's prenatal record, receive a "" in the space following the acronym NICA. Notably, at or about the same time Mrs. Schur wrote across the notice "received at Dr. Randolph's" the space following the acronym NICA was annotated to read " c Dr. Randolph." Given Mrs. Schur's entry on the notice form ("received at
Dr. Randolph's"), as well as the established routine, it is reasonable to conclude that such annotation was intended to reflect that Mrs. Schur had received NICA notice when she was a patient of Dr. Randolph.9
While the proof demonstrated that Mrs. Schur received notice, as contemplated by Section 766.316, Florida Statutes,
that the physicians associated with North Florida Obstetrical & Gynecological Associates, Inc., were participants in the Plan, it likewise demonstrated that no separate notice was provided that Dr. Boyd, either individually or as an employee of Beaches Obstetrical & Gynecological Practice, Inc., was a participant in the Plan. However, for reasons discussed in the Conclusions of Law which follow, such failure was harmless.
The settlement agreement with Baptist Medical Center
On June 20, 2001, Nicholas J. Schur and Lisa S. Schur, individually and as Personal Representatives of the Estate of Nicholas Erwin Schur (Claimants) and Baptist Medical Center of the Beaches, Inc., formally resolved all claims or potential claims of the Claimants against Baptist Medical Center and North Florida Obstetrical & Gynecological Associates, P.A., including those matters relating to the pending civil action in the Circuit Court, Duval County, Florida, Case No. 00-01458-CA, Division CV- C; however, the Claimants reserved all claims they had against Marijane Q. Boyd and Beaches Obstetrical and Gynecological Practice, Inc. As consideration for that settlement, the Claimants received the sum of $87,500 and the release and discharge of all claims Baptist Medical Center had against the Claimants arising from the care provided to Nicholas or
Mrs. Schur.
CONCLUSIONS OF LAW
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.
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.
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.
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.
In discharging this responsibility, the administrative law judge must make the following determination based upon the available evidence:
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).
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.
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.
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.")
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 Nicholas suffered a "birth-related neurological injury," as that term is defined by the Plan. Consequently, Nicholas qualifies for coverage under the Plan. Section 766.309, Florida Statutes.
In concluding that Nicholas qualifies for coverage under the Plan, Petitioners' argument that the provisions of Section 766.301(2), Florida Statutes, evidence a legislative intent that the Plan apply only in cases where the injured infant survives the neonatal period has not been overlooked.10 However, upon consideration, it must be resolved that Petitioners' argument is without merit. University of Miami v. Klein, 603 So. 2d 651, 653 (Fla. 3d DCA 1992)("[B]irth-related neurological injuries which result in post-delivery death are within the Neurological Injury Compensation Plan.")
While Nicholas qualifies for coverage under the Plan, Petitioners have sought to avoid the health care providers' attempt to invoke the Plan as their exclusive remedy by averring that the participating physician 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 health care providers, appropriate notice was given or, if not given, any failure to accord notice should be excused. O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, supra. As the proponent of such issue, the burden rested on the health care providers 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.").
Pertinent to the issue of notice, Section 766.316, Florida Statutes, provides as follows:
Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s.
766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients 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(9)(b) or when notice is not practicable.
In Galen of Florida, Inc. v. Braniff, 696 So. 2d 308,
309 (Fla. 1997), 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.
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.
Here, the notice initially afforded Mrs. Schur by Dr. Randolph's office, as well as the notice she received from the offices of Drs. Moorhead, Schroeder, and Boyd, after she elected to transfer her care to that group, was sufficient to give Mrs. Schur "an opportunity to make an informed choice between using a health care provider participating in the NICA
plan or using a provider who . . . [was] not a participant and thereby preserving her civil remedies." That separate notice was not given on behalf of Dr. Boyd or Beaches Obstetrical and Gynecological Practice, Inc., Dr. Boyd's technical employer, was inconsequential since, under their arrangement, the group consisting of Drs. Moorhead, Schroeder, and Boyd were overtly practicing as North Florida Obstetrical & Gynecological Associates, Inc., and there could have been no confusion on
Mrs. Schur's part that each physician was a participant in the Plan. Moreover, if one were to view the notice, given Dr. Boyd's undisclosed business arrangement, as only effective as to
Drs. Moorhead and Schroeder, it would still be resolved that any failure to accord separate notice on behalf of Dr. Boyd was harmless since, given that it was strictly a matter of chance which physician would deliver Mrs. Schur's child, lack of a separate notice on behalf of Dr. Boyd could not reasonably be said to have deprived Mrs. Schur of "an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who . . . [was] not a participant and thereby preserving her civil remedies."
Having resolved that the notice provisions of the Plan were satisfied, it is necessary to resolve whether, as contended by NICA and Intervenors, the administrative law judge must
resolve whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan benefits and pursue such a cause of action in a civil suit.
Pertinent to the issue raised, the Plan provides:
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.
Florida Birth-Related Neurological Injury Compensation Plan; exclusiveness of remedy.–
There is established the Florida Birth- Related Neurological Injury Compensation Plan for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims . . . .
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, her or 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. (Emphasis added.)
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 . . . .
766.309 Determination of claims; presumption; findings of administrative law judge binding on participants.–
The administrative law judge shall make the following determinations based upon all available evidence:
Whether the injury claimed is a birth- related neurological injury. If the claimant has demonstrated, to the satisfaction of the
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. 766.302(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.
How much compensation, if any, is awardable pursuant to s. 766.31.
If the administrative law judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at the birth, she or he shall enter an order and shall cause a copy of such order to be sent immediately to the parties by registered or certified mail.
766.311 Conclusiveness of determination or award; appeal.–
(1) A determination of the administrative law judge as to qualification of the claim for purposes of compensability under s.
766.309 or an award by the administrative law judge pursuant to s. 766.31 shall be conclusive and binding as to all questions of fact. Review of an order of an administrative law judge shall be by appeal to the District Court of Appeal . . . .
Given the current provisions of the Plan, it is no longer subject to debate that the administrative forum is the exclusive forum to resolve whether a claim is compensable. O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, supra. However, having once resolved that a claim is
compensable, NICA and Intervenors also contend that DOAH is required to resolve whether "there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject Plan benefits and pursue such a civil suit.
Variously, NICA and Intervenors describe DOAH as the exclusive forum to resolve the issue or, alternatively, that DOAH's function is to make a preliminary finding (a non-binding determination) that "there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before the claimants may reject Plan benefits and pursue a civil suit. The parties' contentions are rejected, as unpersuasive.
First, since the language adopted by the Legislature clearly contemplates the filing of a civil suit, where presumably the claimants (plaintiffs) will be required to demonstrate, by clear and convincing evidence, that the defendants were guilty of "bad faith or malicious purpose or willful and wanton disregard
of human rights, safety, or property," it is apparent that DOAH is not the exclusive forum to resolve the issue. Moreover, given the absence of any imperative language in the statute, the parties are equally lost to reasonably articulate a procedure DOAH should employ or a standard DOAH should apply in rendering a preliminary finding (a non-binding determination) that "there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property." Consequently, it must be resolved that there is no requirement under the provisions of the Plan that the administrative law judge must first resolve or has jurisdiction to resolve whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" before a claimant may elect (under the provisions of Section 766.303(2), Florida Statutes) to reject an award and pursue "such [a civil] suit."
City of Cape Coral v. GAC Utilities, Inc., of Florida, 281 So. 2d
493, 495-96 (Fla. 1973)("All administrative bodies created by the Legislature are not constitutional bodies, but, rather, simply mere creatures of statute. This, of course, includes the Public Service Commission . . . . As such, the Commission's powers, duties and authority are those and only those that are conferred expressly or impliedly by statute of the State Any
reasonable doubt as to the lawful existence of a particular power
that is being exercised by the Commission must be resolved against the exercise thereof, . . . and the further exercise of the power should be arrested."), and Department of Environmental Regulation vs. Falls Chase Special Taxing District, 424 So. 2d 787, 793 (Fla. 1st DCA 1982)("An agency has only such power as expressly or by necessary implication is granted by legislative enactment. An agency may not increase its own jurisdiction and, as a creature of statute, has no common law jurisdiction or inherent power such as might reside in . . . a court of general jurisdiction.")
In reaching such conclusion, the argument of NICA and Intervenors, that the 1998 amendments to Sections 766.301 and 766.304, Florida Statutes, read in conjunction with the opinion rendered in O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, supra, compel the conclusion that the administrative forum is the exclusive forum to resolve whether "there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property" has not been overlooked. However, for reasons heretofore discussed, and for additional reasons that follow, such argument is rejected as unpersuasive.11
In O'Leary, where the Plan was silent on the issue, the court was called upon to resolve whether the administrative forum or the trial court should determine the notice question. In
resolving that issue, the court noted that, in Chapter 98-113, Laws of Florida, the Legislature amended Sections 766.301 and 766.304, Florida Statutes, as follows:
Be It Enacted by the Legislature of the State of Florida:
Section 1. Paragraph (d) of subsection (1) of Section 766.301, Florida Statutes, is amended to read:
766.301 Legislative findings and intent.-
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.
Section 2. Section 766.304, Florida Statutes, is amended to read:
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 proposes 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 . . . .
Upon consideration of such amendments, the court concluded:
In reviewing the amendments in light of the McKaughan and Braniff opinions, it appears that the legislature, in sections 1 and 2 of chapter 98-113, was responding adversely to the result reached in McKaughan. In McKaughan, the supreme court concluded that the circuit court, as well as the administrative law judge, could determine whether a claim fell under NICA. The legislature countered that conclusion by adding to Section 766.301 the provision that "whether such claims are covered by this act must be determined exclusively in an administrative proceeding." Likewise, section 766.304 was amended to provide that "the administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable."
The appellants urge, and we agree, that the legislature, by amending section 766.304 to grant exclusive jurisdiction to an administrative law judge to determine whether a claim filed under this act is compensable, clearly meant to correct the dual jurisdiction problem that existed after the McKaughan decision.
[2, 3] The language used by the legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim. Notably, the determination of the adequacy of notice is not excluded from the duties of the administrative law judge. Section 766.304 states that the administrative law judge shall hear all claims and shall exercise the full power and authority granted that is necessary to carry out the purposes of the section. The section further grants exclusive jurisdiction to the administrative
law judge to determine whether a claim is compensable and precludes any civil action until the issue of compensability is determined. We believe that under these amendments, any issue raising the immunity of a health provider, including the issue of whether the health provider satisfied the notice requirements of the Plan is an issue to be decided by the administrative law judge as one which relates to the question of whether the claim is compensable under the Plan. We recognize that lack of proper notice does not affect a claimant's ability to obtain compensation from the Plan.
However, a health provider who disputes a plaintiff's assertion of inadequate notice is raising the issue of whether a claim can only be compensated under the plan. All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.
Our conclusion that the administrative forum is the intended exclusive forum to determine the notice question eliminates the "ping-pong effect," that is, the trial court and the administrative law judge each throwing the case back to the other on this question. We also note that a section 766.316 notice issue is peculiar to a NICA claim. The 766.316 notice is not applicable to a common law tort or contract action. We also believe that it is economical and practicable to both the litigants and judicial system to have all NICA issues determined by one tribunal.
The dismissal by the administrative law judge is vacated and we remand to the Division of Administrative Hearings for further proceedings, including the determination of whether notice was given or excused in this case.
The court's conclusion that "the administrative forum is the intended exclusive forum to determine the notice question"
is logical, as it provides a rational balance between the duties of the administrative forum and the trial court. As the court noted: "[o]ur conclusion . . . eliminates the 'ping-pong effect,' that is, the trial court and the administrative law judge each throwing the case back to the other on this question"; "a section 766.316 notice issue is peculiar to a NICA claim"; "[t]he 766.316 notice is not applicable to a common law tort or contract action"; and "it is economical and practicable to both the litigants and judicial system to have all NICA issues determined by one tribunal". However, the exception to the exclusiveness of remedies provisions of section 766.303 heretofore noted (that "there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property") enjoys no similar nexus with the administrative forum, but does with the courts of general jurisdiction. Moreover, it is evident from the clear language chosen by the legislature that the administrative forum (DOAH) is not the intended exclusive forum to resolve such issue.
Consequently, neither the amendments to Sections 766.301 and 766.305, Florida Statutes, nor the opinion rendered in O'Leary compel the conclusion that the administrative forum has jurisdiction to resolve the exception to the exclusiveness remedies provisions of Section 766.303, or that such issue need
be addressed before a claimant may elect to reject an award and pursue such a civil suit.
Where, as here, it has been resolved that a claim qualifies for coverage under Section 766.309, Florida Statutes, the administrative law judge is usually required to make a determination as to how much compensation, if any, is to be awarded. Section 766.31(1), Florida Statutes. However, when, as here, the proof demonstrates that the Claimants have pursued a recovery or a final judgment has been entered in a civil action, they may not recover an award of compensation under the Plan. Section 766.304, Florida Statutes, ("An action may not be brought under ss. 766.301-766.316, if the claimant recovers or final judgment is entered.")12
Here, the parties agree that by pursuing the civil suit to a settlement with Baptist Medical Center, and having received the proceeds of that settlement, the Claimants are foreclosed from pursuing an award under the Plan. However, the parties disagree as to the consequences of that settlement. Claimants perceive the consequences of their settlement with Baptist Medical Center, as follows:
In enacting the 1998 amendments, the legislature imposed a requirement that, in the event a claimant "recovers or final judgment is entered" in a civil action, then no Plan benefits will be recoverable. In other words, a claimant who obtains a recovery pursuant to a civil suit (or who
obtains a final judgment therein) thereby terminates entitlement to Plan benefits.
* * *
. . . [A]lthough coverage under the Plan would otherwise exist, as held herein, and although Claimants would otherwise have the right to elect coverage, or proceed with a civil action, at their option, due to . . . [their claim of willful and wanton disregard for the safety of Mrs. Schur and her infant son], the settlement with the hospital effectively terminates Plan coverage, and establishes that claimants are limited to their civil remedy, in which no health care provider will be entitled to raise Plan exclusivity as a defense.
Conversely, counsel for the participating physician (Intervenor) is of the view that:
. . . The amendment to Section 766.304 does not create a situation where the claimant's
. . . [through settlement with one health care provider] can terminate a doctor's right
. . . [or, the rights of any other person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which injury occurs] to NICA protection.
The added language to Section 766.304, "an action may not be brought under ss. 766.301-
766.316 if the claimant recovers or final judgment is entered" acts as a prohibition against the claimants obtaining a double recovery . . . [It may also be seen, as heretofore noted, as the legislature's response to a claimant who, notwithstanding the prohibitions of Section 766.304, Florida Statutes, elects to pursue a civil remedy before the issue of compensability has been resolved by the administrative law judge].
Given the Plan provisions, which prohibit the commencement or continuation of a civil suit until compensability is resolved, it would appear that Intervenor's perception of the consequences of the Claimant's settlement of an injury otherwise covered by the Plan is more consistent with the legislature's intention. However, the consequences of a settlement on a civil suit is not a matter that need be resolved, nor is it a matter that should be resolved, by administrative law judge. Rather, the only matter within the jurisdiction of the administrative law judge to resolve is the effect of Petitioners' settlement with Baptist Medical Center on their claim for Plan benefits.13
Finally, Petitioners contend that the participating physician's (Dr. Boyd's) corporate employer (Beaches Obstetrical and Gynecological Practice, Inc.), as well as the corporation through which she provided professional services (North Florida Obstetrical & Gynecological Associates, P.A.), lack standing to intervene in this proceeding. To support that contention, Petitioners rely on Jan Paul Fruiterman, M.D. and Associates, P.C. v. Waziri, 525 S.E. 2d 552 (Va. 2000), wherein the Virginia Supreme Court interpreted the Virginia Birth-Related Neurological Injury Compensation Act, Section 38.2-500 et seq., Code of
Virginia, the Act after which Florida's Plan was patterned, and resolved that the exclusiveness of remedy provisions of the Act
did not extend to the participating obstetrician's professional corporation. In so concluding, the court reasoned as follows:
. . . [T]he Compensation Act provides that "the rights and remedies herein granted to an infant . . . shall exclude all other rights and remedies of such infant, his personal representative, parents, dependents or next of kin, at common law . . . ." Section
38.2-5002(B). "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." Schwartz v. Brownlee, 253 Va. 159, 166, 482
S.E.2d 827, 831 (1997)(citation omitted).
The Compensation Act begins with expressly restrictive definitions. A "[p]articipating physician" is "a physician licensed in Virginia to practice medicine, who practices obstetrics or performs obstetrical services," Section 38.2-5001, and "a licensed nurse- midwife who performs obstetrical services," id., and pays "an annual participating physician assessment to the Program,"
Section 38.2-5020(A). "'Participating Hospital' means a hospital . . . which . . . had in force an agreement with the Commissioner of Health . . . to participate in . . . a program to provide obstetrical care to patients eligible for Medical Assistance Services and to patients who are indigent, and . . . had in force an agreement
. . . whereby the hospital agreed to submit to review of its obstetrical service . . . and . . . had paid the participating assessment pursuant to Section 38.2-5020 . .
. ."
"Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually express." Barr v. Town and Country Properties, 240 Va. 292, 295, 396
S.E.2d 672, 674 (1990)(quoting Watkins v.
Hall, 161 Va. 924, 930, 172 S.E. 445, 447
(1934).
Clearly, the General Assembly did not intend to immunize all health-care providers from tort liability for birth-related neurological injury caused by medical malpractice. The legislature expressly identified those entitled to that immunity as "participating physicians" and "participating hospitals"; then expressly defined "physicians" as obstetricians and nurse-midwives who perform obstetrical services; and then expressly specified that the term "participating" includes payment of an annual assessment by qualified physicians and hospitals to finance the costs of the benefits provided by the Compensation Program. No such assessment was imposed upon a professional corporation. In summary, the Compensation Act expressly limits those entitled to its rights and benefits to selected health-care providers and expressly excludes "a nonparticipating physician or hospital." Section 38.2- 5002(D). The legislative omission of other health-care providers serving during the course of child birth, such as pediatricians, radiologists, and medical partnerships, confirms our conclusion that participating physicians and hospitals were intended to be the only health-care providers afforded immunity from civil liability by the Compensation Act. A professional corporation, the employer of a participating physician, is conspicuous by its absence.
Notably, the exclusiveness of remedy provisions of the Florida Birth-Related Neurological Injury Plan are significantly broader than those of the Virginia Act. As to this issue, the Florida Plan (Section 766.303(2), Florida Statutes) provides:
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, her or 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. (Emphasis added.)
Given the language chosen by the Legislature, it should not be subject to debate that the exclusiveness of remedy provisions of the Plan extend to the participating obstetrician's professional corporation, as well as a corporation through which she practices. Consequently, at the time they were accorded leave to intervene, Beaches Obstetrical & Gynecological Practice, Inc., and North Florida Obstetrical & Gynecological Associates, P.A., had standing; however, given the settlement agreement reached by Baptist Medical Center with the Petitioners, which also resolved all claims or potential claims against North Florida Obstetrical & Gynecological Associates, P.A., it must be resolved that North Florida Obstetrical & Gynecological Associates, lost what standing it had to participate in these proceedings.
Consequently, North Florida Obstetrical & Gynecological Associates, P.A., should be dismissed as a party intervenor.
Where, as here, the administrative law judge determines that a claim qualifies for coverage under the Plan, he is required to enter an order to such effect (even though a claimant is not entitled to pursue an award of benefits), and cause a copy of such order to "be sent immediately by registered or certified mail to each person served with a copy of the petition under s. 766.305(2), Florida Statutes." Section 766.31(3), Florida Statutes. Such an order constitutes final agency action subject to appellant court review. Section 766.311, Florida Statutes.
CONCLUSION
Based on the foregoing Findings of Fact and Conclusions of Law, it is
ORDERED that the claim for compensation filed by Petitioners, Nicholas J. Schur and Lisa S. Schur, as parents and natural guardians of Nicholas Erwin Schur, a deceased minor, and co-personal representatives of the Estate of Nicholas Erwin Schur, deceased, qualifies for coverage under the Plan; however, given Petitioners' settlement with, and recovery from Baptist Medical Center of the Beaches, Inc., they may not pursue or recover an award of benefits.
It is further ORDERED that North Florida Obstetrical & Gynecological Associates, P.A., is dismissed as a party Intervenor for lack of standing to participate.
DONE AND ORDERED this 3rd day of October, 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 3rd day of October, 2001.
ENDNOTES
1/ At the hearing held on May 30, 2001, Michael Harmon, Esquire, appeared on behalf of then Intervenor Baptist Medical Center of the Beaches, Inc. (Baptist Medical Center). Subsequently, by Order of July 25, 2001, Baptist Medical Center's Motion to Withdraw as Intervenor was granted, and no further appearance was entered on its behalf.
2/ The neonatal period is generally understood to refer to the first four weeks after birth. Dorland's Illustrated Medical Dictionary, Twenty-sixth Edition.
3/ While I do not agree, for reasons discussed in the Conclusions of Law, that DOAH has exclusive jurisdiction to resolve whether a claim falls within the "willful and wanton disregard of human safety" exception to Plan exclusivity, I do agree that until the issue of compensability is resolved the claimants could not pursue any civil action. Sections 766.301(1)(d), 766.303(2), and 766.304, Florida Statutes.
Consequently, the court's decision to abate the civil action was appropriate.
4/ The medical records reveal that during the birthing process, Mrs. Schur suffered a spontaneous uterine rupture with complete placental abruption, which deprived Nicholas of oxygen for in excess of 4 minutes and resulted in marked brain damage and ultimately death.
5/ In so concluding, Petitioners' contention that birth-related neurological injuries which result in death in the neonatal period are not covered by the Plan has not been overlooked; however, for reasons appearing in the Conclusions of Law, such contention has been rejected.
6/ In 1999, this arrangement was abandoned, and Dr. Boyd became an employee of North Florida.
7/ The name of the entity, Beaches OB/GYN, apart from appearing on a form authorizing the release of medical information to third-party payors (health insurance carriers) and some third- party billings, consistent with the terms of the Management Services Agreement heretofore discussed, was not evident at the group practice.
8/ In concluding that Mrs. Schur was accorded notice by
Dr. Randolph that the physicians associated with North Florida Obstetrical & Gynecological Associates, Inc., were participating physicians in the Plan, as well as a copy of the NICA brochure that described the program, and that the matter was also addressed with her when she transferred her prenatal care to the offices of Drs. Moorhead, Schoder, and Boyd, the testimony of Mrs. Schur to the contrary has not been overlooked. However, while Mrs. Schur's testimony that she does not recall the particulars of any NICA discussion or the receipt of a NICA brochure is, given the passage of time, credible, her selective recall regarding those discussions and adament recall that she did not receive a NICA brochure is less than credible. Indeed, the compelling proof demonstrates that the NICA program was addressed with her on no less than three occasions: at the offices of Dr. Randolph; at the offices of Drs. Moorhead, Schroeder, and Boyd; and, as the parties have stipulated, at Baptist Medical Center. Consequently, it is improbable that, at the time, she was not aware of the program or that her physicians were participants in the Plan.
9/ Given the conclusion reached, that Mrs. Schur acknowledged receipt of NICA notice while a patient of Dr. Randolph's, as well as a copy of the NICA brochure, it is unlikely that she received an additional copy of the brochure at the offices of
Drs. Moorhead, Schoder, and Boyd.
10/ Section 766.301(2), Florida Statutes, provides:
(2) It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries.
It was Petitioners' view that since infants, such as Nicholas, who die during the neonatal period do not incur costs for custodial care or rehabilitation the Legislature did not intend that the Plan apply to them. Notably, however, the Legislature elected to define coverage based on the nature of an injury, a "birth-related neurological injury," which it perceived would result in unusually high costs, and not on longevity.
11/ With regard to the 1998 amendments to Sections 766.301 and 766.304, Florida Statutes, NICA points to the Legislature's choice of the word "covered" in Subsection 766.301(1)(d), as contrasted with the Legislature's choice of the word "compensable" in Section 766.304, as being significant and evidencing a legislative intent that the administrative law judge has exclusive jurisdiction to resolve whether there is "clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property." Such argument is unpersuasive.
In rejecting NICA's argument it is initially noted that the amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes, were a reaction to the holding in Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 975 (Fla. 1996). There, the supreme court had before it the following question certified to be of great public importance:
Does an administrative hearing officer have the exclusive jurisdiction to determine whether an injury suffered by a new-born infant does or does not constitute a "Birth-
Related Neurological Injury" within the meaning of the Florida Birth-Related Neurological Injury Compensation Plan, Sections 766.301-.316, Florida Statutes (1993), so that a circuit court in a medical malpractice action specifically alleging an injury outside the coverage of the plan must automatically abate that action when the plan's immunity is raised as an affirmative defense pending a determination by the hearing officer as to the exact nature of the infant's injury?
The court answered the question as follows:
. . . [T]he Birth-Related Neurological Injury Compensation Plan . . . does not vest exclusive jurisdiction in an administrative hearing officer to determine if an injury suffered by a new-born infant is covered by the plan when the plan's provisions are raised as an affirmative defense to a medical malpractice action in circuit court. (Emphasis added.)
Notably, the only issue resolved by the court, which prompted the amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes, was whether the administrative hearing officer (now administrative law judge) had exclusive jurisdiction to determine whether an infant suffered a "birth-related injury" within the meaning of the Plan. It is also worthy of note, that the court used the word "covered," as synonymous with the word "compensable." Given such observations, it is most unlikely that the Legislature intended to attach the significance to the word "covered" that NICA suggests. It is further unlikely that if it were the Legislature's intention to accord the administrative law judge exclusive jurisdiction to resolve the issue that it would have been so vague in expressing its intention. Finally, it is apparent from the language adopted by the Legislature, with regard to the exception to the exclusivity of remedy provision of Section 766.303(2), Florida Statutes, that the Legislature clearly contemplated the filing of a civil suit or it would not have provided that "[s]uch suit shall be filed before the award of the division becomes conclusive and binding. . . " Clearly, DOAH is not the exclusive forum to resolve the issue.
12/ Effective July 1, 1998, and applicable to all claims filed on or after that date regardless of the date of birth, the legislature amended Sections 766.301 and 766.304, Florida Statutes, inter alia, 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 and 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. The division may adopt rules to promote the efficient administration of, and to minimize the cost associated with, the prosecution of claims.
As heretofore noted, the majority of the amendments to Sections 766.301(1)(d) and 766.304, Florida Statutes, represent an adverse response to the result reached in Florida Birth-Related Neurological Injury Compensation Association v. McKaughan,
668 So. 2d 974 (Fla. 1996). There, the supreme court had concluded that the circuit court, as well as the administrative law judge, could determine whether a claim fell under the Plan. By the amendments to the Sections 766.301(1)(d) and 766.304, Florida Statutes, the legislature accorded exclusive jurisdiction to the administrative law judge to determine whether a claim was compensable under the Plan. O'Leary v. Florida Birth-Related Neurological Injury Compensation Plan, supra.
As for the amendment which now appears as the second to the last sentence in Section 766.304, Florida Statutes ("An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered."), it would appear that the legislature was responding to or clarifying its intention with regard to an issue then pending in the Second District Court of Appeals. There, in Gilbert v. Florida Birth-Related Neurological Injury Compensation Association, 724 So. 2d 688 (Fla. 2d DCA 1999), 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. By the amendments to the Plan, the legislature evidenced a contrary intention when it resolved 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] until the determinations under s. 766.309 have been resolved by the administrative law judge," and if in the face of such prohibitions a claimant persists and "recovers or final judgment is entered" she may not pursue an award under the Plan.
13/ If Plan immunity is a viable defense to a civil suit when, as here, a claimant settles with less than all health care providers, it may continue to be necessary, as it was in this case, for an administrative law judge to address the issue of coverage. See Sections 766.301(1)(d) and 766.304, Florida Statutes, which accord the administrative law judge exclusive jurisdiction to resolve the issue of coverage under the Plan.
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 Wilbur E. Brewton, Esquire Brewton, Plante & Plante, P.A.
225 South Adams Street, Suite 250 Tallahassee, Florida 32302-3068
Arthur J. England, Esquire Paul C. Savage, Esquire Greenberg & Traurig
1221 Brickell Avenue
Miami, Florida 33131-3224
William E. Kuntz, Esquire Smith, Hulsey & Busey Post Office Box 53315
Jacksonville, Florida 32201-3315
Mary Bland Love, Esquire Gobelman & Love
200 West Forsyth Street Suntrust Building, Suite 1700 Jacksonville, Florida 32202
C. Rufus Pennington, III, Esquire Margol & Pennington, P.A.
One Independent Drive, Suite 1700 Jacksonville, Florida 32202
Marijane Q. Boyd, M.D. 1370 13th Avenue, South Suite 118
Jacksonville, Florida 32250
Baptist Medical Center of the Beaches 1350 13th Avenue, South Jacksonville, Florida 32250
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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 03, 2001 | DOAH Final Order | Claim otherwise compensable under Plan barred where claimants recovered proceeds of settlement with birthing hospital. Also resolved that Administrative Law Judge does not have jurisdiction to resolve willful and wanton exception to Plan exclusivity. |
