STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRISTINA ELLEN GIROUX and )

JAYSON GIROUX, individually, ) and KRISTINA ELLEN GIROUX, as )

Personal Representative of the ) Estate of EMMA MAE GIROUX, a ) deceased minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

AMISUB (North Ridge Hospital, ) Inc.), d/b/a NORTH RIDGE )

MEDICAL CENTER, )

)

Intervenor. )

Case No. 02-1021N

)

FINAL ORDER

Pursuant to the parties' Pre-Hearing Stipulation, filed October 11, 2002, this case was heard on an agreed record.

APPEARANCES

For Petitioners: Scott S. Liberman, Esquire

Krupnick, Campbell, Malone, Roselli, Buser, Slama, Hancock, McNelis, Liberman & McKee

700 Southeast Third Avenue, Suite 100 Fort Lauderdale, Florida 33316-1186

For Respondent: David W. Black, Esquire

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

For Intervenor AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center:

John W. Mauro, Esquire Hal B. Anderson, Esquire

Billing, Cochran, Heath, Lyles & Mauro, P.A.

888 Southeast Third Avenue, Suite 301 Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

1. Whether Emma Mae Giroux, a deceased minor, suffered a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of her birth, as required for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).

2. If so, whether Petitioners' recovery, through settlement, with the nurse midwife, participating physician, and the participating physician's professional association, bars them from recovery under the Plan.

3. Whether the Division of Administrative Hearings 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 coverage and pursue such a civil suit.

PRELIMINARY STATEMENT

On March 11, 2002, Kristina Ellen Giroux and Jayson Giroux, individually, and Kristina Ellen Giroux, as Personal Representative of the Estate of Emma Mae Giroux, a deceased minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) to resolve whether their daughter's injury was compensable under the Plan. Pertinent to this case, apart from seeking a determination of compensability, the petition included the following allegations regarding a pending civil action:

2. In the matter of KRISTINA ELLEN GIROUX and JAYSON GIROUX, Individually and KRISTINA ELLEN GIROUX as Personal Representative of the ESTATE OF EMMA MAE GIROUX, a Deceased Minor, vs. RONALD M. TUTTELMAN, M.D., RONALD

M. TUTTELMAN, M.D., P.A., DONNA HAMILTON, CNM, BSN and AMISUB (NORTH RIDGE HOSPITAL), INC., d/b/a NORTH RIDGE MEDICAL CENTER, Case No. 00 019290 11, the Circuit [C]ourt ruled that whether NICA as a defense for NORTH RIDGE MEDICAL CENTER and DR. TUTTELMAN AND TUTTELMAN, M.D., P.A. is available for the personal injury claim was a matter for the Administrative Law Judge charged with determining exclusivity of NICA 1

1. Petitioners seek an order from the Division of Administrative Hearings that NICA is not the exclusive remedy for the personal injury claim predicated upon

   1. RONALD TUTTELMAN, M.D. did not participate in the delivering of the child and therefore, NICA is not available to the doctor or his professional association;

   2. That if it is determined to have participated in some manner, the failure to physically attend the delivery was willful and wanton, under the facts of this case, where there was strong history of pregnancy induced hypertension prior to delivery, the non-stress test which predicated the delivery by April 29, 1999, revealed evidence of a significantly elevated maternal blood pressure four days prior to birth. As a result of this willful and wanton conduct in failing to physically attend the delivery, NICA is not an available remedy;

      
      

   3. Alternatively, the conduct of RONALD M. TUTTELMAN, M.D. as alleged in Paragraph(b) was not at the time of delivery, and therefore, the facts of the delivery did not substantially contribute to the outcome of the child but rather was caused by the physician and hospital pre-delivery;

      
      

   4. As to NORTH RIDGE MEDICAL CENTER, with the knowledge of pregnancy induced hypertension, the conduct of the nurses during delivery at NORTH RIDGE MEDICAL CENTER was willful and wanton. The best evidence of the willful and wanton conduct by the nurse at NORTH RIDGE MEDICAL CENTER was the alteration of the records.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on March 14, 2002, and on April 10, 2002, NICA filed its response to the petition. In its response, NICA averred that it had concluded the claim was compensable; however, since "counsel for Petitioners feels that this case is not compensable due to the following issues which they have raised: non-coverage of the nurse/midwife, a question of willful and wanton due to the

absence of the physician . . ., as well as a question of whether notice was appropriate," NICA requested an evidentiary hearing to resolve the matter. Subsequently, by Orders of April 15, 2002, and April 25, 2002, Donna Hamilton, CNM, and AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center, respectively, were accorded leave to intervene.

On May 15, 2002, a pre-hearing conference was held, and by Notice of Hearing of the same date a hearing was scheduled for October 21-24, 2002, to resolve whether the infant suffered a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period. As for the other issues raised, by the petition and discussed at the pre-hearing conference, they were addressed by Order of May 16, 2002, as follows:

On May 15, 2002, a pre-hearing conference was held in the above-styled case.

Consistent with the conclusions announced at that hearing, it is

ORDERED that:

* * *

2. The issues to be resolved at hearing are whether obstetrical services were rendered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital and whether the infant suffered a birth-related neurological injury. Section 766.309(1), Florida Statutes. Here, unless

Petitioners subsequently announce otherwise, there is no dispute that the participating physician and the hospital complied with the notice provisions of the Plan. Finally, as for the issue of willful and wanton misconduct (Section 766.303(2), Florida Statutes), that issue is not a factual matter to be resolved by the administrative law judge, and that issue will be addressed as a matter of law in the final order.

* * *

5. A pre-hearing conference will be held by telephone at 9:30 a.m., October 3, 2002. Respondent will make the necessary arrangements for such conference. Prior thereto, the parties shall file the pre- hearing stipulation required by separate order.

Thereafter, by Order of June 20, 2002, Ronald M. Tuttelman, M.D., and Ronald M. Tuttelman, M.D., P.A., were accorded leave to intervene.

On September 30, 2002, Petitioners filed a Motion to Dismiss Claim Against Florida Birth-Related Neurological Injury Compensation Association, wherein they averred:

1. The Petitioners/Plaintiffs have amicably resolved the case against Ronald Tuttelman, M.D., Ronald Tuttelman, M.D., P.A., and Donna Hamilton, CNM.

   
   

2. The acceptance of settlement funds eliminates NICA compensability.

   
   

3. There is a pending fraud case in the Circuit Court against North Ridge Medical Center and as such, given the fact that the Petitioners/Plaintiffs have not resolved the case against North Ridge Medical Center, we respectfully request this court to dismiss

the pending NICA Petition remanding the remainder of the pending case back to the Circuit Court to allow the Petitioners/Plaintiffs to proceed under all available exceptions to the NICA Statutory framework.

Intervenor AMISUB, by response filed October 2, 2002, opposed Petitioners' motion. Notably, if compensable, and notwithstanding Petitioners' settlement with the nurse/midwife and physician, AMISUB might still be entitled to raise Plan immunity as a defense in a civil action, although not with regard to willful and wanton misconduct.2 Moreover, the Plan envisions that an election to pursue a civil claim for willful and wanton misconduct be made following an award. Section 766.303(2), Florida Statutes. Consequently, AMISUB's view that a hearing on compensability must be held was persuasive.

A pre-hearing conference was held on October 3, 2002, and the results of that conference were memorialized in an Order of October 4, 2002, as follows:

This cause came on for a pre-hearing conference on October 3, 2002. Also considered were Petitioners' Motion to Dismiss . . . . Consistent with the discussions had at hearing, it is

ORDERED that:

1. Petitioners' Motion to Dismiss is denied.

* * *

3. By 5:00 p.m., October 4, 2002, Petitioners shall advise all parties whether they are prepared to stipulate to the resolution of all issues requiring a factual resolution (compensability, the provision of obstetrical services by a participating physician at birth, notice, and settlement with the physician and nurse midwife).

Other issues raised by the petition, such as willful and wanton misconduct, will be addressed by the administrative law judge as a matter of law in the final order.

1. If Petitioners resolve to so stipulate, then the administrative law judge will be so notified in writing, and a joint pre-hearing stipulation resolving such issues shall be filed by October 11, 2002. If Petitioners resolve not to so stipulate, they will submit a proposed joint stipulation to all parties by October 8, 2002, and all discovery currently scheduled as well as the final hearing will proceed as scheduled.

   
   

2. While not discussed at hearing, given the settlement by the physician and nurse midwife with Petitioners it would be appropriate for them to withdraw from these proceedings. Failing withdrawal, their joinder in any stipulation would be appropriate, as would a hearing to address their standing to participate in these proceedings.

On October 11, 2002, Petitioners, Respondent, and Intervenor AMISUB filed a Pre-Hearing Stipulation, wherein they agreed to the resolution of this case on a stipulated record.

Subsequently, on October 17, 2002, a Notice of Withdrawal of Intervenor was filed by Donna Hamilton, CNM, and a Motion to Withdraw Motion to Intervene was filed by Ronald M. Tuttelman, M.D., and Ronald M. Tuttelman, M.D., P.A. The consequences of

the Pre-Hearing Stipulation, as well as the Notice of Withdrawal and Motion to Withdraw were addressed by Order of October 18, 2002, as follows:

This cause having come before the undersigned on the Pre-Hearing Stipulation, filed October 11, 2002, by Petitioners, Respondent, and Intervenor, AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center, and the Notice of Withdrawal of Intervenor, filed on behalf of Donna Hamilton, C.N.M, on October 17, 2002, and the Motion to Withdraw Motion to Intervene, filed on behalf of Ronald M. Tuttelman, M.D. and Ronald M. Tuttelman, M.D., P.A., on October 17, 2002, and the undersigned being fully advised, it is, therefore,

ORDERED that:

1. Given the notice filed on behalf of Donna Hamilton, C.N.M.; and the motion filed on behalf of Ronald M. Tuttelman, M.D. and Ronald M. Tuttelman, M.D., P.A., their withdrawal from these proceedings is approved and they are no longer parties to this case.

   
   

2. Consistent with the parties' agreement set forth in the Pre-Hearing Stipulation, filed on October 11, 2002, the administrative law judge will address the issues raised in this case based on the parties' Stipulation.

   
   

3. The hearing heretofore scheduled for October 21-24, 2002, is cancelled.

   
   

4. The parties, if so advised, are accorded

10 days from the date of this order to file proposed final orders.

Respondent elected to file a proposed final order, and it has been duly considered.

FINDINGS OF FACT

The parties' stipulation

1. By their Pre-Hearing Stipulation, filed October 11, 2002, the parties agreed, as follows:

   The parties, specifically the Petitioners, the Respondent, and Intervener, AMISUB (North Ridge Hospital, Inc.), d/b/a North Ridge Medical Center, and further to the Status Conference conducted on October 3, 2002, and in lieu of the ALJ conducting a trial of this matter, due stipulate and agree as to the following as a predicate for the ALJ's ruling on the issue of compensability of this claim, to wit:

   
   

   FACTUAL STIPULATIONS

   
   

   1. That the Petitioners are the legal representative of the deceased minor child.

      
      

   2. That Emma Mae Giroux was delivered at North Ridge Medical Center on May 3, 1999, and weighed in excess of 2500 grams.

      
      

   3. That Donna Hamilton was a certified nurse midwife who provided obstetrical services and was present at the birth of Emma Mae Giroux.

      
      

   4. That Ronald Tuttleman, M.D. was a participating physician in the NICA Plan for 1999.

      
      

   5. That Donna Hamilton acted under the direct supervision of Ronald Tuttleman, M.D. and that obstetrical services were therefore provided by a participating physician in the NICA Plan, including by virtue of

      Dr. Tuttleman ordering Pitocin for Kristina Giroux at approximately 12:30 p.m. on May 3, 1999.

   6. That Emma Mae Giroux sustained a "birth- related neurological injury" as defined by

      §766.302, Fla.Stat.

      
      

   7. That Emma Mae Giroux passed away on May 10, 1999.

      
      

   8. That proper notice in accordance with

§766.316, Fla.Stat., was provided by North Ridge Medical Center prior to delivery.

Although the issue of notice by

Dr. Tuttleman is moot, the Petitioners acknowledged that Dr. Tuttleman did provide notice to Kristina Giroux of his participation in the NICA Plan prior to delivery pursuant to §766.316, Fla.Stat.

LEGAL STIPULATIONS

1. That during the pendency of this action, the Petitioners unilaterally negotiated a settlement with the other interveners, specifically, Donna Hamilton, C.N.M. ("Hamilton") and Ronald M. Tuttleman, M.D. & Ronald M. Tuttleman, M.D., P.A. (Collectively "Tuttleman"), for the total sum of $350,000.00. The Petitioners having elected to receive this civil settlement from the Interveners, Hamilton and Tuttleman, acknowledge that the Petitioners may not receive any benefits from the Respondent under the NICA Plan, pursuant to

§766.301, et seq., including specifically pursuant to §766.303(2) & §766.304, Fla.Stat. The Petitioners do reserve the right to proceed against North Ridge Medical Center solely under the statutory exceptions based on theories of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, if and as applicable. North Ridge Medical Center, by entering into this Stipulation, does not waive any of its rights or immunities under the NICA Plan and does not stipulate to the effect of Petitioners' aforedescribed civil settlement.

EVIDENTIARY STIPULATIONS

1. The parties do further stipulate as follows in the event an Evidentiary Hearing is rendered unnecessary by this Stipulation:

   
   

   1. The medical records filed and attached to the Petition shall be admitted into evidence.

      
      

   2. The medical report of Donald Willis,

      M.D. dated April 2, 2002, and attached to NICA's Notice of Compensability and Request for Hearing, shall be admitted into evidence.

      
      

   3. There are no further medical records to be admitted into evidence in this administrative proceeding, and no depositions shall be admitted into evidence in this administrative proceeding.

      
      

   4. That the Administrative Law Judge shall enter a Final Order with his legal rulings based upon the Stipulated Facts set forth herein, and based upon any other matters appearing within the pleadings and records on file.

      
      

2. Consistent with the terms of the parties' stipulation, the medical records filed with DOAH on March 11, 2002 (marked Joint Exhibit 1) and the medical report of Donald Willis, M.D., filed with DOAH on April 10, 2002 (marked Joint Exhibit 2) were received into evidence.

   Coverage under the Plan

   
   

3. Pertinent to this case, coverage is afforded by the Plan when an infant suffers a "birth-related neurological injury," defined as an injury to the brain . . . 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." Section 766.302(2), Florida Statutes. See also Section 766.309(1)(a), Florida Statutes.

4. Here, the parties agree, and the proof is otherwise compelling, that Emma suffered a "birth-related neurological injury." Consequently, since obstetrical services were provided by a "participating physician" at birth, the claim qualifies for coverage under the Plan; however, given Petitioners' settlement with the nurse midwife and participating physician, and for reasons appearing more fully in the Conclusions of Law, Petitioners are foreclosed from pursuing an award under the

   Plan.

   
   

   Jurisdiction

   
   

   CONCLUSIONS OF LAW

   
   

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

6. The Florida Birth-Related Neurological Injury Compensation Plan was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for

   birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

7. The injured "infant, her or 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, 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.

8. 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.

9. 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.

10. 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.

    
    

11. 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 Emma suffered a "birth-related neurological injury," as that term is defined by the Plan. Consequently, the administrative law judge is required to make an award of compensation unless, as alleged by NICA, Petitioners are barred from pursuing an award by virtue of their settlement with the nurse midwife and the participating physician. See Sections 766.304 and 766.31(1), Florida Statutes.

    The statutory bar to recovery (Section 766.304, Florida Statutes)

    
    

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

    related neurological injury." Humana of Florida, Inc. v. McKaughan, supra, at page 855, and Section 766.301(2), Florida Statutes.

13. The Plan is a substitute, a "limited no-fault alternative," for common law rights and liabilities. Section 766.316, Florida Statutes. See also Section 766.303(2), Florida Statutes; Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974 (Fla. 1996). Regarding the exclusiveness of the remedy afforded by the Plan, Subsection 766.303(2), provides:

    1. The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, his personal representatives, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury; except that a civil action shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, proved 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.

       
       

14. With but two exceptions, the Plan forecloses any civil action against a NICA participant when the injury is of the type

    defined in Section 766.302(2), Florida Statutes. See Barden v. Haddox, 695 So. 2d 1271 (Fla. 5th DCA 1997). The first exception is prescribed by Subsection 766.303(2), which permits a civil action "where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property." Notably, such suit must be "filed prior and in lieu of payment of an award under ss.

    766.301-766.316." The second exception is based on an interpretation of Section 766.316, which provides:

    Notice to obstetrical patients of participation in the plan.--Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under

    s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan . . . .

    
    

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

    
    

    309 (Fla. 1977), the Florida Supreme Court observed that:

    
    

    . . . This language makes clear that the purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil

    remedies . . . .

    
    

    Consequently, the court concluded:

    
    

    . . . as a condition precedent to invoking the Florida Birth-Related Neurological Injury Compensation Plan as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery.

    
    

    Stated differently, where notice is not given, Plan immunity is not a defense to a civil action. See also Braniff v. Galen of Florida, Inc., 669 So. 2d 1051, 1053 (Fla. 1st DCA 1995)("The presence of absence of notice will neither advance nor 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 NICA exclusivity where the individual attempts to invoke a civil remedy.")

16. Apart from the foregoing exceptions, the Plan is designed to foreclose any civil action against a NICA participant when the injury is of the type defined in Section 766.302(2), Florida Statutes; however, the Plan "is not without defects." Central Florida Regional Hospital, Inc. v. Wagner, 656 So. 2d 491, 493 (Fla. 5th DCA 1995). Pertinent to this case, the Wagner court succinctly described the problem commonly associated with implementation of the Plan, as follows:

    . . . Claims under the act are commenced by a "claimant" who files a petition seeking compensation. The Division of

    Administrative Hearings of the Department of Management Services is charged with providing the administrative hearings for the participating health care providers and the claimant. § 766.305, Fla.Stat. (1993). Claimants are defined by section 766.302(3):

    
    

    1. "Claimant" means any person who files a claim pursuant to s. 766.305 for compensation for a birth-related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof.

    
    

    . . . In the instant case, the persons defined as claimants under the statute have taken the position that their infant's injuries do not qualify or they have elected not to make a claim under the act. The defendants disagree that the injuries do not qualify, but are unable to initiate administrative proceedings because they do not fit the statutory definition of claimant and no provision is made elsewhere for them to initiate proceedings under the act.

    
    

    Since the nature of the injuries causing the death of the plaintiffs' infant is disputed and apparently cannot be resolved without factual findings, and, since no claim as been filed with the Division, the circuit court cannot abate or dismiss the action brought by the plaintiffs without determining whether the injuries are neurological in nature. But, how must the circuit court proceed to determine this issue? The circuit court has denied the defendants' request for a pre-trial evidentiary hearing to determine the nature of the injuries. That denial leaves the issue to be resolved by the jury requested by the plaintiffs.

    * * *

    
    

    The trial court's denial of petitioners' motions is affirmed because we have found no authority for the proposition that the trial court lost or was required to relinquish jurisdiction to an administrative agency to resolve the dispute over the nature of the injuries.

    
    

    * * *

    
    

    ORDER ON MOTION FOR CERTIFICATION

    
    

    BY ORDER OF COURT:

    
    

    ORDERED that the motion to certify question as one of great public importance filed by David C. Mowere, et al., pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) is hereby granted and we certify the identical question presented in Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852 (Fla. 2d DCA 1995):

    
    

    DOES AN ADMINISTRATIVE HEARING OFFICE 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 OVERAGE 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?

    
    

    In Central Florida Regional Hospital, Inc. v. Wagner, 672 So. 2d

    
    

    34 (Fla. 1996), the court answered the question, as follows:

    "Since we have already answered the identical question in the negative in Florida Birth-Related Neurological Injury

    Compensation v. McKaughan, 668 So. 2d 974 (Fla. 1996), the district court decision is approved."

17. The seminal case of Humana of Florida, Inc. v.

    
    

    McKaughan, 652 So. 2d 852 (Fla. 2d DCA 1995), approved, Florida

    
    

    Birth-Related Neurological Injury Compensation Association v. McKaughan, supra, and its progeny Gilbert v. Florida Birth- Related Neurological Injury Compensation Association, 724 So. 2d 688 (Fla. 2d DCA 1999), precipitated the amendments to Sections

    766.301 and 766.304, Florida Statutes, at issue in this case, and discussed infra. Consequently, these cases, commonly referred to as the McKaughan litigation, provide insight to the Legislature's intent when it amended Sections 766.301 and 766.304.

18. Pertinent to this case, the history of the McKaughan litigation was described by the court in Gilbert, as follows:

    This litigation began in January 1992 when Jaimes McKaughan and Darlene McKaugan-Lack, Michael's parents, filed a medical malpractice action against William L. Capps, M.D., Kenneth Soloman, M.D., and their professional associations, and Humana of Florida, Inc., d/b/a Humana Women's Hospital Tampa. The suit alleged that the defendants' negligence caused Michael to suffer injuries at or near the time of his birth on May 19, 1989, which rendered him a quadriplegic with substantial mental impairment. Dr. Capps provided the

    obstetrical services during Michael's birth, and Dr. Soloman provided neonatal care subsequent to the birth. The

    defendants asserted, as affirmative defenses, that the suit was barred by virtue of the Plan's statutory provisions affording an exclusive administrative remedy for infants who sustain birth-related neurological injuries.

    
    

    The trial court stayed the action and directed the McKaughans to file a petition for benefits under the Plan. They did so, but alleged in their petition that Michael had not suffered a birth-related neurological injury as defined by the Plan. In that proceeding, the administrative law judge dismissed the petition, finding that

    
    

    it would be rather anomalous to accede, as suggested by the circuit court, and accept the petition, as filed, where the petitioners have the burden of demonstrating entitlement to benefits under the Plan, but propose to prove a negative: that they are not entitled to such benefits. Section 766.309(1)(a).

    
    

    The medical malpractice defendants, who had been granted leave to intervene in the administrative proceeding, together with the Florida Birth-Related Neurological Injury Compensation Association (NICA), appealed that decision to this court.

    
    

    In Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852 (Fla. 2d DCA 1995)("McKaughan I"), this court affirmed the dismissal, holding that the issue of the exclusive remedy of the Plan was the proper subject of litigation and determination in the circuit court as an affirmative defense in that action. We certified the issue to our supreme court. In Florida Birth-Related Neurological Injury Compensation Ass'n v.

    McKaughan, 668 So. 2d 974 (Fla. 1996) ("McKaughan II"), the supreme court approved our decision, holding that the Plan does not vest exclusive jurisdiction in an administrative hearing officer to determine if an injury suffered by a newborn infant is covered by the Plan when the Plan's provisions are raised as an affirmative defense to a medical malpractice action in the circuit court.

    
    

    The action in the circuit court then resumed, where Humana filed a motion to appoint a guardian ad litem for Michael. The motion alleged that a conflict of interest existed between Michael and his parents on the issue of whether he had suffered a birth-related neurological injury covered by the Plan. Richard Gilbert was

    appointed as the guardian ad litem on May 7, 1996. On May 16, 1996, he filed an administrative petition on Michael's

    behalf for Plan benefits. However, the claim was abated by order dated July 8, 1996, pending a Florida Supreme Court decision on the issue of pre-delivery notice of NICA participation.

    
    

    The civil action then proceeded towards a scheduled trial date of April 14, 1997.

    Prior to trial, a settlement was reached with Humana and Dr. Capps. During the trial, Dr. Soloman settled. There was no judicial determination of the defendants' affirmative defense.

    
    

    The stay on the guardian's administrative petition was lifted on July 30, 1997, and on August 12, 1997, the guardian advised the agency that he wished to proceed with his claim. NICA then filed its "Response to Petition and Motion for Final Summary Order" wherein it asserted that the guardian's claim was waived or otherwise barred by the settlement of the civil action. The administrative law judge ordered the parties to provide a stipulated record, which they

    did. In pertinent part, that stipulation provided:

    
    

    1. Michael was a born-alive infant at Humana Women's Hospital, a participant in the Plan.

       
       

    2. The physician providing the obstetrical services during Michael's birth was Dr. Capps, a participant in the Plan.

       
       

    3. At or hear the time of Michael's birth, he suffered a fracture of his cervical vertebra, a transected spinal cord, and other neurological injuries.

       
       

    4. Michael's parents instituted a medical malpractice action where the defendants asserted, as affirmative defenses, the claim was barred by the Plan's statutory provisions.

       
       

    5. The civil action was settled. The trial court dismissed the action with prejudice without a resolution of the defendants' affirmative defenses. The guardian participated in the settlement as guardian ad litem. The trial court did not make a judicial determination that Michael suffered a birth-related injury as defined by the Plan.

    
    

    The stipulation went on to identify the following disputed issues of fact:

    
    

    1. Whether Michael did in fact suffer a "birth-related neurological injury" as defined in section 766.302(2), Florida Statutes (Supp. 1988), so as to entitle him to benefits?

       
       

    2. If not barred by the settlement of the civil action, how much compensation is to be awarded?

    Thereafter, [on December 4, 1997] the administrative law judge entered his "Summary Final Order of Dismissal" determining that Michael's claim was barred by the doctrine of election of remedies and that to permit the petition to proceed would thwart the purpose of the Plan.

    
    

19. In Gilbert, the court resolved that a claimant could receive the proceeds of a settlement with the defendant physician and hospital in a civil suit and still pursue a claim for benefits under the Plan. The court expressed its reasoning as follows:

    The sole issue is whether the obtaining of benefits as a product of a civil action forecloses access to Plan benefits. The answer is yes if that action resulted in a factual determination that the infant was not a NICA baby. Conversely, if an administrative petition results in a determination that the infant is a NICA baby, a civil action is foreclosed. The remedies are mutually exclusive, but only upon a determination of whether the infant is a NICA baby. That is the core issue of both the civil action and the administrative petition. To maintain the civil action and avoid the exclusive remedy provisions of section 766.303(2), Florida Statutes (Supp. 1988), the McKaughans alleged that Michael was not a NICA baby. The resulting settlement of that action, although it may imply that assertion to be true, fell short of such a determination, by admission or otherwise. The issue remains open to determination, as if neither the civil action nor the administrative proceeding had been commenced.

    The court further noted that the facts of Gilbert did not fit within the law of election of remedies, and that the Legislature, at the time the Gilbert claim was filed, had not incorporated an election of remedies clause.3

20. In 1998, after the McKaughan decision, and while Gilbert was pending before the appellate court, the Legislature adopted Chapter 98-113, Laws of Florida, which amended Sections

    766.301 and 766.304, Florida Statutes. Chapter 98-113, Section

    
    

    6 provided that "[t]he amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of date of birth."

21. Pertinent to this case, the amendments (underlined) to Sections 766.301 and 766.304 were, as follows:

    766.301 Legislative findings and intent.--

    
    

    (1) The Legislature makes the following findings:

    
    

    * * *

    
    

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

    
    

    * * *

    
    

    766.304 Administrative law judge to determine claims.--The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge. If the

    administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s.

    766.303 An action may not be

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

    
    

22. Here, the claim for benefits was filed March 11, 2002.

    
    

    Consequently, the amendments apply to this case. Chapter 98- 113, Section 6, Laws of Florida, and O'Leary v. Florida Birth- Related Neurological Injury Compensation Association, 757 So. 2d 624 (Fla. 5th DCA 2000).

23. By the amendments to Sections 766.301 and 766.304, the Legislature reacted "adversely to the result reached in McKaughan," and mandated that coverage be resolved exclusively in the administrative forum. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, supra, at page 627. Additionally, by amending Section 766.304 to provide that

    "[a]n action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered," the Legislature evidenced its intent to adopt an election of remedies clause to avoid future claims such as those pursued in Gilbert. In all, by the amendments to the Plan, the Legislature evidenced its intention that "[t]he administrative law judge has exclusive jurisdiction to determine whether a claim . . . is compensable," that [n]o civil action may be brought . . . [or continued, if Plan exclusivity is raised as a defense] until the determinations under s. 766.309 have been resolved by the administrative law judge," and that if a claimant persists and "recovers or final judgment is entered" she or he may not pursue an award under the Plan.

24. Here, it must be resolved that the Petitioners, by reaching a settlement with the nurse midwife, the participating physician, and the participating physician's professional association have recovered, as that term is defined by Section 766.304, Florida Statutes, and have made an election of remedies, thereby choosing and receiving a civil recovery in lieu of recovery of benefits under the Plan. Accordingly, while the claim is otherwise compensable, Petitioners may not recover an award under the Plan.

    Willful and wanton conduct

    
    

25. Having resolved compensability, as well as the consequences of settlement, it remains to decide if, as contended by Petitioners and Intervenor AMISUB, DOAH must resolve whether "there is clear and convincing evidence of bad faith or malicious purpose or willful or malicious 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. Notably, Petitioners and Intervenor declined the opportunity to file proposed final orders, they have otherwise failed to articulate a rationale for their contention, and the Plan contains no apparent support for their position.

26. First, given the express provisions of the Plan, it is apparent that the issues to be resolved by the administrative law judge (apart from an occasional claim of election of remedies under Section 766.304 or a bar by the limitations period prescribed by Section 766.313) are limited to compensability, award, and notice. See Sections 766.309 and 766.31, Florida Statutes; Gugelmin v. Division of Administrative Hearings, 815 So. 2d 764 (Fla. 4th DCA 2002); 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., 793 So. 2d 999 (Fla. 3d DCA 2001). Second, it is evident that

resolution of a claim of wrongful conduct enjoys no nexus with the no-fault issues to be resolved by the administrative forum. Finally, since the language adopted by the Legislature clearly contemplates the filing of a civil suit ("before the award of the division becomes conclusive and binding"), where presumably the claimants (plaintiffs) will be required to demonstrate, by clear and convincing evidence, that the defendants are 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 forum to resolve that issue. 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."); 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.")

CONCLUSION

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

ORDERED that, given the provisions of Section 766.304, Florida Statutes, Petitioners may not pursue a claim under Sections 766.301-766.316, Florida Statutes, and the petition filed by Kristina Ellen Giroux and Jayson Giroux, individually, and Kristina Ellen Giroux, as Personal Representative of the Estate of Emma Mae Giroux, a deceased minor, is dismissed with prejudice.

DONE AND ORDERED this 5th day of November, 2002, 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 5th day of November, 2002.

ENDNOTES

1/ The court order, a copy of which was attached as Exhibit 1 to the petition, provided:

THIS CAUSE having come on before me upon the Defendant, AMISUB's (NORTH RIDGE HOSPITAL, INC.), d/b/a NORTH RIDGE MEDICAL CENTER

(hereinafter "NORTH RIDGE") Motion to Dismiss, and the joinder in that Motion by Defendants, RONALD M. TUTTELMAN, M.D., RONALD M. TUTTELMAN, M.D., P.A. and DONNA

HAMILTON, CNM, BSN, and the Court having heard argument of counsel, and having carefully reviewed the papers submitted by all parties, and being otherwise fully advised in the premises, it is therefore,

ORDERED and ADJUDGED as follows:

1. That this Court finds as matter of law that the Administrative Law Judge of the Division of Administrative Hearings has exclusive subject matter jurisdiction to

   determine whether or not this claim is compensable by the Florida Birth-Related Neurological Injury Compensation Plan (NICA). Therefore, NORTH RIDGE's Motion to Dismiss Count VI of Plaintiffs' Complaint is GRANTED, without prejudice, pending a determination by an Administrative Law Judge as to whether or not the claim is compensable as the Plaintiffs' exclusive remedy, pursuant to Florida Statute

   §766.304, Counts I and II with regard to Dr. Tuttelman and his professional association respectively, are dismissed without prejudice, pending a determination by an Administrative Law Judge as to whether or not the claim is compensable as the Plaintiffs' exclusive remedy, pursuant to Florida Statute §766.304.

   
   

2. The Motion to Dismiss filed on behalf of the Defendant, DONNA HAMILTON, CNM, BSN, is DENIED. This Court finds as a matter of law that the Defendant, HAMILTON, does not have standing to invoke NICA in that no assessment was paid to NICA by her or on her behalf, and the Court further finds as a matter of law that NICA coverage is not extended to her "vicariously" by virtue of her employment with Dr. Tuttelman. . . .

* * *

2/ 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.

3/ In Gilbert, at page 691, footnote 1, the court observed:

1. The Plan was first proposed by the 1987 Academic Task Force for Review of the Insurance and Tort Systems. See Galen of Fla., Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997). 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 (1987 Va. Acts Ch. 540). Id. In 1990, the Virginia plan was amended to include, in relevant part, the following provision in its exclusivity clause, § 38.2-5002:

D. Notwithstanding anything to the contrary in this section, a civil action arising out of or related to a birth-related neurological injury under this chapter, brought by an infant, . . . shall not be foreclosed against a nonparticipating physician or hospital, provided that (i) no participating physician or hospital shall be made a party to any such action or related action, and (ii) the commencement of any such action, regardless of its outcome, shall constitute an election of remedies, to the exclusion of any claim under this chapter. . . . 1990 Va. Acts Ch. 535 (emphasis added). In 1993, the Florida Legislature amended the Plan. See Ch. 93- 251, Laws of Fla. (1993). Among other changes, the legislature reduced the time to file a Plan petition from seven years to five years. However, the legislature did not incorporate an election of remedies clause like Virginia's statute.

In 1998, however, the legislature did amend section 766.304 to provide . . . [inter alia, that] [a]n action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered . . . .

As discussed infra, the amendments to Section 766.304 only applied to claims filed on or after July 1, 1998. Consequently, the amendments did not apply to and were not addressed in Gilbert.

COPIES FURNISHED:

(via Certified Mail)

Kenney Shipley, Acting Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32312

Scott S. Liberman, Esquire

Krupnick, Campbell, Malone, Roselli, Buser, Slama, Hancock, McNelis, Liberman & McKee

700 Southeast Third Avenue, Suite 100 Fort Lauderdale, Florida 33316-1186

Richard T. Woulfe, Esquire

Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A.

888 East Las Olas Boulevard, Fourth Floor Post Office Drawer 030340

Fort Lauderdale, Florida 33303-0340

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

John W. Mauro, Esquire Hal B. Anderson, Esquire

Billing, Cochran, Heath, Lyles & Mauro, P.A. 888 Southeast Third Avenue, Suite 301

Fort Lauderdale, Florida 33316

Frederick E. Hasty, III, Esquire Wicker, Smith, Tutan, O'Hara, McCoy,

Graham & Ford, P.A.

Grove Plaza Building, 5th Floor 2900 Southwest 28th Terrace Miami, Florida 33133

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.

MS CHARLENE WILLOUGHBY

AGENCY FOR HEALTH CARE ADMINISTRATION CONSUMER SERVICES UNIT

PO BOX 14000

TALLAHASSEE FL 32308

MARK CASTEEL GEN COUNSEL DEPARTMENT OF INSURANCE THE CAPITOL LL 26 TALLAHASSEE FL 32399-0300

Docket for Case No: 02-001021N

Orders for Case No: 02-001021N