STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY N. JOHNSON AND JEROMIE ) JOHNSON, INDIVIDUALLY AND AS ) PARENTS AND NEXT FRIENDS OF ) CAMERON JOHNSON, A MINOR CHILD, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 06-4554N

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on October 23, 2007, by video teleconference, with sites in Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioners: Thomas C. Saunders, Esquire

Saunders & McKendrick, P.A. Post Office Box 1279 Bartow, Florida 33831

For Respondent: Robert J. Grace, Jr., Esquire

Stiles, Taylor & Grace, P.A. Post Office Box 460

Tampa, Florida 33606

STATEMENT OF THE ISSUES

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

2. If so, whether Petitioners' recovery, through settlement of a civil suit for medical malpractice associated with Cameron's birth against the treating obstetricians, the obstetrical clinic, and the hospital, bars Petitioners from receiving an award of Plan benefits.

PRELIMINARY STATEMENT

On November 13, 2006, Mary N. Johnson and Jeromie Johnson, individually and as parents and next friends of Cameron Johnson, a minor child, filed a petition with the Division of Administrative Hearings (DOAH) to resolve whether Cameron suffered an injury under the Plan and, if so, for an award of benefits. In the petition, Petitioners expressed their view that "NICA does not apply but [they] have been Court ordered to apply for NICA pending Trial." Subsequently, Petitioners also expressed their opinion that the participating physicians failed to comply with the notice provisions of the Plan.

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the petition on November 14, 2006, and on February 26, 2007, following an extension of time within which to do so, NICA filed its response to the petition and gave notice that it was of the view the claim was compensable and offered to provide benefits as specified in Section 766.31, Florida Statutes. In the interim, Jeffrey M.

Barrett, M.D., James B. Mammel, M.D., and Watson Clinic, LLP, were granted leave to intervene.

Given the issues presented, a hearing was scheduled for July

25 and 26, 2007, to resolve whether the claim was compensable and whether the participating physicians complied with the notice provisions of the Plan. However, by letter of July 24, 2007, Petitioners' counsel gave notice that they accepted NICA's determination that Cameron qualified for coverage, and the hearing scheduled for July 25 and 26, 2007, was cancelled.

Following cancellation of the hearing, NICA learned that Petitioners had recently settled a civil suit for medical malpractice associated with Cameron's birth against the participating physicians and the obstetrical clinic, and thereafter learned that in November 2005, approximately one year prior to filing the petition in this case, Petitioners had settled a civil suit for medical malpractice associated with Cameron's birth against the hospital. Accordingly, NICA averred an award of benefits was barred, and a hearing was scheduled for October 23, 2007, to resolve whether the claim was compensable, whether the participating physicians complied with the notice provisions of the Plan, whether Petitioners recovered, through settlement with the hospital and participating physicians for damages associated with Cameron's birth and, if so, whether Petitioners were entitled to an award of Plan benefits. However, since the parties agreed in their Pre-Hearing Stipulation that the participating physicians complied with the notice provisions of the Plan, it was unnecessary to address that issue. Braniff

1. Galen of Florida, Inc., 669 So. 2d 1051, 1053 (Fla. 1st DCA 1995)("The presence or absence of notice will neither advance nor defeat the claim of an eligible NICA claimant who has decided to invoke the NICA remedy by making this filing; thus, there is no reason to inquire whether proper notice was given to an individual who has decided to proceed under NICA. Notice is only relevant to the defendants' assertion of NICA exclusively where the individual attempts to invoke a civil remedy.").

   On October 16, 2007, the parties filed their Pre-Hearing Stipulation, which provided:

   1. A concise statement of the nature of the controversy:

      
      

      Whether Petitioners recovered through settlement with Lakeland Regional Medical Center and with Intervenors, Jeffrey M. Barrett, M.D., and Watson Clinic, LLP damages related to the infant's birth, and if so, whether Petitioners are precluded from receiving an award of NICA Plan

      benefits, pursuant to Sections 766.303 and 766.304, F.S.

      
      

   2. A brief, general statement of each party's position:

1. Petitioner: Petitioners contend they are not barred from receiving NICA benefits.

   
   

2. Respondent: The infant sustained a compensable birth-related neurological injury, however, as a matter of law, the Petitioners' monetary recovery for damages related to the infant's birth from the Lakeland Regional Medical Center prior to filing the Petition for NICA benefits constitutes an election of remedies precluding an award of NICA benefits. In addition, Petitioners monetary recovery from and/or their agreement to release their claims related to the infant's birth against Jeffrey M. Barrett, M.D., and Watson Clinic, LLP in exchange for a monetary recovery also serves as a bar to an award of NICA benefits.

   
   

3. Intervenor. No position.

* * *

1. A concise statement of those issues of law which there is an agreement:

   
   

   It is agreed by all parties the child suffered a compensable "birth-related neurologically injury" as defined in

   §766.302(2), Florida Statutes.

   
   

   It is agreed by all parties that Jeffrey M. Barrett, M.D. and James B. Mammel, M.D., are NICA plan participating physicians and these physicians gave Petitioner, Mary Johnson, notice as contemplated by Section 766.316, Florida Statutes.

2. A concise statement of those issues of fact which remain to be litigated:

   
   

   No facts in dispute

   
   

3. A concise statement of those issues of law which remain for determination by the Administrative Law Judge:

Whether Petitioners' monetary recovery from Lakeland Regional Medical Center for damages related to the infant's birth and the release of claims related to the infant's birth against Jeffrey M. Barrett, M.D. and Watson Clinic in exchange for payment of money serve as a bar to an award of NICA Plan benefits, pursuant to Section 766.303 and 766.304, F.S.

The parties' stipulation also included an agreed list of exhibits (A-Z, and A-1, B-1, C-1, and D-1). Contemporaneously, the parties filed their Stipulation of Facts, and on October 19, 2007, the Exhibits for Pre-Hearing Stipulation (A-Z, and A-1, B- 1, C-1, and D-1) were filed with DOAH. By Order of

October 19, 2007, Intervenors' request to be dropped as parties to this proceeding was granted.

At the hearing held October 23, 2007, Exhibits A-Z, and A-1, B-1, C-1, and D-1 were received into evidence. No witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed November 8, 2007, and the parties were initially accorded until November 19, 2007, to file proposed orders. However, at Petitioners' request the

time for filing proposed orders was extended to November 26, 2007. The parties elected to file such proposals, and they have been duly-considered.

FINDINGS OF FACT

Findings related to compensability

1. Mary N. Johnson and Jerome Johnson are the natural parents of Cameron Johnson, a minor. Cameron was born a live infant on November 24, 2001, at Lakeland Regional Medical Center, a "hospital" as defined by Section 766.302(6), Florida Statutes, located in Lakeland, Florida, and his birth weight exceeded 2,500 grams.

2. Obstetrical services were provided during Cameron's birth by Jeffrey M. Barrett, M.D., and James B. Mammel, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. At the time, Doctors Barrett and Mammel were employees of Watson Clinic, LLP.

3. Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which renders the infant permanently and

   substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

4. Here, the parties have stipulated, and the proof is

   otherwise compelling, that Cameron suffered a severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, which rendered him permanently and substantially mentally and physically impaired. Consequently, the proof demonstrates that Cameron suffered a "birth-related neurological injury," and since obstetrical services were provided by a "participating physician" at birth, the claim is covered by the Plan. §§ 766.309(1) and 766.31(1), Fla. Stat.

   The civil suit

5. On October 20, 2004, Mary N. Johnson and

   Jeromie Johnson, individually and as parents and next friends of Cameron Johnson, a minor child, filed a complaint sounding in medical malpractice against Jeffrey M. Barrett, M.D., James B. Mammel, M.D., Watson Clinic, LLP, Unknown Nurses, c/o Lakeland Regional Medical Center, and Lakeland Regional Medical Center for acts or omissions during Mrs. Johnson's labor and delivery, which resulted in Cameron's brain injury and profound neurologic impairment, in the Circuit Court of the Tenth Judicial Circuit in and for Polk County, Florida, Case No. 2004CA-853 Section 11. (Exhibit B).

   The settlement with Lakeland Regional Medical Center

6. A settlement was reached in the civil suit with Lakeland Regional Medical Center for an undisclosed amount in excess of

   $25,000. (Stipulation of Facts, para. 15). That settlement was approved by court order of November 10, 2005. (Stipulation of Facts, para. 14; Exhibit E).

7. The General Release and Settlement Agreement executed by Petitioners' in favor of Lakeland Regional Medical Center on November 21, 2005, provided in pertinent part:

   1. For and in consideration of [amount redacted] the Releasing Parties [Petitioners] . . . release, acquit and forever discharge the Released Party [Lakeland Regional Medical Center] . . . from any and all claims, actions, causes of action, demands, obligations, liens, rights, damages, costs, loss of service, expense and/or compensation, of any nature whatsoever which the Releasing Party now has or which may hereafter accrue to the Releasing Party on account of, or in any way growing out of, any and all known or unknown, foreseen and unforeseen, injuries and/or damages and the consequences thereof, including wrongful death, resulting from the incident which occurred during Mary Johnson's admission of November 23, 2001 at Lakeland Regional Medical Center, and which has resulted in a claim and/or lawsuit for physical injuries and damages and being brought by the Releasing Parties against the Released Party, as more fully described in the Complaint styled Mary N. Johnson and Jeromie Johnson, individually and as Parent and Next Friends of Cameron Johnson, a minor child v. Jeffrey M. Barrett, M.D., James B. Mammell, M.D., Watson Clinic LLP, Unknown Nurses c/o Lakeland Regional Medical Center, Inc., a Florida Corporation and Lakeland Regional Medical Center, Inc., a Florida Corporation, filed in the Court of the Tenth Judicial Circuit, in and for Polk County, Florida being Case Number 2004CA-853.

      
      

   2. Furthermore, notwithstanding any of the foregoing provisions of this Release, it is expressly understood and agreed that nothing herein shall be construed to release, remise, or discharge anyone other than the specific parties named in this Release for this specific incident described. No other

      medical malpractice claim or NICA claim, which may stem or flow from the injuries suffered in the incident described herein is released. This Release is limited to the parties disclosed herein and the parties expressly deny that this Release is intended to release any other parties beyond the scope of this incident or document. It is the specific intent of the parties not to release Jeffrey M. Barrett, M.D., James B. Mammell, M.D., or Watson Clinic, LLP. Nothing contained herein is intended by the parties to his General Release and Settlement Agreement to be an election of remedies or release of any NICA claim or medical malpractice claim that the Releasing Parties may have as a result of the incidents surrounding the birth of the minor child, Cameron Johnson, other than a release of the NICA claim Cameron Johnson may have against the Released Parties. Specifically, the parties hereto acknowledge that the NICA claim, if any, of Cameron Johnson against Drs. Mammell, Barrett and the Watson Clinic LLP shall survive the execution of this General Release and Settlement Agreement.

      
      

      (Exhibit F). Thereafter, given the consummation of the settlement agreement, and on the parties' joint stipulation, the court dismissed the case against Lakeland Regional Medical Center with prejudice, by order of January 18, 2006. (Exhibit L).

      However, the case remained pending against Doctors Barrett and Mammel, and Watson Clinic, LLP.

      The claim for NICA benefits and settlement with Dr. Barrett and Watson Clinic, LLP

8. After an order abating the civil suit against the remaining defendants was issued, Petitioners filed the subject Petition for Benefits on November 13, 2006, to resolve whether the claim was compensable and, if so, for an award. The petition

   included the statement that in Petitioners' view "NICA does not apply, but [they] have been Court ordered to apply for NICA pending Trial." However, Petitioners' recovery in the civil action against Lakeland Regional Medical Center was not disclosed. (Stipulation of Facts, para. 18, 19, and 20; Exhibit G).

9. By letter dated February 26, 2007, NICA advised the parties that it agreed Cameron suffered a birth-related neurological injury, and that it was prepared to provide benefits as specified in Section 766.31, Florida Statutes. (Exhibit H). However, Petitioners persisted in their view that the claim was not compensable, and also advanced the view that the participating physicians failed to comply with the notice provisions of the Plan. Consequently, a hearing was scheduled for July 25 and 26, 2007, to address the issues of compensability and notice, and NICA's proposal to accept the claim for compensation was never presented to the administrative law judge for approval. § 766.305(7), Fla. Stat. ("Any claim which the association determines to be compensable may be accepted for compensation provided that the acceptance is approved by the administrative law judge to whom the claim for compensation is assigned.").

10. The parties' Stipulation of Facts describes the events

    that ensued shortly before hearing, as follows:

    1. On July 13, 2007, the office of counsel for Intervenors advised the office of counsel for Respondent that they had settled with Petitioners.

    2. On July 13, 2007, the office of counsel for Intervenors advised the office of counsel for Respondent that only the civil action had been resolved, but the NICA claim was still proceeding.

       
       

    3. By letter dated July 13, 2007, both counsel for Intervenors and Petitioner's counsel advised the Court [ALJ] and counsel for NICA that neither the civil action nor the NICA action had been resolved. A copy of Petitioners' and Intervenors' counsels' letters dated July 13, 2007 are [marked] as Exhibit "J".

    
    

    * * *

    
    

    1. On July 23, 2007, Petitioners placed a proceeding on the Circuit Court calendar to approve a proposed settlement of the civil court matter against the remaining defendants. A copy of the Circuit Court docket is [marked] as Exhibit "L".

       
       

    2. By letter dated July 24, 2007, counsel for Petitioners advised the court [ALJ] and all parties that they had withdrawn their objection to NICA's applicability. A copy of this letter is [marked] as Exhibit "M".

    
    

    * * *

    
    

    38. By letter [dated] July 24, 2007, counsel for Respondent advised the Court [ALJ] and all parties that consistent with Petitioners' Counsel's letter dated July 24, 2007, NICA had accepted the claim as compensable and was prepared to provide benefits consistent with Ms. Shipley's February 2007 letter. This letter also advised the court [ALJ] that the stipulation would be held pending the resolution of Petitioners' Counsel's fee and costs for inclusion in the stipulation. A copy of the letter is [marked] as Exhibit "N".

    
    

    Under the circumstances, the hearing scheduled for July 25 and

    26, 2007, was cancelled.

11. While the stipulation was held pending resolution of issues related to attorney's fees and costs, Petitioners, without notice to Respondent, resolved the civil action for an undisclosed sum against Doctors Barrett and Mammel, and the Watson Clinic, LLP. The parties' Stipulation of Facts describes those events, as follows:

    1. On July 25, 2007, Petitioner filed a Notice of Voluntary Dismissal with prejudice in the Circuit Court proceeding against James B. Mammel, M.D. A copy of the Notice of Voluntary Dismissal is [marked] as Exhibit "O".

       
       

    2. By order dated July 25, 2007, the Circuit Court approved the settlement of the action against the remaining defendants

    [Dr. Barrett and Watson Clinic, LLP]. A copy of the Order approving the settlement is [marked] as Exhibit "P".

    
    

    * * *

    
    

    42. On July 26, 2007, Petitioners executed General Releases and Settlement Agreements in favor of the remaining defendants in the Circuit Court proceeding. A copy of the General Release and Settlement Agreement is [marked] as Exhibit "R". (Settlement amount is redacted).

    
    

12. The Release executed by Petitioners on July 26, 2007, provided in part:

    FOR THE CONSIDERATION of [amount redacted]

    . . . and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned [Petitioners] . . . do hereby release and forever discharge: JEFFREY M. BARRETT, M.D., WATSON CLINIC LLP and TIG

    INSURANCE COMPANY, jointly and severally,

    . . . from any and all claims, demands, damages, costs, loss of services, expenses, expense and compensation, actions, causes of action, or suits of whatsoever kind or nature, whether arising at law or in equity, which the undersigned may have had, may now have, or may hereafter have against the said Releasees because of matters, causes, happenings or things occurring prior to the date of this Release, including any and all damages of any kind, known or unknown, or to result hereafter from including but not limited to, any and all treatment or care of MARY N. JOHNSON by JEFFREY M. BARRETT, M.D.

    and WATSON CLINIC LLP, and all of their agents, employees, shareholders, partners and associates thereof; and including but not limited to those matters that are the subject of the following described lawsuit: Mary N. Johnson and Jeromie Johnson, individually and as parents and next friends of Cameron Johnson, a minor child, Plaintiffs, vs. Jeffrey M. Barrett, M.D., James B. Mammel, M.D., Watson Clinic LLP, Unknown Nurses c/o Lakeland Regional Medical Center, Inc., a Florida corporation, and Lakeland Regional Medical Center, Inc., a Florida corporation, Defendants, Case No.

    2004-CA-853, filed in Circuit Court in and for Polk County, Florida . . . .

    
    

    * * *

    
    

    Nothing herein shall be construed as to operate as a waiver or release or abandonment of any claims or rights the undersigned may have as to NICA benefits for the undersigned. More specifically, the parties agree that Mary Johnson and

    Jeromie Johnson, on behalf of their minor child, Cameron Johnson, and on their individual behalf, have been granted the benefits of NICA pursuant to Florida Law. A copy of the letter providing such benefits is attached hereto and incorporated herein by reference.

    
    

    Despite acceptance by NICA, Mary Johnson and Jeromie Johnson, individually and as parents of Cameron Johnson, have contended that such benefits from NICA are not applicable to the claim raised. Releasees have contended that NICA benefits are the sole source of compensation available to Releasors.

    
    

    Both Releasors and Releasees acknowledge and agree that the issue of whether or not NICA benefits are the sole remedy of Releasors in this case is disputed between them.

    Further, both Releasors and Releasees agree that, regardless of whether the NICA benefits provide an exclusive remedy or not for the claims at issue between them, Releasees are voluntarily providing to the Releasors the monetary considerations set forth above.

    
    

    Releasees agree that they shall never contend that acceptance of Releasors by NICA or payment of NICA benefits to Releasors preclude payment of the sums mentioned above and Releasees agree that such monetary considerations shall be paid to Releasors in addition to any NICA benefits provided to Releasors.

    
    

    Releasees understand that they have the right to contend that, if NICA applies, no monies could be owed to the Releasors above and beyond NICA benefits. Because of reasons personal to Releasees, however, Releasees are knowingly and with the advice of independent counsel available to them, forever waiving the right to make any such contentions. Releasees are providing the monetary sums set forth above, despite denying the merits of Releasors' claims, in addition to NICA benefits freely, voluntarily and knowlingly.

    
    

    (Exhibit R).

13. The parties' Stipulation of Facts chronicles subsequent

    events, as follows:

    1. On July 31, 2007, counsel for NICA sent to counsel for Petitioners and Intervenors via email a proposed Joint Stipulation stipulating to the compensability of the Petition for benefits. The Joint Stipulation contained affirmative representations by Petitioners, including that they had not received a recovery under a settlement or final judgment in a civil action against any person or entity directly involved with the labor, delivery or immediate post delivery resuscitation with respect to the "injury" sustained by Cameron Johnson. (A copy of the Stipulation is [marked] as Exhibit "S").

       
       

    2. On August 1, 2007, counsel for Petitioners and Intervenors advised counsel for Respondent that the Petitioners settled the medical malpractice action against

       Drs. Mammel and Barrett and the Watson Clinic.

       
       

    3. On August 1, 2007, counsel for Petitioners and Intervenors did not advise counsel for Respondent that Petitioners had settled the medical malpractice action against Lakeland Regional Medical Center.

       
       

    4. By letter dated August 2, 2007, counsel for Respondent advised counsel for Petitioners and Intervenors that pursuant to Section 766.304, Florida Statutes, the tort recovery precluded an award of benefits and advised NICA was unable to pay benefits in this case. A copy of the letter is [marked] as Exhibit "T".

    
    

14. Notably, prior to August 1, 2007, NICA was not shown to have had any knowledge of any settlements in the civil action, or to have been a party or participant in that proceeding.

    CONCLUSIONS OF LAW

    Jurisdiction

    
    

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

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

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

       judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s.

       766.303(2).

       
       

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

    
    

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

    obstetrical services were delivered by a participating physician at the birth." § 766.31(1), Fla. Stat.

17. "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 for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

    
    

18. Here, it has been established that Doctors Barrett and Mammel, the physicians who provided obstetrical services at Cameron's birth, were "participating physician[s]" and that Cameron suffered a "birth-related neurological injury." Consequently, the claim is covered by the Plan, and the administrative law judge is required to make an award of compensation unless, as alleged by NICA, Petitioners are barred from pursuing an award because they recovered damages, through settlement of a civil action against Lakeland Regional Medical Center, Dr. Barrett, Dr. Mammel, and Watson Clinic, LLP, for medical malpractice associated with Cameron's birth.

    §§ 766.304, 766.309, and 766.31, Fla. Stat.

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

    
    

19. The Florida Birth-Related Neurological Injury Compensation Plan was enacted by the Legislature to address "a perceived medical malpractice insurance 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), approved, Florida Birth-Related Neurological Injury Compensation

    Association v. McKaughan, 668 So. 2d 974 (Fla. 1996);

    
    

    § 766.301(1), Fla. Stat. As enacted, the Plan "establishes an administrative system that provides compensation on a no-fault basis for an infant who suffers a narrowly defined birth-related neurological injury." McKaughan, 652 So. 2d at 855;

    § 766.301(2), Fla. Stat.

    
    

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

    Birth-Related Neurological Injury Compensation Association, 842 So. 2d 148, 151 (Fla. 5th DCA 2003 ("In its current form, [the Plan] provides exclusive no-fault benefits to eligible claimants in lieu of the claimants' traditional common law tort rights."). Pertinent to this case, Subsection 766.303(2),1 provides:

    (2) The rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other

    rights and remedies of such infant, his personal representatives, parents, dependents, and next of kin, at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs, arising out of or related to a medical malpractice claim with respect to such injury; except that a civil action shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311.

    
    

21. Effective July 1, 1998, the Legislature adopted Chapter 98-113, Laws of Florida, which amended Sections 766.301 and 766.304, Florida Statutes.2 Pertinent to this case, the amendments to Sections 766.301 and 766.304, Florida Statutes, were, as follows:

    766.301 Legislative findings and intent.--

    
    

    1. The Legislature makes the following findings:

       
       

       * * *

       
       

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

       
       

       * * *

       766.304 Administrative law judge to determine claims.--The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303 An action may not be

       brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered [3]

       
       

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

       
       

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

    Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000). Additionally, by amending Section 766.304, Florida Statutes, to provide that "[a]n action may not be brought under ss. 766.301-766.316 if the claimant

    recovers or final judgment is entered," the Legislature evidenced its intent to adopt an election of remedies clause to avoid future claims such as those pursued in Gilbert v. Florida

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

    Injury Compensation Association, 842 So. 2d 148, 152 (Fla. 5th DCA 2003). In all, by the amendments to the Plan, the Legislature evidenced its intention that "[t]he administrative law judge has exclusive jurisdiction to determine whether a claim . . . is compensable," that "[n]o civil action may be brought . . . [or continued, if Plan exclusivity is raised as a defense] until the determinations under s. 766.309 have been resolved by the administrative law judge," and that if a claimant persists and "recovers or final judgment is entered," she or he may not pursue an award under the Plan. Gugelmin v. Florida Birth-Related Neurological Injury Compensation

    Association, 882 So. 2d 517, 520 (Fla. 4th DCA 2004)("Following the 1998 amendments to NICA, it is clear that a plaintiff's acceptance of a civil settlement bars a claim for NICA benefits."); Romine, 842 So. 2d at 151 ("As it now stands, a

    claimant cannot assert a NICA claim and make a civil recovery.").

23. Here, the proof demonstrated that Petitioners received a monetary recovery from Lakeland Regional Medical Center,

    Dr. Barrett, and Watson Clinic, LLP, persons or entities directly involved in the labor, delivery or immediate postdelivery resuscitation period, for injuries associated with Cameron's birth. Therefore, Petitioners have "recovered," as that word is commonly understood, and they are not entitled to an award of Plan benefits. American Bankers Life Assurance

    Company of Florida v. Williams, 212 So. 2d 777, 778 (Fla. 1st DCA 1968)("Words of common usage should be construed in their plain and ordinary sense."). See Holly v. Auld, 450 So. 2d 217,

    219 (Fla. 1984)("When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.").

24. In reaching the foregoing conclusion, various arguments Petitioners advanced at hearing and in their proposed final order to support a contrary conclusion have not been overlooked. Those arguments included Petitioners' contention that the administrative law judge lacked jurisdiction to resolve whether their settlement barred an award of benefits, that the

    settlement with the participating physician and clinic was a "voluntary payment" for damages not otherwise covered by the Plan, and that since Petitioners dismissed their suit against Dr. Mammel and settled with Dr. Barrett and Watson Clinic, LLP, after NICA agreed to accept the claim, NICA was estopped to contest an award. For reasons that follow, Petitioners' contentions were found unpersuasive.

25. When, as here, the administrative law judge has resolved that a claim is compensable, she or he is required to make an award of compensation. § 766.31(1), Fla. Stat. ("Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation . . . for such injury . . ."). However, a claimant's acceptance of a civil settlement bars a claim for NICA benefits. § 766.304, Fla. Stat. ("An action may not be brought under ss. 766.301-

    766.316 if the claimant recovers or final judgment is entered."). See also, Romine, supra; Gugelmin, supra.

26. The provisions of Section 766.31(1), Florida Statutes, which govern an award and Section 766.304, Florida Statutes, which includes an election of remedies clause, must be read in pari marteria, and harmonized, to give effect to the Legislature's intention. Forsythe v. Longboat Key Beach Erosion

    Control District, 604 So. 2d 452, 455 (Fla. 1992)("It is axiomatic that all parts of a statute must be read together in order to achieve a consistent whole . . . . Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another."); Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation District, 274 So. 2d 522, 524 (Fla. 1973)("[A] statute should be construed and applied so as to give effect to the evident legislative intent, even if it varies from the literal meaning of the statute . . . . Legislative intent should be gathered from consideration of the statute as a whole rather than from any one part thereof."); Weitzel v. State of Florida, 306 So. 2d 188, 192 (Fla. 1st DCA 1975)("It is fundamental that words, phrases, clauses, sentences and paragraphs of a statute may not be construed in isolation, but that on the contrary a statute must be construed in its entirety."). So read, the administrative law judge must necessarily consider a claimant's acceptance of a civil settlement when resolving what award, if any, should be made.

27. Consequently, the administrative law judge has jurisdiction to decide whether a petitioners' recovery, through settlement of a civil suit, bars an award of Plan benefits. See Gugelmin, 882 So. 2d 520 ("Following the 1998 amendments to NICA, it is clear that a plaintiff's acceptance of a civil

    settlement bars a claim for NICA benefits."); Romine, 842 So. 2d

    
    

    151 ("As it now stands, a claimant cannot assert a NICA claim and make a civil recovery.").

28. As for Petitioners' argument that the settlement with the participating physicians and clinic was a "voluntary payment" for damages not otherwise recoverable under the Plan, it is noted that the rights and remedies granted by the Plan "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." § 766.303(2), Fla. Stat.

    Consequently, a claimant may not receive an award of benefits when she or he has recovered in a civil suit, whether or not the items or damages she recovered were available under the Plan.

    Romine, 842 So. 2d at 151 ("The right to receive NICA compensation is intended to be a substitute for common law rights which would otherwise be available.").

29. Finally, Petitioners' claim of equitable estoppel lacks merit for a number of reasons. First, from the language of the releases the Petitioners executed in the civil suit, it is evident they knew settlement posed a serious question to

their right to recover Plan benefits. Nevertheless, Petitioners chose to conceal their settlements from NICA, rather than forthrightly present the issue for adjudication. Petitioners were not misled, but were misleading. Moreover, the settlement with the hospital alone, and for which no claim of estoppel was advanced, precludes an award. Finally, Petitioners knew or should have known that NICA's proposal to accept the claim required the approval of the administrative law judge.

§ 766.305(7)(Fla. Stat.)("Any claim which the association determines to be compensable may be accepted for compensation provided that the acceptance is approved by the administrative law judge to whom the claim for compensation is assigned.") Absent approval, Petitioners acted at their peril.

CONCLUSION

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

ORDERED that the claim for compensation filed by Mary N. Johnson and Jeromie Johnson, individually and as parents and next best friends of Cameron Johnson, a minor child, qualifies for coverage under the Plan; however, given Petitioners' recovery from Lakeland Regional Medical Center, Dr. Barrett, and Watson Clinic, LLP, they may not pursue or recover an award of Plan benefits, and the petition is dismissed with prejudice.

DONE AND ORDERED this 9th day of January, 2008, in Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 2008.

ENDNOTES

1/ In 2003, the Legislature amended Section 766.303(2), Florida Statutes, to read, as follows:

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, 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 negligence 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 conclusion and binding as provided for in s. 766.311.

Ch. 2003-416, § 74, Laws of Fla. However, the Legislature expressly provided that "the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act." Ch. 2003-416, § 86, Laws of Fla.

Here, Petitioners' notice of intent to initiate litigation was mailed prior to the September 15, 2003, effective date of the act. (Stipulation of Facts, para. 9, Transcript (Tr.), pages 6 and 7). Consequently, the provisions of Section 766.303(2), Florida Statutes, as they existed prior to the 2003 amendments apply in this case.

2/ As for the effective date of the amendments, Chapter 98-113, Section 6, Laws of Florida, provided that "[t]he amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of date of birth." However, in Romine v. Florida Birth-Related Neurological Injury Compensation Association, 842

So. 2d 148 (Fla. 5th DCA 2003), the court resolved that retroactive application of the amendment to a child born prior to its effective date, to preclude a NICA claim when the claimant made a civil recovery (through settlement of a civil suit), was not constitutionally permissible. Here, the child was born November 24, 2001, and the claim was filed November 13, 2006. Consequently, the amendments apply to this case.

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

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, or if the claimant accepts an award issued under s. 766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303. If it is determined that a claim filed under this act is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law. The findings of fact and conclusions of law of the administrative law judge shall not be admissible in any subsequent proceeding; however, the sworn testimony of any person and the exhibits introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An award action may not be made

or paid brought under ss. 766.301-766.316 if the claimant recovers under a settlement or a final judgment is entered in a civil action. The division may adopt rules to promote the efficient administration of, and to minimize the cost associated with, the prosecution of claims.

Ch. 2003-416, § 75, Laws of Fla. However, as previously noted, the Legislature expressly provided that the changes to Chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this Act." Ch. 2003-416, § 86, Laws of Fla. Here, Petitioners' notice of intent to initiate litigation was mailed prior to the effective date of the act and the provisions of Section 766.304, Florida Statutes, as they existed prior to the amendments apply in this case.

COPIES FURNISHED:

(Via Certified Mail)

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

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

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

(Certified Mail No. 7005 1820 0002 9840 8981)

Jeffrey Barrett, M.D.

1600 Lakeland Hills Boulevard Lakeland, Florida 33805

(Certified Mail No. 7005 1820 0002 9840 8998)

Lakeland Regional Medical Center 1324 Lakeland Hills Boulevard Lakeland, Florida 33804

(Certified Mail No. 7005 1820 0002 9840 9001)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v.

Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 06-004554N

Orders for Case No: 06-004554N