00-003823N Sandra Nap Britt And Frank Britt, On Behalf Of And As Parents And Natural Guardians Of David Britt vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, July 31, 2002.

Summary: Petitioners` motion to amend final order and/or for rehearing denied because Petitioners acknowledged newly discovered evidence would not alter the conclusion that the infant had suffered a birth-related neurological injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA NAP BRITT AND FRANK )

BRITT, as parents and natural )

guardians of DAVID BRITT, a )

minor, )

)

Petitioners, )

)

vs. ) Case No. 00 - 3823N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

FLORIDA BOARD OF REGENTS and )

TAMPA GENERAL HOSPITAL, )

)

Intervenors. )

)

FINAL ORDER DENYING PETITIONERS' MOTION TO

AMEND FINAL ORDER AN D/OR FOR REHEARING

On July 22, 2002, the Division of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a hearing

in the above - styled case to address Petitioners' Motion to Amend

Final Order and/or for Rehearing.

APPEARANCES

For P etitioners: Roland J. Lamb, Esquire

Hahn, Morgan & Lamb

2701 North Rocky Point Drive, Suite 410

Tampa, Florida 33601

For Respondent: Kenneth J. Plante, Esquire

Brewton, Plante & Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

For Intervenor Florida Board of Regents:

Michael N. Brown, Esquire

Allen Dell, P.A.

101 East Kennedy Boulevard, Suite 1240

Post Office Box 2111

Tampa, Florida 33602

For Intervenor Tampa General Hospital:

David S. Nelson, Es quire

Smith & Fuller, P.A.

Post Office Box 3288

Tampa, Florida 33601

STATEMENT OF THE CASE

1. On August 14, 2001, a Final Order was entered in the

above - styled case which resolved that D avid Britt, a minor, had

suffered a "birth - related neurological injury," as defined by the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan). Pertinent to this case, "birth - related neurological

injury" is defined by Section 766.302(2), Fl orida Statutes, to

mean:

. . . injury to the brain . . . of a live

infant weighing at least 2,500 grams at birth

caused by oxygen deprivation . . . occurring

in the course of labor, delivery, or

resuscitation in the immediate post - delivery

period in a hosp ital , which renders the

infant permanently and substantially mentally

and physically impaired . . . . (Emphasis

added)

2. The Final Order was appealed by the Florida Birth -

Related Neurological Injury Compensation Association (NICA), to

the District Cou rt of Appeal, Second District, State of Florida.

3. During the pendency of the appeal, Petitioners/Appellees

filed what they termed a Notice of Request for Alternative

Relief. That notice read, as follows:

Appellees, SANDRA NAP BRITT and FRANK BRITT,

as parents and natural guardians of DAVID

BRITT, a minor, by and through their

undersigned attorneys, hereby notice this

Court of their Request for Alternative Relief

and, as grounds therefor, state as follows:

1. On September 1, 1999, Appellees, SANDRA

NA P BRITT and FRANK BRITT, filed a Complaint

against Tampa General Hospital and T he

Florida Board of Regents, alleging medical

negligence during and surrounding the birth

of their son, David Britt, which negligence

resulted in permanent and serious injuries to

David Britt.

2. The Defendants affirmatively defended

against Plaintiffs' Complaint by alleging

NICA exclusivity and immunity. As a result

of Defendants' affirmative defense, the

Britt's civil action was abated pending a

determination by the Administ rative Law Judge

in the Division of Administrative Hearings as

to the applicability of NICA to the claim.

3. Pursuant to the Court's Order of

Abatement, the Britts filed a Petition with

the Division of Administrative Hearings on

September 14, 2000, reque sting a

determination on the issue of NICA

applicability. In particular, the Appellees

challenged the Defendants' affirmative

defense in the civil action by contending

that appropriate notice under Section

766.316, Florida Statutes , had not been

provide d to the Appellees.

4. On November 8, 2000, The Florida Board of

Regents and Tampa General Hospital were

accorded leave to intervene in the

Administrative proceeding.

5. On June 23, 2001 [sic], 1 an evidentiary

hearing was held to resolve whether the

he alth care providers complied with the

notice provisions of the Plan. Both The

Florida Board of Regents and Tampa General

Hospital were represented by counsel at the

hearing and participated in the hearing in

order to present their position that they had

c omplied with the notice provisions of the

Plan.

6. At the hearing, based upon the totality

of the information provided to the Appellees

through June 25, 2001, the Appellees

stipulated that David suffered "a birth -

related neurological injury" as defined b y

the Plan. . . . To so stipulate, the

injuries suffered by David Britt must have

been "injury to the brain or spinal cord

. . . caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery or resuscitation in the

immed iate post - delivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired." Section 766.302(2), Florida

Statutes .

7. On August 14, 2001, Administrative Law

Judge William J. Kendrick entered a Final

Order finding that proper notice had not been

given to the Britts and, therefore, the

Britts could elect to pursue their civil

action or accept NICA benefits. The Britts

elected to continue with the pursuit of their

civil action.

8. As a result of the Administrative Law

Judge's Final Order and the Britts' election,

the Circuit Court lifted the abatement of the

civil action, and discovery was permitted to

proceed.

9. On October 31, 2001, Plaintiffs served

Interrogatories upon the Defendants in the

civi l action. One of the interrogatories

requested the Defendants to: "Describe in

detail how the incident described in the

complaint happened, including all actions

taken by you to prevent the incident".

Defendant, Florida Health Sciences, Inc.,

d/b/a Tamp a General Hospital's answer to

interrogatory #3 stated that:

. . . a decision was made by the physicians

employed by co - defendant University of South

Florida to expedite delivery via cesarean

section. The minor child, David Britt, was

delivered via C - sec tion. The initial Apgar

scores were low but the baby did show signs

of improvement while still in the operating

room. The baby was intubated and transported

to recovery. During the transcript [sic -

transport], the minor child's endotracheal

tube became dislodged. Following this

dislodgement the baby decompensated and it

was later discovered that the child had

suffered an anoxic insult to his brain.

. . . The Florida Board of Regents answered

Plaintiff's interrogatory #3 by stating :

During the labor period, the fetus developed

fetal distress. Measures were taken to

correct the signs of the fetal distress [sic

- and] a decision was made to expedite

delivery with a cesarian section. That was

accomplished and while one of the initial

Apgar scores were low, the baby did improve

while in the operating room. He was

intubated and was being transported to

recovery. Sometime during the transport,

David's endotracheal tube became dislodged.

At this time, we are not aware of how the

tube b ecame dislodged. The baby

decompensated following this dislodgement.

It was later discovered that the child had

suffered an anoxic insult to his brain.

* * *

10. The medical records of Sandra Nap Britt

and David Britt are void of any reference t o

the endotracheal tube becoming dislodged

during the transport. Any and all

information pertaining to David Britt's

endotracheal tube becoming dislodged during

the transport, and the connection between

such dislodgement and the possible injuries

suffered by David Britt, were not provided to

the Appellees or made available to the

Appellees until after the administrative

hearing held before the Administrative Law

Judge.

11. If, as the Defendants, The Florida Board

of Regents and Tampa General Hospital,

as sert, David's endotracheal tube became

dislodged, and such dislodgment caused

decompensation and resulted or contributed to

David's anoxic insult to his brain, then

David's injury would not qualify for NICA

compensation because such an injury would not

hav e occurred, in whole or in part, during

the labor, delivery, or resuscitation in the

immediate post - delivery period, as is

required under the Plan. See Sections

766.302(2), 766.303(2), 766.308(1) and

766.309(1)(a), Florida Statutes .

12. This newly disco vered evidence

pertaining to the dislodgement of David

Britt's endotracheal tube could provide an

independent basis for excluding David Britt's

injury from NICA coverage. Due to the

concealment of this fact in the medical

records (said concealment occurri ng through

the absence of any reference to this

incident), Appellees were not aware of these

facts at the time of the initial

administrative hearing in this matter.

13. Accordingly, although Appellees believed

the Administrative Law Judge's Order should

be affirmed, for all the reasons set forth by

Appellees in this appeal, should this Court

determine that the Administrative Law Judge's

Final Order should be reversed, Appellees

respectfully request this Court to remand

this matter back to the Division of

Administrative Hearings for further

determinations by the Administrative Law

Judge, in light of newly discovered evidence

which could have a significant impact upon

the applicability and compensability of this

claim under the Plan.

WHEREFORE, Appellees r espectfully request

this Court to affirm the Final Order of the

Administrative Law Judge, or, in the

alternative, if reversal is warranted,

Appellees respectfully request this Court to

remand this case for further proceedings in

order to allow Plaintiffs t o present the

newly discovered evidence to the

Administrative Law Judge and to NICA for

their determination.

4. In response to Petitioners'/Appellees' notice, the

court, by Order of April 25, 2002, resolved that:

Appellees' notice of request for alternat ive

relief is treated as a motion to relinquish

jurisdiction and is granted for 60 days in

order for appellees to file a motion pursuant

to Fla.R.Civ.P. 1.540.

5. On June 3, 2002, Petitioners filed the pending Motion to

Amend Final Order and/or for Rehea ring with the Division of

Administrative Hearings (DOAH). That motion, which read

substantially the same as the notice filed with the court,

concluded that:

11. If, as the Intervenors, The Florida

Board of Regents and Tampa General Hospital,

assert, Dav id Britt's endotracheal tube

became dislodged, and such dislodgment caused

decompensation and resulted in or contributed

to David Britt's anoxic insult to his brain,

and additional sequelae and events in the

NICU nursery, then David Britt's injury would

no t qualify for NICA compensation because

such an injury would not have occurred, in

whole or in part, during the labor, delivery,

or resuscitation in the immediate post -

delivery period, as is required under the

Plan. See Sections 766.302(2), 766.303(2),

76 6.308(1) and 766.309(1)(a), Florida

Statutes .

12. This newly discovered evidence

pertaining to the dislodgement of David

Britt's endotracheal tube, which is

fraudulently absent from the medical records,

would provide a basis for excluding David

Britt's i njury from NICA coverage, in whole

or in part. Due to the concealment of this

fact in the medical records (said concealment

occurring through the absence of any

reference to this incident), Petitioners were

not aware of these facts at the time of the

init ial administrative hearing in this

matter.

13. After learning of this newly discovered

evidence, the Petitioners (acting as

Appellees before the Second District Court of

Appeal) filed their Notice of Request for

Alternative Relief with the District Court of

Appeal . . .

14. In response to the Notice of Request for

Alternative Relief, the District Court of

Appeal issued its Order stating that the

Notice would be treated as a motion to

relinquish jurisdiction and such motion was

granted for a period of 60 days in order for

the Petitioners (Appellees) to file a motion

pursuant to Florida Rule of Civil Procedure

1.540 . . . .

15. Petitioners request this Court to amend

the Final Order concerning the issue of

whether David Britt suffered a birth - related

neu rological injury within the meaning of

Chapter 766, Florida Statutes , given the

newly discovered and fraudulently concealed

factual circumstances now sworn to in answers

to interrogatories by both Intervenors, Tampa

General Hospital and The Florida Board o f

Regents.

16. It is Petitioners' contention that the

initial conclusion of Administrative Law

Judge William Kendrick that David Britt

suffered a "birth related neurological

injury" was entirely correct. Unfortunately,

it appears that counsel for both Intervenors

were aware that after the initial

resuscitation within the delivery room a

subsequent event occurred involving the

dislodgment of the endotracheal tube which

they apparently believed led to an arrest and

code in the neonatal intensive care uni t.

Under the circumstances of such conduct and

given the sworn evidence concerning the event

of subsequent dislodgment of the endotracheal

tube, Petitioners request the Administrative

Law Judge to find that the subsequent events

after the initial successf ul resuscitation,

and during transport, do not constitute a

compensable claim since brain injuries

related to this event would not have occurred

during the labor, delivery or resuscitation

in the immediate post - delivery period as is

required by the plan.

WHEREFORE, Petitioners respectfully request

that an Amended Order be entered adding a

provision finding that the newly discovered

incident and its sequelae does not constitute

a compensable claim.

6. In reading the Notice of Request for Alternative Rel ief

filed with the court, as well as the Motion to Amend Final Order

and/or for Rehearing filed with DOAH, one would reasonably

conclude that Petitioners are of the view that, if considered,

the "newly discovered evidence" would likely alter the conclusion

that David suffered a "birth - related neurological injury,"

because his brain injury may be attributable to events (the

dislodgement of his endotracheal tube) that occurred after

"labor, delivery, or resuscitation in the immediate post - delivery

period." S ection 766.302(2), Florida Statutes. See also Nagy v.

Florida Birth - Related Neurological Injury Compensation

Association , 813 So. 2d 155 (Fla. 4th DCA 2002). So read,

Petitioners' motion is founded on a logical premise. However,

such is neither Petition ers' contention nor the rationale for the

pending motion.

7. Succinctly stated, Petitioners do not contend that any

injury that may have resulted from the dislodgement of David's

endotracheal tube affects the conclusion reached that he suffered

a "birth - r elated neurological injury," defined as an "injury to

the brain . . . caused by oxygen deprivation . . . occurring in

the course of labor, delivery, or resuscitation in the immediate

post - delivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

Section 766.302(2), Florida Statutes. Rather, Petitioners, by

their motion, merely "request that an Amended Order be entered

adding a provision finding that the newly discovered incident and

its sequel ae does not constitute a compensable claim." Stated

otherwise, as Petitioners' counsel acknowledged at hearing, they

agree the Final Order correctly resolved that David suffered a

"birth - related neurological injury," but request that the

administrative la w judge find that any dislodgement of his

endotracheal tube occurred after "the immediate post - delivery

period" and, consequently, the Plan does not preclude them from

pursuing a civil action with regard to that incident.

8. Given that Petitioners neith er seek relief from the

Final Order nor contend that the "newly discovered" evidence

would likely change the result if rehearing were granted, no

useful purpose would be served by conducting an evidentiary

hearing to resolve whether good cause exists under Fla.R.Civ.P.

1.540, to relieve Petitioners from the terms of the Final Order.

CONCLUSIONS OF LAW

9. Pursuant to an order of the District Court of Appeal,

Second District, State of Florida, discussed supra , jurisdiction

has been relinquished to the Divisi on of Administrative Hearings

to consider a motion, pursuant to Fla.R.Civ.P. 1.540, for relief

from the Final Order entered August 14, 2001.

10. Pertinent to this case, Fla.R.Civ.P. 1.540(b), provides

as follows:

Mistakes; Inadvertence; Excusable Neglect;

Newly Discovered Evidence; Fraud; etc. On

motion and upon such terms as are just, the

court may relieve a party or a party's legal

representative from a final judgment, decree,

order, or proceeding for the following

reasons: . . . (2) newly discovered e vidence

which by due diligence could not have been

discovered in time to move for a new trial or

rehearing; (3) fraud (whether heretofore

denominated intrinsic or extrinsic),

misrepresentation, or other misconduct of an

adverse party . . . .

11. Notably , as heretofore discussed, Petitioners do not

seek relief from the Final Order. Moreover, they do not contend

the "newly discovered" evidence would likely change the result if

rehearing were granted. Consequently, there is no basis for

relief under Fla.R .Civ.P. 1.540(b), and no need to conduct an

evidentiary hearing on Petitioners' motion. Dade National Bank

of Miami v. Kay , 131 So. 2d 24, 26 (Fla. 3d DCA 1961)(The

"requirements for granting a new trial on the ground of newly

discovered evidence are [, i nter alia,] . . . that it must appear

that the evidence is such as will probably change the result if a

new trial is granted; . . . [and] that it is material to the

issue."). See also Schlapper v. Maurer , 687 So. 2d 982 (Fla. 5th

DCA 1997)(Materiality is one of four elements required before a

court should grant relief from fraudulent misrepresentation).

12. As for Petitioners' request that the administrative law

judge conduct an evidentiary hearing and enter an amended final

order finding that any dislodg ement of David's endotracheal tube

occurred after "the immediate post - delivery period" and,

consequently, the Plan does not preclude them from pursuing a

civil action with regard to that incident, I decline to accord

such relief for two reasons. First, ju risdiction was

relinquished to the Division of Administrative Hearings for the

limited purpose of considering a motion filed pursuant to

Fla.R.Civ.P. 1.540. Petitioners' request exceeds the bounds of

the court's delegation. Secondly, given Petitioners'

a cknowledgement that the claim is compensable, the subsequent

dislodgement of David's endotracheal tube is not material to the

issue of whether he suffered a "birth - related neurological

injury." Consequently, whether the dislodgement occurred during

"the i mmediate post - delivery period" or thereafter is not a

matter the administrative law judge need address. See Section

766.309, Florida Statutes, and Gugelmin v. Division of

Administrative Hearings , 27 Fla.L.Weekly D1101a (Fla. 4th DCA

May 8, 2002).

CONCLUSI ON

Based on the foregoing, it is

ORDERED that Petitioners' Motion to Amend Final Order and/or

for Rehearing is denied.

DONE AND ORDERED this 31st day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

W ILLIAM 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 31st day of July, 2002.

ENDNOTE

1/ The hearing was held on June 25, 2001.

COPIES FURNISHED:

Kenneth J. Plante, Esquire

Wilbur E. Brew ton, Esquire

Brewton, Plante & Plante, P.A.

225 South Adams Street

Suite 250

Tallahassee, Florida 32301

Michael N. Brown, Esquire

Allen Dell, P.A.

Post Office Box 2111

Tampa, Florida 33601

Roland J. Lamb, Esquire

Hahn, Morgan & Lamb

2701 North Rocky Po int Drive

Suite 410

Tampa, Florida 33601

Lynn Larson, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32312

David S. Nelson, Esquire

Smith & Fuller, P.A.

Post Office Box 3288

Tampa, Florida 33601

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 govern ed 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 o f rendition of the order to

be reviewed.