01-001195N Maria Ferguson And Garry Ferguson, On Behalf Of And As Parents And Natural Guardians Of Casey Ferguson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, October 4, 2007.

Summary: Amended Final Order following remand, approval of the parties` stipulation and award.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA FERGUSON AND GARRY )

FERGUSON, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF CASEY FERGUSON, A MINOR , )

)

Petitioner s , )

)

vs. ) Case No. 01 - 1195N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIAT ION , )

)

Respondent . )

)

AMEND ED FINAL ORDER FOLLOWING REMAND,

APPROVAL OF PARTIES' STIPULATION, AND AW ARD

On December 18, 2001, a Final Order was rendered in the

abov e - styled case which resolved that the subject claim

qualified for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan), and that the

participating physician, but not the hospital, complied with the

notice provisions of the Plan. Left to resolve was how much

compensation , if any, should be awarded pursuant to Section

766.31, Florida Statutes.

That Final Order was duly appealed to the District Court of

Appeal, Second District, State of Florida, which, by Opinion

filed April 2 , 2004, resolved that:

. . . [w]e determine that the ALJ not only

exceeded his jurisdiction in reaching the

legal conclusions regarding immunity, but

also exceeded his jurisdiction in addressing

the factual issues of notice. We therefore

reverse the ALJ' s order as to the notice

issues. In so doing, we certify conflict

with the Fifth District's opinion in

O'Leary , 757 So. 2d 624, the Third

District's opinion in University of Miami v.

M.A. , 793 So. 2d 999 (Fla. 3d DCA 2001), and

the Fourth District's opini ons in Gugelmin

v. Division of Administrative Hearings , 815

So. 2d 764 (Fla. 4th DCA 2002), and Behan v.

Florida Birth - Related Neurological Injury

Compensation Ass'n , 664 So. 2d 1173 (Fla.

4th DCA 1995), to the extent that these

opinions hold that the ALJ has the authority

to determine issues related to notice in

NICA proceedings.

* * *

Additionally, we affirm the ALJ's order as

to the finding of compensability of the

injury, and we remand for the entry of an

amended final order consistent with this

opi nion.

On January 11, 2007, the Supreme Court of Florida rendered

its opinion in the consolidated case, Florida Birth - Related

Neurological Injury Compensation Association v. Division of

Administrative Hearings ( All Children's Hospital ) and Florida

Birth - Re lated Neurological Injury Compensation Association v.

Ferguson , 948 So. 2d 705 (Fla. 2007). As for the Ferguson case,

the Court found the issue raised to be moot, and dismissed the

petition for review. However, with regard to the All Children's

Hospital case the Court resolved the conflict question, as

follows:

In conclusion, when the issue of whether

notice was adequately provided pursuant to

section 766.316 is raised in a NICA claim,

we conclude that the ALJ has jurisdiction to

determine whether the hea lth care provider

complied with the requirements of section

766.316 . Therefore, we quash the Second

District's decision in All Children's

Hospital , and remand for further findings

consistent with this opinion. We dismiss

the petition to review Ferguson a s moot.

On receipt of the Supreme Court's Mandate in Ferguson , the

District Court of Appeal returned the record to the Division of

Administrative Hearings (DOAH), and closed its file. Left

pending before DOAH, was the obligation to conform the ALJ's

Fina l Order to the opinions of the District Court of Appeal and

the Supreme Court, and to resolve how much compensation, if any,

should be awarded pursuant to Section 766.31, Florida Statutes.

The issue of compensation was addressed by the parties'

Stipulatio n as to the Amount of the NICA Award, filed

September 28, 2007.

Giving due consideration to the Opinion of the District

Court of Appeal, the Supreme Court's Opinion , and the parties'

Stipulation, it is

ORDERED that:

1. A new sentence is added at the end o f paragraph 31 of

the Final Order to read, as follows: "Here, the participating

physician complied with the notice provisions of the Plan, but

the hospital did not."

2 . Paragraphs 32 through 3 8 and Endnote 9 of the Final

Order are vacated.

3. Paragraph 39 of the Final Order is renumbered paragraph

32, and amended to read , as follows:

32. Where, as here, the administrative law

judge determines that "the infant has

sustained a birth - related neurological

injury and that obstetrical services were

delivered by a participating physician at

birth," he is required to make a

determination as to "how much compensation,

if any, is to be awarded pursuant to s.

766.31." Section 766.309(1)(c), Florida

Statutes. In this case, the issues of

compensability and the amo unt of

compensation to be awarded were bifurcated.

Accordingly, absent agreement by the

parties, a further hearing will be necessary

to resolve any existing disputes regarding

"actual expenses," the amount and manner of

payment of "an award to the parents or

natural guardians," and the "reasonable

expenses incurred in connection with the

filing of the claim." Section 766.31(1),

Florida Statutes.

4. The "Conclusion" of the Final Order is amended to read,

as follows:

CONCLUSION

Based on the foregoing Fin dings of Fact and

Conclusions of Law, it is

ORDERED that the claim for compensation

filed by Maria Ferguson and Garry Ferguson,

as parents and natural guardians of

Casey Ferguson, a minor, and NICA's proposal

to accept the claim for compensation be and

th e same are hereby approved.

It is further ORDERED that the participating

physician complied with the notice

provisions of the Plan, but the hospital did

not.

It is further ORDERED that absent agreement,

and subject to the approval of the

administrative l aw judge, a hearing will be

scheduled to determine "how much

compensation, if any, is to be awarded

pursuant to s. 766.31." § 766.309(1)(c),

Fla. Stat. Once resolved, an award will be

made consistent with Section 766.31, Florida

Statutes.

It is further ORDERED that pursuant to

Section 766.312, Florida Statutes,

jurisdiction is reserved to resolve any

disputes, should they arise, regarding the

parties' compliance with the terms of this

Final Order.

5. The Stipulation as to the Amount of the NICA Award,

filed September 28, 2007, i s hereby approved, and the parties

are directed to comply with the provisions thereof.

6. Petitioners, Maria Ferguson and Garry Ferguson, as the

parents of Casey Ferguson, a deceased minor, are awarded One

hundred thousand dolla rs ($100,000.00), pursuant to Section

766.31(1)(b), Florida Statutes, to be paid in lump sum, together

with past expenses in the sum of Two thousand five hundred four

dollars and fifty cents ($2,504.50), pursuant to Section

766.31 (1) (a), Florida Statutes. Petitioners are also award ed

attorney's fees, including costs, in the sum of Thirty thousand

dollars ($30,000.00), pursuant to Section 766.31(1)(c), Florida

Statutes, which shall be payable to Goldfarb, & Gold, P.A.,

Trust Account.

7. Upon payment of the award of One hundred thousand

dollars ($100,000.00), attorney's fees and other expenses of

Thirty thousand dollars $30,000.00), and past expenses of Two

thousand five hundred four dollars and fifty cents ($2,504.50),

the claims of Petitioners (Claimants) shall be deemed fully

satisfied and extinguished.

8. The Division of Administrative Hearings retains

jurisdiction over this matter to resolve any disputes, should

they arise, regarding the parties' compliance with the terms of

this Amended Final Order and Award .

DONE AND ORDERED this 4th day of October , 2007 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 4th day of October, 2007 .

COPIES FURNISHED :

(Via Certified Mail)

Wilbur E. Brewton, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7099 3400 0010 4399 3069)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2 360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7099 3400 0010 4399 3052)

David H. Gold, Esquire

Goldfarb, Gold, Gonzalez & Ward

2595 Town Center Road, Suite 201

Boca Raton, Florida 33486

(Certified Mail No. 7099 3400 0010 4399 3045)

Robert E. Biasotti, Esquire

Carlton Fields, P.A.

Post Office Box 2861

St. Petersburg, Florida 33731

(Certified Mail No. 7099 3400 0010 4399 2802)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this F inal O rder is en titled

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 Ass ociation 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.