02-001021N Kristina Ellen Giroux And Jayson Giroux, As Parents And Natural Guardians Of Emma Mae Giroux, A Deceased Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, November 5, 2002.

Summary: By virtue of Petitioners` settlement with the participating physician and nurse midwife, they were barred from pursuing an award under the Plan.

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, ) Case No. 0 2 - 1021N

)

vs. )

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

AMISUB (North Ridge Hospital, )

Inc.), d/b/a NORTH RIDGE )

MEDICAL CENTER, )

)

Intervenor. )

)

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, R oselli,

Buser, Slama, Hancock, McNelis,

Liberman & McKee

700 Southeast Third Avenue, Suite 100

Fort Lauderdale, Florida 33316 - 1186

For Respondent: Davi d 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 Cent er:

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 physic ian'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

hu man 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 Gir oux,

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 compens able 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 ME DICAL 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 Judg e charged with

determining exclusivity of NICA . . . . 1

4. Petitioners seek an order from the

Division of Administrative Hearings that

NICA is not the exclusive remedy for the

personal injury claim predicated upon

a. RONALD TUTTELMAN, M.D. did not

part icipate in the delivering of the child

and therefore, NICA is not available to the

doctor or his professional association;

b. That if it is determined to have

participated in some manner, the failure to

physically attend the delivery was willful

and wan ton, 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 pressur e 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;

c. Alternatively, the conduct of RONALD M.

TUTTELMAN, M.D. as alleged in Paragraph(b)

was not at th e 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;

d. As to NORTH RIDGE MEDICAL CENTER, with

the knowledge of pregnan cy 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.

DOA H 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 clai m 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 O rders 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 suffe red 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 O rder 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 t hat:

* * *

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 i nfant 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 f inal 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 A gainst Florida Birth - Related Ne urological 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

respect fully 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 civi l 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 s ettlement

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.

4. If Petitioners resolve to so stipula te,

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 t o all

parties by October 8, 2002, and all

discovery currently scheduled as well as the

final hearing will proceed as scheduled.

5. While not discussed at hearing, given

the settlement by the physician and nurse

midwife with Petitioners it would be

approp riate 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, Responden t, 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,

200 2, 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 Withdr awal

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 be ing

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, AM ISUB

(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 NIC A 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 Pitoci n 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

partici pation 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, ackn owledge 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 t his 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 ev ent an Evidentiary Hearing

is rendered unnecessary by this Stipulation:

A. The medical records filed and attached

to the Petition shall be admitted into

evidence.

B. 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.

C. 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 admini strative proceeding.

D. 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. Consist ent 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 evid ence.

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 i n 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

766.30 9(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 cl aim 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 th e

Plan.

CONCLUSIONS OF LAW

Jurisdiction

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 - Rela ted 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. Section s

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 res ponse 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 comp ensable 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 Statu tes.

9. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) 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 physica lly

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

res uscitation 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 hos pital.

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 phy sician

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 leas t 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

p hysically 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 wa s 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 76 6.304,

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

essen tial 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 la w 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 r emedy afforded by the Plan, Subsection

766.303(2), 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, paren ts,

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 malpractic e 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 su it

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 a ny 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 permit s

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.

76 6.301 - 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 betw een 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 B irth - 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 differe ntly, 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 eli gible 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

com pensation. 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 de fined by section 766.302(3):

(3) "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 posit ion 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 d efinition 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 cou rt'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 g ranted 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 - BOR N

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

MALPRACTIC E 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

Com pensation 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 t his 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 h im 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 un der 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 a nomalous 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

be nefits. 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 decisi on 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 determinati on 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 ap proved

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

defen se 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 Jul y 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 otherwis e 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 Hospit al, 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 transe cted 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 Micha el

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 procee ds 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 ac tion

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 civi l 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 deter mination, 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 o f 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

adopt ed 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 a nd 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 issu e 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 purs uant 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 clai m 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

t he 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 (Fl a. 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 - Rel ated

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 Legislat ure

evidenced its intent to adopt an election of remedies clause to

avoid future claims such as those pursued in G ilbert . In all,

by the amendments to the Plan, the Legislature evidenced its

intention that "[t]he administrative law judge has exclusive

jur isdiction 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 judg e," 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

physic ian, 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 bene fits 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 dec ide 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 ele ct

(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 clai m 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

H earings , 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 h as 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), Flo rida 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 Re gulation

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 o f 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

Di vision 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

t his 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 C ENTER

(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 Administra tive 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' Com plaint 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. Tuttelm an 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 §766.30 4.

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 o n 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 t he 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 a nd 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 - enacte d 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 act ion

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 a n 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)

Kenn ey 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, Han cock, 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 Dr awer 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 So utheast 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 Wil loughby

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 proceeding s 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 WI LLOUGHBY

AGENCY FOR HEALTH CA RE ADMINISTRATION

CONSUMER SERVICES UN IT

PO BOX 14000

TALLAHASSEE FL 3230 8

MARK CASTEEL GEN COU NSEL

DEPARTMENT OF INSURA NCE

THE CAPITOL LL 26

TALLAHASSEE FL 3239 9 - 0300