03-003008N Tracie Turner Jackson And Ulysses Bernard Jackson, On Behalf Of And As Parents And Natural Guardians Of Jacqueline Simone Jackson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 6, 2005.

Summary: The claim was compensable, but because Petitioners recovered through settlement of a civil action with the hospital, they could not receive an award. Also, participating physicians complied with the notice provisions of the Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACIE TURNER JACKSON and )

ULYSSES BERNARD JACKSON, on )

behalf of and as parents and )

natural guardians of JACQUELINE )

SIMONE JACKSON, a minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 3008N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

ALEJANDRO J. PENA, M.D.; MARC )

W. BISCHOF, M.D.; and PHYSICIAN )

ASSOCIATES OF FLORIDA, INC., )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a final hearing in the above - styled case on November 4, 2004, by

video teleconference, with sites in Tallaha ssee and Orlando,

Florida.

APPEARANCES

For Petitioners: Darryl L. Lewis, Esquire

Rosalyn Sia Baker - Barnes, Esquire

Searcy, Denney, Scarola,

Barnhart & Shipley, P.A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

For Respondent: M. Mark Bajalia, Esquire

Volpe, Bajalia, Wickes & Rogerson

1301 Riverplace Boule vard, Suite 1700

Jacksonville, Florida 32207

For Intervenors: Henry W. Jewett, II, Esquire

Jennings L. Hurt, III, Esquire

Rissman, Weisberg, Barrett,

Hurt, Donahue & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32801

STATEMENT OF THE ISSUES

1. Whether Jacqueline Simone Jackson (Jacqueline), a

minor, qualifies for coverage under the F lorida Birth - Related

Neurological Injury Compensation Plan (Plan).

2. If so, whether Petitioners' settlement of a civil suit

against the hospital where Jacqueline was born for negligence

associated with her birth bars them from recovery of an award

under the Plan.

3. Whether the participating physicians complied with the

notice provisions of the Plan.

PRELIMINARY STATEMENT

On August 15, 2003, Tracie Turner Jackson and

Ulysses Bernard Jackson, on behalf of and as parents and natural

guardians of Jacquelin e Simone Jackson, a minor, filed a

petition (claim) with the Division of Administrative Hearings

(DOAH) to resolve whether their daughter suffered an injury that

was covered by the Florida Birth - Related Neurological Injury

Compensation Plan, and whether th e participating physicians who

provided obstetrical services during her birth (Alejandro J.

Pena, M.D. and Marc W. Bischof, M.D.) complied with the notice

provisions of the Plan.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Associ ation (NICA) with a copy of the claim on

August 21, 2003, and on January 30, 2004, following a number of

extensions of time within which to do so, NICA filed a Notice of

Compensability and Request for Hearing on Compensability,

wherein it agreed the claim was compensable and requested that a

hearing be scheduled to resolve whether NICA's proposal to

accept the claim should be approved. In the interim,

Alejandro J. Pena, M.D.; Marc W. Bischof, M.D.; and Physician

Associates of Florida, Inc., requested and w ere granted leave to

intervene.

A hearing was scheduled for August 2 - 4, 2004, later

rescheduled at the parties' request for November 4 and 5, 2004,

to resolve whether the claim was compensable and whether the

participating physicians complied with the noti ce provisions of

the Plan. Left to resolve at a subsequent hearing were matters

related to an award, and the implications of Petitioners'

settlement with the birthing hospital on Petitioners'

entitlement to an award of benefits. Subsequently, the parties

agreed the claim was compensable and, as appears more fully

infra , agreed that given their settlement with the hospital

Petitioners were not entitled to an award of benefits.

§ 766.304, Fla. Stat.

At hearing, Tracie Turner Jackson testified on Petitioner s'

behalf and Petitioners' Exhibits (marked Petitioners' or

Plaintiffs') 1 - 3, and 5 were received into evidence. 1

Intervenors called Marsha Burns and Liz Larson Posey as

witnesses, and Intervenors' Exhibits (marked Intervenors' or

"I") 1, 2, and 4 - 9 were received into evidence. 2 Respondent

called no witnesses and offered no exhibits.

The transcript of the hearing was filed November 30, 2004,

and the parties were accorded 10 days from that date to file

proposed orders. The parties elected to file such pro posals,

and they have been duly considered.

FINDINGS OF FACT

Findings related to compensability

acie Turner Jackson and Ulysses Bernard Jackson are

the natural parents and guardians of Jacqueline Simone Jackson,

a minor. Jacqueline was born a live infant on December 8, 1999,

at Orlando Regional Healthcare System, d/b/a Arnold Palmer

Hospital for Women and Children (Arnold Palmer Hospital), a

licensed hospital located in Orlando, Florida, and her birth

weight exceeded 2,500 grams.

2. The physicians providing obstetrical services at

Jacqueline's birth were Alejandro J. Pena, M.D., and Marc W.

Bischof, M.D., who, at all times material hereto, were

"participating physician[s]" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defin ed by Section

766.302(7), Florida Statutes.

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 a 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. St at.

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

otherwise compelling, that Jacqueline suffered a "birth - related

neurological injury." Consequently, 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 settlement with Arnold Palmer Hospital

5. In 2002, Tracie Turner Jackson and Ulysses Bernard

Jackson, individually and as parents and natural guardians of

their minor daughter, Jacqueli ne Simone Jackson, Plaintiffs,

filed a medical malpractice claim arising out of the birth of

Jacqueline against Orlando Regional Health Care System, Inc.,

d/b/a Arnold Palmer Hospital for Women and Children;

Alejandro J. Pena, M.D.; Marc W. Bischof, M.D.; Physician

Associates of Florida, Inc.; T. Zinkil, R.N.; S. Furgus, R.N.;

Nancy Ruiz, R.N.; L. Baker, R.N.; T. Flyn, R.N.; and

Nancy Ostrum, R.N., Defendants, in the Circuit Court of the

Ninth Judicial Circuit in and for Orange County, Florida, Case

No. 200 2 - CA - 6770 Div. 34. A settlement was reached with Arnold

Palmer Hospital, but the case against Dr. Pena, Dr. Bischof, and

Physician Associates of Florida, Inc., remained pending. 3

6. Given Petitioners' settlement with Arnold Palmer

Hospital, and the provi sions of Section 766.304, Florida

Statutes (1999) 4 ("An action may not be brought under ss. 766.301 -

766.316 if the claimant recovers or final judgment is

entered."), Petitioners and Respondent stipulated that

"Petitioners are not entitled to any actual paym ent or award

from NICA, even if a finding is made that the claim is

compensable and adequate notice was given." (Petitioners'

letter of November 18, 2004, filed November 19, 2004, and

Respondent's letter of November 16, 2004, filed November 16,

2004.)

The notice provisions of the Plan

7. While the claim qualifies for coverage under the Plan,

Petitioners have responded to the physicians' claim of Plan

immunity by averring that the participating physicians who

delivered obstetrical services at Jacqueline's birth (Doctors

Pena and Bischof) failed to comply with the notice provisions of

the Plan. Consequently, it is necessary to resolve whether

either participating physician gave the required notice.

O'Leary v. Florida Birth - Related Neurological Injury

Comp ensation Association , 757 So. 2d 624, 627 (Fla. 5th DCA

2000)("All questions of compensability, including those which

arise regarding the adequacy of notice, are properly decided in

the administrative forum.") Accord University of Miami v. M.A. ,

793 So. 2 d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth - Related

Neurological Injury Compensation Association , 880 So. 2d 1253

(Fla. 1st DCA 2004). See also Behan v. Florida Birth - Related

Neurological Injury Compensation Association , 664 So. 2d 1173

(Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v.

Department of Administrative Hearings , 863 So. 2d 450 (Fla. 2d

DCA 2004) (certifying conflict); Florida Health Sciences Center,

Inc. v. Division of Administrative Hearings , 871 So. 2d 1062

(Fla. 2d DCA 2004) (same); and Florida Birth - Related Neurological

Injury Compensation Association v. Ferguson , 869 So. 2d 686

(Fla. 2d DCA 2004)(same).

8. At all times material hereto, Section 766.316, Florida

Statutes, prescribed the notice provisions of the Plan, as

fol lows:

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 Neurologi cal Injury Compensation

Plan shall provide notice to the obstetrical

patients 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. The hospital or the participating

physician may elect to have the patient sign

a form acknowledging receipt of the notice

form. Signature of the patient

acknowledging receipt of t he notice form

raises a rebuttable presumption that the

notice requirements of this section have

been met. Notice need not be given to a

patient when the patient has an emergency

medical condition as defined in s.

395.002(9)(b) or when notice is not

pract icable.

9. Responding to Section 766.316, Florida Statutes, NICA

developed a brochure, titled "Peace of Mind for an Unexpected

Problem" (the NICA brochure), which contained a clear and

concise explanation of a patient's rights and limitations under

the P lan, and distributed the brochure to participating

physicians and hospitals so they could furnish a copy of it to

their obstetrical patients. ( See , e.g. , Petitioners' Exhibit 2,

the NICA brochure, "This brochure is prepared in accordance with

the mandate of [Section] 766.316, Florida Statutes.")

Findings related to the participating

physicians and notice

10. Mrs. Jackson received her prenatal care at the

Longwood Center, one of 7 offices in the Orlando area operated

by Physician Associates of Florida (PA F), a group practice

comprised of 35 physicians, including 16 obstetrician -

gynecologists. ( See , e.g. , Intervenors' Exhibits 1, 2, 4, and

6.) At the time, four obstetricians staffed the OB - GYN

department at the Longwood Office, Dr. Marc Bischof, who

provi ded obstetrical services during Jacqueline's birth;

Dr. Robert Bowels; Dr. Peter Perry; and Dr. Jose Lopez - Cintron.

However, as a group practice, all obstetricians rotated delivery

calls at the hospital, so it was possible, as occurred in this

case with Dr . Pena, that a doctor from a different office would

participate in the delivery. Notably, all obstetricians

associated with PAF were participating physicians in the Plan.

11. On April 12, 1999, Mrs. Jackson presented to the

Longwood Center for her init ial visit. At the time, consistent

with established routine, the receptionist provided Mrs. Jackson

with a packet of information that included a number of forms for

her to complete and sign, including: a Patient Information

form; a Consent for Human Immu nodeficiency Virus (HIV) Antibody

Testing form; a Triple Test Form (a screening test for Down's

Syndrome); a Prenatal Diagnosis Screening Questionnaire; and a

Notice to Obstetrical Patient (to acknowledge receipt of the

NICA brochure that was, indisputably , included in the packet).

The Notice to Obstetric Patient provided, as follows:

NOTICE TO OBSTETRIC PATIENT

(See Section 766.316, Florida Statutes)

I have been furnished information by

Physician Associates of Florida prepared by

the Florida Birth Relate d Neurological

Injury Compensation Association, and have

been advised that __________________[ 5 ] is a

participating physician in that program,

wherein certain limited compensation is

available in the event certain neurological

injury may occur during labor , delivery or

resuscitation. For specifics on the

program, I understand I can contact the

Florida Birth Related Neurological Injury

Compensation Association (NICA), 1435

Piedmont Drive East, Suite 101, Tallahassee,

Florida 32312 1 - 800 - 398 - 2129. I furthe r

acknowledge that I have received a copy of

the brochure prepared by NICA.

DATED this ____ day of _____________, 199__.

___________________

Signature

___________________

(NAME OF PATIENT)

Social Security No.:

Attest:

_______________________

(Nurse or Physician)

Date: ________________

Mrs. Jackson completed each of the forms, including the Notice

to Obstetric Patient, by providing the requested inform ation,

and then signing and dating the forms. (Petitioners'

Exhibit 1).

12. Here, there is no dispute that Mrs. Jackson signed the

Notice to Obstetric Patient or that she received a copy of the

NICA brochure on her initial visit. There is likewise no

di spute that, given the blank space, the notice form was

inadequate to provide notice that Dr. Bischof, Dr. Pena, or any

obstetrician associated with PAF was a participating physician

in the Plan. Rather, what is disputed is whether, as contended

by Interve nors, Mrs. Jackson was told during her initial visit

that all obstetricians in PAF were participants in the Plan. 6

13. Regarding Mrs. Jackson's initial visit, the proof

demonstrates that, following completion of the paperwork,

Mrs. Jackson was seen by N urse Posey for her initial interview.

Typically, such visits lasted approximately 45 minutes, with 30

minutes spent reviewing the patient's history, as well as the

paperwork she received in the packet, and 15 minutes spent on a

physical examination. Acco rding to Nurse Posey, she conducted a

minimum of two initial prenatal interviews daily, five days a

week, and followed the same procedure during each interview.

14. As described by Nurse Posey, during the initial

interview she always discussed each form ( the Prenatal Diagnosis

Screening Questionnaire, the Triple Test Form, Consent for Human

Immunodeficiency Virus (HIV) Antibody Testing form, and the

Notice to Obstetric Patient) individually, and when the form had

been discussed she would co - sign the form. (Transcript, pp. 65 -

68) Moreover, as for the NICA program, Nurse Posey always

confirmed that the patient had received the NICA brochure, and

told the patient that PAF's obstetrical service was "a group

practice; that anyone in the group could do the deli very; and

that each member of the group was a participant in the NICA

program." (Transcript, pp. 68 - 70) Finally, Nurse Posey

documented her routine through an entry on the prenatal flow

sheet (Intervenors' Exhibit 6), which noted she had provided the

pat ient information on the various tests, as well as the NICA

brochure and notification. Here, that entry read: "Pt given

info on diet, exercise, HIV screening, triple test, NICA

pamphlet & notification & cord blood storage." (Petitioners'

Exhibit 1, Inter venors' Exhibit 6, and Transcript, pp. 70 - 78.)

In this case, Nurse Posey was confident she had followed her

routine, since she would not have co - signed the various

documents, such as the Notice to Obstetric Patient, or made the

entry on the prenatal flo w sheet unless she had done so.

15. In response to the evidence offered by Intervenors on

the notice issue, Mrs. Jackson testified there was never a

discussion of the NICA program, and she was never told the

physicians associated with PAF's obstetrical pr ogram were

participating physicians in the Plan. However, Mrs. Jackson

acknowledged that Nurse Posey questioned her regarding her

medical history, and that she explained the Prenatal Diagnosis

Screening Questionnaire, the Triple Test Form, and the HIV for m.

(Transcript, pp. 141 - 145) As for the Notice to Obstetric

Patient, Mrs. Jackson initially denied having read it; then

testified she may have read it "briefly," but "didn't go into

details" or "seek out specifics"; and finally stated she could

not remem ber reading the form, but could not deny that she may

have read it. (Transcript, pp. 150, 151, 156 - 159)

16. Here, giving due consideration to the proof, it must

be resolved that the more persuasive proof supports the

conclusion that, more likely than n ot, Nurse Posey, consistent

with her routine, discussed the NICA program with Mrs. Jackson

on her initial visit, and informed Mrs. Jackson that the

physicians associated with PAF's obstetrical program were

participating physicians in the Plan. In so concl uding, it is

noted that, but for the NICA program, Mrs. Jackson acknowledged

Nurse Posey otherwise followed her routine; that it is unlikely,

given such consistency, Nurse Posey would not have also

discussed the NICA program; that Nurse Posey, as was her

r outine, co - signed each of the forms she discussed with

Mrs. Jackson, including the Notice to Obstetric Patient; that

Nurse Posey, as was her routine, documented her activity on the

prenatal flow sheet; and that Mrs. Jackson evidenced little

recall of the d ocuments she signed or the discussions she had

with Nurse Posey. Finally, Nurse Posey's testimony was logical,

consistent, and credible, whereas Mrs. Jackson's testimony was

often equivocal.

CONCLUSIONS OF LAW

Jurisdiction

17. The Division of Administra tive Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings. § 766.301, et seq. , Fla. Stat.

Compensability

18. In resolving whether a claim is covered by the Plan,

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 spi nal 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).

(b) 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 co ncludes 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.

19. "Birth - related neurological injury" is defined by

Section 766. 302(2), Florida Statutes, to mean:

. . . injury to the brain or spinal cord of

a live infant weighing at least 2,500 grams

at birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immedi ate 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 abnor mality.

20. Here, it has been established that Dr. Pena and

Dr. Bischof, physicians who provided obstetrical services at

Jacqueline's birth, were "participating physician[s]," and that

Jacqueline suffered a "birth - related neurological injury."

Conseque ntly, the claim is covered by the Plan, and the

administrative law judge is required to make an award of

compensation unless Petitioners are barred from pursuing an

award because they recovered damages, through settlement of a

civil action with Arnold Palm er Hospital, for medical

malpractice associated with Jacqueline's birth. §§ 766.304,

766.309, and 766.31, Fla. Stat.

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

21. The Florida Birth - Related Neurological Injury

Compensation Plan was enacted by the Legislature to address "a

perceived medical malpractice . . . crisis affecting

obstetricians and to assure the continued availability of

essential obstetrical services." Humana of Florida, Inc. v.

McKaughan , 652 So. 2d 852, 855 (Fla. 2d DCA 1995); § 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." Humana of Florida, Inc. v. McKaughan , 652 So . 2d

at 855; § 766.301(2), Fla. Stat.

22. 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.; Florida Birth -

Related Neurological Injury Compensation Association v.

McKaughan , 668 So. 2d 974 (Fla. 1996). Regarding the

exclusiveness of the remedy afforded by the Plan, Subsection

766.303(2), provides:

(2) The rights and remedies granted by this

plan on account of a birth - related

neurological injury sh all 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 res uscitation

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 purp ose 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.

23. Effective July 1, 1998, the Legislature adopted

Chapter 98 - 113, Laws of Florida, which amended Sections 766.301

and 766.304, Florida Statutes. 7 Pertinent to this case, the

amendments (underlined) to Section s 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

warra nt 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

determ ine 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

sectio ns. 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 u nder ss. 766.301 - 766.316 if the

claimant recovers or final judgment is

entered . . . .

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

24. By the amendments to Sections 766.301 and 766.304,

Florida Statutes, the Legislature reacted "adversely to the

result reach ed in McKaughan ," wherein the S upreme C ourt

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 exclusi vely 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 Neurolo gical Injury

Compensation Association , 724 So. 2d 688 (Fla. 2d DCA 1999),

wherein the court held 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 tha t if a claimant persists and

"recovers or final judgment is entered," as in this case, 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.")

25. Here, consistent with the provisions of Section

766.304, Florida Statutes (1999), Petitioners and Respondent

ha ve stipulated that, having received a settlement with Arnold

Palmer Hospital for damages associated with Jacqueline's birth,

Petitioners have "recovered," as that word is commonly

understood, and are not entitled to Plan benefits. See Holly v.

Auld , 450 S o. 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 plai n and obvious meaning."); Abramson v.

Florida Psychological Association , 634 So. 2d 610, 612 (Fla.

1994)("Administrative agencies have the authority to interpret

the laws which they administer, but such interpretation cannot

be contrary to clear legislativ e intent.") Consequently, while

Jacqueline suffered an injury covered by the Plan, Petitioners

are not entitled to an award of benefits.

The notice provisions of the Plan

26. W hile Jacqueline qualifies for coverage under the

Plan, Petitioners have soug ht to avoid the participating

physicians' attempt to invoke the Plan as Petitioners' exclusive

remedy by averring that the participating physicians failed to

comply with the notice provisions of the Plan. Consequently, it

was necessary for the administrat ive law judge to resolve

whether, as alleged by the participating physicians, appropriate

notice was given. O'Leary v. Florida Birth - Related Neurological

Injury Compensation Plan , supra . As the proponent of such

issue, the burden rested on the participat ing physicians to

demonstrate, more likely than not, that the notice provisions of

the Plan were satisfied. Tabb v. Florida Birth - Related

Neurological Injury Compensation Association , 880 So. 2d 1253

(Fla. 1st DCA 2004). See also Galen of Florida, Inc. v .

Braniff , 696 So. 2d 308, 311 (Fla. 1997)("[T]he assertion of

NICA exclusivity is an affirmative defense."); Id. , at page 309

("[A]s a condition precedent to invoking the Florida Birth -

Related Neurological Injury Compensation Plan as a patient's

exclusive remedy, health care providers must, when practicable,

give their obstetrical patients notice of their participation in

the plan a reasonable time prior to delivery."); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d

349, 350 (Fla. 1 st DCA 1997)("[T]he burden of proof, apart from

statute, is on the party asserting the affirmative issue before

an administrative tribunal.") Here, for reasons appearing in

the Findings of Fact, the participating physicians demonstrated

that they complied with the notice provisions of the Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Tracie Turner Jackson and Ulysses Bernard Jackson, on behalf and

as parents and natu ral guardians of Jacqueline Simone Jackson, a

minor, qualifies for coverage under the Plan; however, given

Petitioners' recovery from Arnold Palmer Hospital, they may not

pursue or recover an award of benefits.

It is further ORDERED that with regard to the participating

physicians, Doctors Alejandro J. Pena and Marc W. Bischof, the

notice provisions of the Plan were satisfied.

DONE AND ORDERED this 6th day of January, 2005, 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 t he

Division of Administrative Hearings

this 6th day of January, 2005.

ENDNOTES

1/ Petitioners' Exhibit 4 was marked for identification only.

2/ Intervenors' Exhibits 1 and 2 were received into evidence

post - hearing, after Petitioners had an opportuni ty to review the

exhibits and gave notice (by letter) they had no objection.

Intervenors' Exhibit 3 was marked for identification only.

3/ In response to NICA's First Set of Interrogatories, dated

April 2, 2004, Petitioners filed the following answer on May 14,

2004:

Interrogatory No. 2

Have you ever sued any party for any of the

injuries alleged in the Petition? If so,

please identify:

(a) the style and case number of the

lawsuit along with the state and county in

which it was filed;

TRACIE TUR NER JACKSON and ULYSSES BERNARD

JACKSON, individually and as parents and

natural guardians of their minor dauther

[sic], JACQUELINE SIMONE JACKSON,

Plaintiffs,

vs.

ORLANDO REGIONAL HEALTHCARE SYSTEM, INC.,

d/b/a ARNOLD PALMER HOSPITAL FOR WOMEN AND

CHIL DREN; ALEJANDRO J. PENA, M.D.; MARC W.

BISCHOF, M.D.; and PHYSICIAN ASSOCIATES OF

FLORIDA, INC., T. ZINKIL, R.N.; S. FURGUS,

R.N.; NANCY RUIZ, R.N.; L. BAKER, R.N.;

T. FLYNN , R.N.; and NANCY OSTRUM, R.N.,

Defendants,

This case was filed in the Circuit Cou rt of

the 9th Judicial Circuit in and for Orange

County, Florida

Case No. 2002 - CA - 6770 Div. 34

(b) the deposition of that action (pending,

settled, dismissed, etc.);

A settlement was reached with Orlando

Regional Healthcare System, Inc., d/b/a

Arnold P almer Hospital.

Litigation against Defendants, Alejandro J.

Pena, M.D.; Marc W. Bischof, M.D.; And

Physician Associates of Florida, Inc. is

still pending.

(c) the factual legal basis for

recovery . . . .

Medical malpractice claim arising out of the

birth of Jacqueline Jackson and injuries to

Tracie and Jacqueline Jackson.

These facts were not disputed and, consistent with the

undersigned's letter of December 6, 2004, and there being no

objection, judicial recognition was taken of these facts.

4/ In 2003, the Legislature amended the election of remedies

clause to read, as follows:

. . . 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 c ivil

action . . . .

Ch. 2003 - 416, § 75, Laws of Fla. However, the L egislature

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, given a civil case number of 2002 - CA - 6770 Div. 34,

Petitioners' notice of intent to initiate litigation was mailed

well prior to the September 15, 2003, effective date of the act.

Consequently, the provisions of Section 766.304, Florida

Statutes, as it existed prior to the 2003 amendments apply in

this case.

5/ Blank space in the original document.

6/ Here, Intervenors offered evidence of the routine practiced

by Eliz abeth Posey, R.N. (the advanced registered nurse

practitioner who interviewed Mrs. Jackson during her initial

visit), to support an inference that Mrs. Jackson was told that

all obstetricians in PAF were participants in the Plan. See

McKeithan v. HCA Heal th Services of Florida, Inc. , 879 So. 2d

47, 49 (Fla. 4th DCA 2004)("Although section 90.406, Florida

Statutes (2003), does not apply to the routine practice of an

individual, it is 'left to the court to determine as a matter of

circumstantial evidence whe ther there was sufficient probative

value to allow the admission of the habit evidence.'"); Charles

W. Ehrhardt, Florida Evidence § 406.1, at 267 (2004 ed.)(" W hen

dealing with the habits of a person which are offered to show

his conduct on a specific situa tion, as opposed to the routine

practice of a business organization or its employees, Florida

courts have held that habit evidence is admissible when it

corroborates other substantial evidence of the occurrence of the

event.")

7 / As for the effective d ate 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 ext ent 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 December 8, 1999, and the claim was filed August 15,

2003. Consequently, the amendments apply to this case.

COPIES FURNISHED:

(By certified mail)

Henry W. Jewett, II, Esquire

Jennings L. Hurt, III, Esquire

Rissman, Weisberg, Barrett,

Hurt, Donahue & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32801

Darryl L. Lewis, Esquire

Rosalyn Sia Baker - Barnes, Esquire

Christian D. Searcy, Esquire

Searcy, Denney, Scarola,

Barnhart & Shipley, P.A.

2139 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33409

M. Mark Bajalia, Esquire

V olpe, Bajalia, Wickes & Rogerson

1301 Riverplace Boulevard, Suite 1700

Jacksonville, Florida 32207

Terry C. Young, Esquire

Lowndes, Drosdick, Dostor,

Kantor and Reed, P.A.

215 North Eola Drive

Orlando, Florida 32801

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Alejandro J. Pena, M.D.

Marc W. Bischof, M.D.

c/o Jennings Hurt, Esquire

Rissman, Weisberg, Barrett,

Hurt, Donahue & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32802 - 4940

Orlando Regional Healthcare System

Arnold Palmer Hospital for Women and Children

92 West Miller Street

Orlando, Florida 32806

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

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 cop y,

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.