03-003587N Nicodemo Macri And Joni M. Macri, Individually, And As Parents, Natural Guardians And Personal Representatives Of The Estate Of Jena Macri, Deceased vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, March 5, 2004.

Summary: Petitioners were not entitled to an award, even though the claim qualified for coverage. Petitioners had already recovered an arbitration award against the hospital for the wrongful death of the infant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICODEMO MACRI AND JONI M. )

MACRI, individually, and as )

parents, natural guardians and )

P ersonal R epresentatives of the )

E state of JENA MACRI, deceased, )

)

Petitioners, )

)

vs. ) Case No. 03 - 3587N

)

FLORIDA BIRTH - RELATED )

NEU ROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

RACHEL DEPART, CNM; DAVID )

O'BRYAN, M.D.; and CLEMENTS AND )

ASHMORE, P.A., d/b/a NORTH )

FLORIDA WOMEN'S CARE, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

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

a hearing in the above - styled case on February 3, 2004, in

Tallahassee, Florida.

APPEARA NCES

For Petitioners: Donald M. Hinkle, Esquire

Hinkle & Foran

1545 Raymond Diehl Road, Suite 150

Tallahassee, Florida 32308

For Respondent: Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 32301

For Intervenor Rachel Depart, C.N.M.:

Harold R. Mardonborough, Jr., Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Post Office Box 2174

Tallahassee, Florida 32316 - 2174

For Intervenors David O'Bryan, M.D., and Clements and

Ashmore, P.A., d/b /a North Florida Women's Care:

Rogelio J. Fontela, Esquire

Robert G. Churchill, Jr., Esquire

Dennis, Bowman, Jackson, Martin

& Fontela, P.A.

P ost Office Box 15589

Tallahassee, Florida 32317 - 5589

STATEMENT OF THE ISSUES

1. Whether Jena Macri (Jena), a deceased minor, qualifies

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

2. If so, whether Petitioners are entitled to an award of

Plan benefits, given the arbitration award they recovered

against Tallahassee Memorial Hospital for damages associated

with Jena's death.

3. Whether the notice provisions of the Plan were

satisfied.

PRELIMINARY STATEMENT

On October 1, 2003, Nicodemo Macri and Joni M. Macri,

individually, and as parents, natural guardians and Personal

Representatives of the Estate of Jena Macri, deceased, filed a

petition (claim) with the Division of Administrative He arings

(DOAH) for compensation under the Florida Birth - Related

Neurological Injury Compensation Plan. The impetus for filing

the claim was stated in the petition to be, as follows:

PRIOR PROCEEDING

7. A Presuit Notice of Intent to Initiate

Medical Malpr actice Action was filed on

July 8, 2002, naming Dr. O'Bryan and TMH.

Subsequent notice was sent to Rachel Depart,

CNM on August 20, 2002. TMH admitted fault

and same was submitted to Medical

Arbitration, Case Number: 02 - 4743MA. A

copy of the Arbitratio n Award is attached

. . . . Thus Petitioners have successfully

pursued a tort claim arising out of Jena

Macri's death and have recovered. They are

not eligible to seek NICA benefits.

8. Suit was filed for wrongful death

against O'Bryan and Depart[.] A Motion to

Stay was granted[.] Clearly Claimants are

not entitled to NICA benefits or the

respondents to NICA exclusivity. However,

the Defendants O'Bryan and Depart have

insisted on this tribunal making these

determinations.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

October 2, 2003, and on November 25, 2003, NICA filed its

response to the petition and agreed Jena suffered a compensable

injury; however, because Petitioners had previously recovered an

arbitration award, NICA averred an award was not appropriate.

In the meantime, Rachel Depart, C.N.M.; David O'Bryan, M.D.; and

Clements and Ashmore, P.A., d/b/a North Florida Women's Care,

were accorded leave to intervene.

At the hearing held on February 3, 2004, Respondent called

Donald C. Willis, M.D., a physician board - certified in

obstetrics and gynecology, and maternal - fetal medicine, as a

witness. Petitioners' Exhibits 1A - G and 2, as well as

Respondent's Exhibit 1, were rece ived into evidence. No other

witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed February 11, 2004,

and the parties were accorded 15 days from that date to file

proposed orders or memoranda. The parties el ected to file such

proposals or memoranda and they have been duly considered.

FINDINGS OF FACT

Findings related to compensability

1. Nicodemo Macri and Joni M. Macri are the natural

parents of Jena Macri, a deceased minor, and the P ersonal

R epresentativ es of their deceased daughter's estate. Jena was

born a live infant on March 6, 2001, at Tallahassee Memorial

Healthcare, Inc., d/b/a Tallahassee Memorial Hospital, a

hospital located in Tallahassee, Florida, and her birth weight

exceeded 2,500 grams.

2. The physician providing obstetrical services at Jena's

birth was David O'Bryan, M.D., who was, at all times material

hereto, a "participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes (2000). 1 Rachel Depart, C.N.M.,

also provided obstetrical services at Jena's birth. 2

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. Stat.

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

otherwise compelling, that Jena suffered a severe brain injury

caused by oxygen deprivation occurring in the course of labor,

delivery, or resuscitation in the immediate postdelivery period

in the hospital, which rendered her permanently and

substantially mentally and physically impaired, and which,

following removal from life support, led inevitably to her death

on March 7, 2001. Consequ ently, the proof demonstrates that

Jena suffered a "birth - related neurological injury" and, since

obstetrical services were provided by a "participating

physician" at birth, the claim is covered by the Plan.

§§ 766.309(1) and 766.31(1), Fla. Stat.

Findi ngs related to the arbitration award

5. In response to Petitioners' Notice of Intent to File a

Medical Malpractice action for the wrongful death of Jena,

Tallahassee Memorial Hospital agreed to admit liability and to

arbitrate the claim pursuant to Secti on 766.207, Florida

Statutes.

6. Arbitration was held on June 23, 2003, in Tallahassee,

Florida, and on July 1, 2003, the arbitration award was signed

by the chief arbitrator. As entered, the arbitration award

provided:

AWARD

At the conclusion of the ar bitration

hearing, the following award was agreed to

by all arbitrators:

1. Claimants Nicodemo Macri and Joni Macri,

jointly, are awarded economic damages of

$18,944.61 for medical expenses

($12,397.65), funeral expenses ($5,515.00),

and costs of probate ($1,031.96) associated

with the birth and death of their child,

Jena Macri. Section 766.207(7)(a), Florida

Statutes.

2. The claim of Nicodemo Macri for loss of

earnings is denied.

3. Claimants Nicodemo Macri and Joni Macri,

jointly, are awarded econo mic damages of

$13,360.00, which represents the present

value for loss of services of their child,

Jena Macri. Section 766.207(7)(a), Florida

Statutes. Provided appropriate security is

posted, such sum is to be paid in six equal

installments, over a six - year period, with

the first installment due within 20 days

from the date of this award and an equal sum

each year thereafter. Absent appropriate

security, such award shall be paid in lump

sum. Sections 766.202(8), 766.207(7)(c),

and 766.211, Florida Stat utes.

4. Claimant Nicodemo Macri is awarded

noneconomic damages of $125,000.00 and

Claimant Joni Macri is awarded noneconomic

damages of $125,000.00. Section

766.207(7)(b), Florida Statutes.

5. Claimants Nicodemo Macri and Joni Macri,

as Personal Repr esentatives of the Estate of

Jena Macri, deceased, are awarded economic

damages of $1,188,022.00, which represents

80 percent of the present value of lost

earning capacity for Jena Macri, deceased.

Section 766.207(7)(a), Florida Statutes.

Provided approp riate security is posted,

such sum is to be paid in six equal

installments, over a six - year period, with

the first installment due within 20 days

from the date of this award and an equal sum

each year thereafter. Absent appropriate

security, such award sh all be paid in lump

sum[]. Sections 766.202(8), 766.207(7)(c),

and 766.211, Florida Statutes.

6. Defendant shall pay Claimants' the sum

of $165,968.64, 1 which represents the

Claimants' reasonable attorney's fees

($150,000.00) and costs ($15,968.64). 2

S ection 766.207(7)(f), Florida Statutes.

In addition to the foregoing, the Defendant

shall pay each arbitrator, other than the

administrative law judge, a fee of

$1,600.00, ($200.00 an hour, for 8 hours),

and the cost of the court reporter. 3 Section

766.2 07(7)(g), Florida Statutes.

DONE AND ENTERED this 1st day of July, 2003,

in Tallahassee, Leon County, Florida.

(Endnotes omitted)[ 3 ]

7. Regarding the status of that award, the parties have

stipulated that "[p]ortions of the award against Tallahassee

M emorial have been paid but the award is subject to an appeal

currently pending in Florida's First District Court of Appeal."

Findings related to notice

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

Petitioners have responded to the health car e providers' claim

of Plan immunity by averring that the health care providers

failed to give notice as required by the Plan. Consequently, it

is necessary to resolve whether the health care providers gave

the required notice. O'Leary v. Florida Birth - Re lated

Neurological Injury Compensation 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

Universi ty of Miami v. M.A. , 793 So. 2d 999 (Fla. 3d DCA 2000).

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 Administra tive Hearings , 29 Fla. L. Weekly D216

(Fla. 2d DCA Dec. 17, 2003)(same); and Florida Birth - Related

Neurological Injury Compensation Association v. Ferguson , 29

Fla. L. Weekly D226a (Fla. 2d DCA Jan. 14, 2004)(same).

9. Pertinent to this case, during t he time of Mrs. Macri's

prenatal care at Clements and Ashmore, P.A., d/b/a North Florida

Women's Care, the practice with which Dr. O'Bryan was

associated, as well as at the time of Jena's birth, Section

766.316, Florida Statutes, prescribed the notice prov isions of

the Plan, as follows:

Each hospital with a participating physician

on its staff and each participating

physician . . . 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 the 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 p atient has an emergency medical

condition as defined in s. 395.002(9)(b) or

when notice is not practicable.

10. Here, the parties have stipulated that Mrs. Macri was

provided notice that David O'Bryan, M.D., was a participant in

the Florida Birth - Related Neurological Injury Compensation Plan,

but that neither Mr. Macri nor Mrs. Macri was provided

predelivery notice by Tallahassee Memorial Hospital. The

parties have further stipulated that the hospital's failure to

give notice was not due to an emergency medical condition or

because the giving of notice was not practicable. Consequently,

it has been established that, with regard to the participating

physician, the notice provisions of the Plan were satisfied, but

with regard to the hospital they were not.

CONCLUSIONS OF LAW

Jurisdiction

11. The Division of Administrative Hearings has

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

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

Compensability

12. 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 admin istrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presump tion 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 postde livery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has

sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at the birth." § 766.31(1), Fla. Stat.

13 . "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

immediate postdelivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

14. Here, it has been established that Dr. O'Bryan, a

physician who provided obstetrical services at Jena's birth, was

a "participating physician," and that Jena suffered a "birth -

r elated" neurological injury. Consequently, the claim is

covered by the Plan, and the administrative law judge is

required to make an award of compensation unless, as alleged by

NICA, Petitioners are barred from pursuing an award because they

recovered an arbitration award against the hospital for the

wrongful death of Jena. §§ 766.304, 766.309, and 766.31, Fla.

Stat.

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

15. The Florida Birth - Related Neurological Injury

Compensation Plan was enacted by t he 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); § 76 6.301(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.

16. 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 As sociation 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 shall exclude all other

rights and remedies of such infant, his

personal representatives, parents,

dependents, and next of kin, at common law

or otherwise, against any person or entity

directly involved with the labor, delivery,

or immediate postdelivery resusc itation

during which such injury occurs, arising out

of or related to a medical malpractice claim

with respect to such injury; except that a

civil action shall not be foreclosed where

there is clear and convincing evidence of

bad faith or malicious purpose or willful

and wanton disregard of human rights,

safety, or property, provided that such suit

is filed prior to and in lieu of payment of

an award under ss. 766.301 - 766.316. Such

suit shall be filed before the award of the

division becomes conclusive and binding as

provided for in s. 766.311.

17. Effective July 1, 1998, the Legislature adopted

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

and 766.304, Florida Statutes. 4 Pertinent to this case, the

amendments (underlined) to Sections 7 66.301 and 766.304, Florida

Statutes, were, as follows:

766.301 Legislative findings and intent. --

(1) The Legislature makes the following

findings:

* * *

(d) The costs of birth - related neurological

injury claims are particularly high and

warrant the establishment of a limited

system of compensation irrespective of

fault. The issue of whether such claims are

covered by this act must be determined

exclusively in an administrative proceeding.

* * *

766.304 Administrative law judge to

determine claims. -- The administrative law

judge shall hear and determine all claims

filed pursuant to ss. 766.301 - 766.316 and

shall exercise the full power and authority

granted to her or him in chapter 120, as

necessary, to carry out the purposes of such

sections. The administrative law judge has

exclusive jurisdiction to determine whether

a claim filed under this act is compensable.

No civil action may be brought until the

determinations under s. 766.309 have been

made by the administrative law judge. If

the adm inistrative 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 unde r ss. 766.301 - 766.316 if the

claimant recovers or final judgment is

entered . . . . [ 5 ]

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

18. 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 resolved that a claimant could receive the

proceeds of a settlement with the defendants in a civil suit and

still pursue a claim for benefits under the Plan. Romin e 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

jurisdictio n to determine whether a claim . . . is compensable,"

that "[n]o civil action may be brought . . . [or continued, if

Plan exclusivity is raised as a defense] until the

determinations under s. 766.309 have been resolved by the

administrative law judge," and that if a claimant persists and

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

he may not pursue an award under the Plan.

19. Here, Petitioners do not dispute that, having received

an arbitration award against Tallahassee Memorial Hospi tal for

damages associated with Jena's death, they have "recovered," as

that word is commonly understood, and are not entitled to Plan

benefits. See Holly v. Auld , 450 So. 2d 217, 219 (Fla.

1984)("When the language of the statute is clear and unambiguous

and conveys a clear and definite meaning, there is no occasion

for resorting to the rules of statutory interpretation and

construction; the statute must be given its plain and obvious

meaning."); Abramson v. Florida Psychological Association ,

634 So. 2d 61 0, 612 (Fla. 1994)("Administrative agencies have

the authority to interpret the laws which they administer, but

such interpretation cannot be contrary to clear legislative

intent.") Rather, Petitioners contend that, given the manner in

which the L egislatu re phrased the election of remedies clause

contained in Section 766.304, Florida Statutes (2000), ("An

action may not be brought under ss. 766.301 - 766.316 if the

claimant recovers or final judgment is entered."), the Division

of Administrative Hearings is without jurisdiction to resolve

whether the claim would otherwise qualify for coverage under the

Plan. Here, Petitioners' contention must be rejected.

20. If Plan immunity is a viable defense to a civil suit

when, as here, a claimant recovers from less t han all health

care providers, it is necessary, given DOAH's exclusive

jurisdiction over the matter, for the administrative law judge

to address the issue of coverage, even though an award would be

inappropriate. Consequently, the 1998 amendments to Secti ons

766.301 and 766.304, Florida Statutes, which mandated that

coverage be resolved exclusively in the administrative forum,

and which adopted an election of remedies clause, must be read

in pari materia , and harmonized, to give effect to the

Legislature's intention. Forsythe v. Longboat Key Beach Erosion

Control District , 604 So. 2d 452, 455 (Fla. 1992)("It is

axiomatic that all parts of a statute must be read together in

order to achieve a consistent whole . . . Where possible, courts

must give effect to all statutory provisions and construe

related statutory provisions in harmony with one another.");

Florida Jai Alai, Inc. v. Lake Howell Water & Reclamation

District , 274 So. 2d 522, 524 (Fla. 1973)("[A] statute should be

construed and applied so as to gi ve effect to the evident

legislative intent, even if it varies form the literal meaning

of the statute . . . Legislative intent should be gathered from

consideration of the statute as a whole rather than from any one

part thereof."); Weitzel v. State of Fl orida , 306 So. 2d 188,

192 (Fla. 1st DCA 1975)("It is fundamental that words, phrases,

clauses, sentences and paragraphs of a statute may not be

construed in isolation, but that on the contrary a statute must

be construed in its entirety.")

21. Alternativ ely, if coverage is considered, which it has

been, Petitioners have requested that the following question be

addressed:

Under Section 766.309(1)(c), the order

should address the question of whether a

payment will be due at the damages phase of

the claim. A Circuit Judge ruling upon the

exclusivity issue should know whether an

alternative recovery is possible under the

law. It is NICA's position that the final

judgment and tort recovery precludes an

award of compensation. If Petitioners are

not entitled to compensation, the claim is

by definition not compensable. This should

be clearly stated so that those ruling upon

exclusivity will know there is no

alternative recovery available with respect

to the negligence of the physician (and

possibly the midwife ) that caused the death

of Petitioners' daughter.

(Petitioners' Post Hearing Memorandum, at p. 2) In contrast,

Intervenors request a ruling that they are entitled to Plan

immunity in the civil action.

22. Here, the claim is a compensable (covered) injur y.

However, Petitioners, because of the arbitration award they

recovered against Tallahassee Memorial Hospital for damages

associated with Jena's death, are not entitled to an award of

Plan benefits. As for Intervenors' claim for Plan immunity in

the civ il action, that is not a matter within the jurisdiction

of the Division of Administrative Hearings to resolve. See

Gugelmin v. Division of Administrative Hearings , 815 So. 2d 764

(Fla. 4th DCA 2002); Bayfront Medical Center, Inc. v. Division

of Administra tive Hearings , 841 So. 2d 626 (Fla. 2d DCA 2003);

All Children's Hospital, Inc. v. Department of Administrative

Hearings , supra ; Florida Health Sciences Center, Inc. v.

Division of Administrative Hearings , supra ; Florida Birth -

Related Neurological Injury C ompensation Association v.

Ferguson , supra .

Constitutional issues

23. As for the constitutional issues raised by

Petitioners, the Division of Administrative Hearings has no

jurisdiction to address them. Florida Hospital v. Agency for

Health Care Adminis tration , 823 So. 2d 844, 849 (Fla. 1st DCA

2002)("Administrative agencies lack the power to consider or

determine constitutional issues.")

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensa tion filed by

Nicodemo Macri and Joni M. Macri, individually, and as parents,

natural guardians, and Personal Representatives of the Estate of

Jena Macri, deceased, qualifies for coverage under the Plan;

however, given Petitioners' recovery from Tallahasse e Memorial

Hospital, they may not pursue or recover an award of benefits.

It is further ORDERED that with regard to the participating

physician, the notice provisions of the Plan were satisfied, but

with regard to the hospital they were not.

DONE AND ORDE RED this 5th day of March, 2004, 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 SUNC OM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 5th day of March, 2004.

ENDNOTES

1/ All citations are to Florida Statutes (2000) unless

otherwise indicated.

2/ At the ti me, C.N.M. Depart had not paid the assessment

required for a certified nurse midwife to participate in the

Plan. § 766.314(4)(c), Fla. Stat.

3/ Endnote 1 noted that "[t]he parties stipulated to the amount

awarded as attorney's fees and costs, and that s tipulation was

approved by the arbitrators during a telephone conference on

July 1, 2003." Endnote 3 noted that "[t]he parties stipulated

to the rate of compensation for the arbitrators."

4/ As for the effective date of the amendments, Chapter 98 - 113,

S ection 6, Laws of Florida, provided that "[t]he amendments to

sections 766.301 and 766.304, Florida Statutes, shall take

effect July 1, 1998, and shall apply only to claims filed on or

after that date and to that extent shall apply retroactively

regardless of date of birth." However, in Romine v. Florida

Birth - Related Neurological Injury Compensation Association , 842

So. 2d 148 (Fla. 5th DCA 2003), the court resolved that

retroactive application of the amendment to a child born prior

to its effective date, to preclude a NICA claim when the

claimant made a civil recovery (through settlement of a civil

suit), was not constitutionally permissible. Here, the child

was born March 6, 2001, and the claim was filed October 1, 2003.

Consequently, the amendments ap ply to this case.

5/ 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 civil

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 liti gation is mailed on or after

the effective date of this act." Ch. 2003 - 416, § 86, Laws of

Fla. Here, Petitioners' notice of intent to initiate litigation

was mailed well prior to the September 15, 2003, effective date

of the act. Consequently, the provi sions of Section 766.304,

Florida Statutes, as it existed prior to the 2003 amendments

apply in this case.

COPIES FURNISHED:

(By certified mail)

Rogelio J. Fontela, Esquire

Robert Churchill, Esquire

Dennis, Bowman, Jackson, Martin & Fontela, P.A.

Post O ffice Box 15589

Tallahassee, Florida 32317 - 5589

Donald M. Hinkle, Esquire

Hinkle & Foran

1545 Raymond Diehl Road, Suite 150

Tallahassee, Florida 32308

Ronald A. Labasky, Esquire

Landers & Parsons, P.A.

310 West College Avenue

Tallahassee, Florida 3230 1

Harold R. Mardonborough, Jr., Esquire

McFarlain & Cassedy, P.A.

305 South Gadsden Street

Post Office Box 2174

Tallahassee, Florida 32316 - 2174

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308

Tallahassee Memorial Healthcare, Inc.

1300 Miccosukee Road

Tallahassee, Florida 32308

David O'Bryan, M.D.

North Florida Women's Care

1401 Centerville Road, Suite 202

Tall ahassee, Florida 32308

Rachel Depart, C.N.M.

North Florida Women's Care

1401 Centerville Road, Suite 202

Tallahassee, Florida 32308

Ms. Charlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE O F RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 76 6.311,

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.