04-001006N Melva Pendergraft, As Parent And Natural Guardian Of Patrick Pendergraft, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 21, 2005.

Summary: While the claim was compensable, Petitioner was precluded from recovering an award of Plan benefits because she had recovered though settlement of a civil suit with the hospital for injuries associated with the infant`s birth.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVA PENDERGRAFT, as parent )

and natural guardian of PATRICK )

PENDERGRAFT, a minor, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1006N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

MIGUE L VENEREO, M.D., )

)

Intervenor. )

)

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 December 21, 2004, by

teleconference.

APPEARANCES

For Petitioner: William C. Ruggiero, Esquire

Law Office of William C. Ruggiero

200 East Broward Boulevard, Suite 1100

Fort Lauderdale, Florida 33301

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33 324

For Intervenor: Robert Murray, Jr., Esquire

George, Hartz, Lundeen, Fulmer,

Johnstone, King & Stevens

2866 East Oakland Park Boulevard

Fort Lauderdale, Flor ida 33306

STATEMENT OF THE ISSUES

1. Whether Patrick Pendergraft (Patrick), a minor,

qualifies for coverage under the Florida Birth - Related

Neurological Injury Compensation Plan (Plan).

2. If so, whether Petitioner's recovery, through settlement

of a civil suit for negligence against Memorial Hospital West,

the hospital at which Patrick was born, bars Petitioner from

receiving an award of Plan benefits.

PRELIMINARY STATEMENT

On March 19, 2004, Melva Pendergraft, on behalf of and as

parent and natural guardian of Patrick Pendergraft, a minor,

filed a petition (claim) with the Division of Administrative

Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

March 22, 2004, and on June 2, 2004, following an extension of

time within which to do so, NICA filed its response to the

petition, whereby it denied the claim was compensable and

requested a hearing be scheduled to resolve the issue of

compe nsability. Thereafter, Miguel Venereo, M.D., requested and

was accorded leave to intervene.

A hearing was initially scheduled for October 18 and 19,

2004, to resolve whether the claim was compensable. 1 However, on

July 12, 2004, NICA filed an Amended Not ice of Compensability,

wherein it acknowledged the claim was compensable, and on

September 10, 2004, a Supplement to Amended Notice of

Compensability, wherein it averred that, having received a

settlement in a civil suit against the hospital for injuries

a ssociated with Patrick's birth, Petitioner had "recovered," as

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

benefits. § 766.304, Fla. Stat. (1999)("An action may not be

brought under ss. 766.301 - 766.316 if the claimant recovers or

final judgment is entered.") 2 Consequently, an Amended Notice of

Hearing was issued that included, among the issues to be

resolved, the implications of Petitioner's settlement with the

hospital on her entitlement to an award of Plan benefits.

Thereafter, at th e parties' request, the hearing was rescheduled

for December 9 and 10, 2004, by video teleconference, and, again

at the parties' request, rescheduled for December 21, 2004, by

teleconference.

At hearing, the parties stipulated to the factual matters

set fo rth in paragraphs 1 - 4 of the Findings of Fact, and

Respondent's Exhibits 1 - 15 were received into evidence. No

witnesses were called, and no further exhibits were offered.

The transcript of the hearing was filed January 3, 2005, and

the parties were accor ded 10 days from that date to file proposed

orders. Respondent and Intervenor elected to file such a

proposal, and they have been duly considered.

FINDINGS OF FACT

Stipulated facts

1. Petitioner, Melva Pendergraft, is the natural mother and

guardian o f Patrick Pendergraft, a minor. Patrick was born a

live infant on May 8, 2000, at South Broward Hospital District,

d/b/a Memorial Hospital West, a licensed hospital located in

Pembroke Pines, Florida, and his weight exceeded 2,500 grams.

2. The physician providing obstetrical services during

Patrick's birth was Miguel Venereo, M.D., who, at all times

material hereto, was a "participating physician" in the Florida

Birth - Related Neurological Injury Compensation Plan, as defined

by Section 766.302(7), Florid a Statutes.

3. Patrick suffered an injury to the brain caused by oxygen

deprivation occurring in the course of labor, delivery, or

resuscitation in the immediate postdelivery period in the

hospital which rendered him permanently and substantially

mentally and physically impaired.

4. The hospital (Memorial Hospital West) and participating

physician (Dr. Venereo) complied with the notice provisions of

the Plan.

Coverage under the Plan

5. 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 . . . of a live infant

weighing at least 2,500 grams at birth caused by oxygen

deprivation . . . occurring in the course of labor, delivery, or

resuscitation in the immed iate 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.

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

otherwise compelling, that Patrick suffered such an 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 Memo rial Hospital West

7. On June 14, 2002, Melva Pendergraft, individually and as

natural parent and guardian of Patrick Pendergraft, a minor,

filed a complaint for damages on her own behalf, as well as her

minor son, against Robert Fields, M.D. (for acts o r omissions

during Ms. Pendergraft's prenatal care on January 10, 2000, and

May 5, 2000); Miguel Venereo, M.D. (for acts or omissions during

Ms. Pendergraft's prenatal care on January 10, 2000, and May 5,

2000, as well as during the course of Ms. Pendergra ft's labor and

Patrick's delivery on May 8, 2000); and South Broward Hospital

District, d/b/a Memorial Hospital West (for the acts or omissions

of Doctors Fields and Venereo, as well as others, on January 10,

2000, May 5, 2000, and May 8, 2000), in the Cir cuit Court of the

17th Judicial Circuit in and for Broward County, Florida, Case

No. 02 - 11798 CA 13.

8. Pertinent to this case, the complaint for damages

alleged the following facts giving rise to the suit:

10. On or about January 10, 2000, MELVA

PENDERG RAFT presented to MEMORIAL HOSPITAL

WEST in Broward County, Florida, with

complaints of cramping and spotting. She was

then thirty seven (37) years old, gravida I

and pregnant with an estimated confinement

date of April 27, 2000. ROBERT FIELDS, M.D.

and/ or MIGUEL VENEREO, M.D., was/were the

obstetrician(s)/gynecologist(s) assigned by

MEMORIAL HOSPITAL WEST as responsible for her

care and treatment on that date. However,

MELVA PENDERGRAFT was evaluated face - to - face

only by nursing employee(s) of MEMORIAL

HOSPITAL WEST, monitored for contractions and

sent home to "Go to Regional if any further

problems."

11. On or about May 5, 2000, MELVA

PENDERGRAFT again presented to MEMORIAL

HOSPITAL WEST with complaints of decreased

fetal movement and pelvic pain and was noted

to be pregnant with an estimated confinement

date of April 27, 2000. ROBERT FIELDS, M.D.

and/or MIGUEL VENEREO, M.D. was/were again

assigned by MEMORIAL HOSPITAL WEST as the

obstetrician(s)/gynecologist(s) responsible

for her care and treatment on that date.

However, again, MELVA PENDERGRAFT was

evaluated face - to - face only by a nursing

employee of MEMORIAL HOSPITAL WEST, who

documented only "pain on urination and muscle

pain" as her chief medical complaints. She

was placed on a fetal monitor an d then sent

home without further evaluation with

instructions, "Per DR. FIELDS, to follow - up

with DR. VENEREO on Monday, if she does not

go into labor this weekend."

12. On or about May 8, 2000, MELVA

PENDERGRAFT returned to MEMORIAL HOSPITAL

WEST in lab or and a cesarean section was

performed by MIGUEL VENEREO, M.D. for fetal

distress.

13. On or about May 8, 2000, PATRICK

PENDERGRAFT was delivered by cesarean section

in a severely and permanently brain - damaged

condition.

9. Count I of the complaint as serted a claim against

Dr. Fields, related to his care of Ms. Pendergraft on January 10,

2000, and May 5, 2000, for injuries suffered by Ms. Pendergraft

and Patrick. (Respondent's Exhibit 3, paragraphs 14 - 16, 35, and

36) T hat claim included the following allegations:

Plaintiff adopts and realleges Paragraphs 1

through 13, above, and further alleges:

14. As the treating obstetrician/gynecologist

responsible for the care and treatment of

MELVA PENDERGRAFT on or about January 10, 2000

and May 5, 2000, Defe ndant, ROBERT FIELDS,

M.D., owed a duty to Plaintiff, MELVA

PENDERGRAFT, to render medical care and

services commensurate with the prevailing

professional standard of care for similar

health care providers in this and like

communities.

15. Notwithstandin g this duty, Defendant

ROBERT FIELDS, M.D. did or failed to do one

or more of the following acts of omission or

commission:

(A) Negligently failed to take an adequate

and accurate history from MELVA PENDERGRAFT;

(B) Negligently failed to perform a phys ical

examination of MELVA PENDERGRAFT and to

assess her condition and the condition of her

unborn child, PATRICK PENDERGRAFT;

(C) Negligently failed to order necessary

and appropriate diagnostic studies for

MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

(D ) Negligently failed [to] obtain

appropriate consults from other medical

specialists to evaluate the condition of

MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

(E) Negligently failed to timely institute

the appropriate medical care and treatment

which was indicated in light of the medical

conditions of MELVA PENDERCRAFT and

PATRICK PENDERCRAFT;

(F) Negligently and recklessly relied upon

the evaluation of nursing personnel to

determine that MELVA PENDERGRAFT should be

discharged without further medical eva luation

or treatment;

(G) Negligently provided and/or approved

inadequate, inappropriate and/or misleading

discharge instructions to MELVA PENDERGRAFT;

and

(H) Other negligent acts of omission or

commission which may become known through

discovery.

16 . As a direct and proximate result of the

negligence of Defendant, ROBERT FIELDS, M.D.,

the Plaintiffs have sustained the damages

more particularly described below.[ 3 ]

10. Count II of the complaint asserted a claim against

Dr. Venereo, related to his ca re of Ms. Pendergraft on

January 10, 2000, May 5, 2000, and May 8, 2000, for injuries

suffered by Ms. Pendergraft and Patrick. (Respondent's

Exhibit 3, paragraphs 17 - 19, 35, and 36) That claim included the

following allegations:

Plaintiff adopts and real leges paragraphs 1

through 13, above, and further alleges:

17. As the treating obstetrician/gynecologist

responsible for the care and treatment of

MELVA PENDERGRAFT on or about January 10,

2000, May 5, 2000, May 8, 2000 and thereafter,

Defendant, MIGUEL VENEREO, M.D., owed a duty

to Plaintiff, MELVA PENDERGRAFT, to render

medical care and services commensurate with

the prevailing professional standard of care

for similar health care providers in this and

like communities.

18. Notwithstanding this duty, Defendant,

MIGUEL VENEREO, M.D., did or failed to do one

or more of the following acts of omission

and/or commission:

(A) Negligently failed to take an adequate

and accurate history from MELVA PENDERGRAFT;

(B) Negligently failed to perform a physical

e xamination of MELVA PENDERGRAFT and to

assess her condition and the condition of her

unborn child, PATRICK PENDERGRAFT;

(C) Negligently failed to order necessary

and appropriate diagnostic studies for

MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

(D) Negl igently failed [to] obtain

appropriate consults from other medical

specialists to evaluate the condition of

MELVA PENDERGRAFT and PATRICK PENDERGRAFT;

(E) Negligently failed to timely institute

the appropriate medical care and treatment

which was indicat ed in light of the medical

conditions of MELVA PENDERGRAFT and

PATRICK PENDERGRAFT;

(F) Negligently and recklessly relied upon

the evaluation of nursing personnel to

determine that MELVA PENDERGRAFT should be

discharged without further medical evaluation

or treatment on January 10, 2000 and/or on

May 5, 2000;

(G) Negligently provided and/or approved

inadequate, inappropriate and/or misleading

discharge instructions to MELVA PENDERGRAFT

on January 10, 2000 and/or on May 5, 2000;

(H) Negligently caused a delay or allowed a

delay in performing a STAT cesarean section

on May 8, 2000;

(I) Negligently managed MELVA PENDERGRAFT's

labor and delivery; and

(K) Other negligent acts of omission or

commission which may become known through

discovery.

19. As a direct and proximate result of the

negligence of Defendant, MIGUEL VENEREO,

M.D., the Plaintiffs have sustained the

damages more particularly described below.[ 4 ]

11. Counts III, IV, V, and VI of the complaint asserted a

claim against Memorial Hospital West, related to the care

provided Ms. Pendergraft on January 10, 2000, May 5, 2000, and

May 8, 2000, for injuries suffered by Ms. Pendergraft and

Patrick. (Respondent's Exhibit 3, paragraphs 20 - 36) Count III

included a claim of vicarious liability for the acts or omissions

of Doctors Fields and Venereo, among others, and included the

following allegations:

Plaintiff adopts and realleges paragraphs 1

through 13, above, and further alleges:

20. At all times material, Defendant,

MEMORIAL WEST, undertook a duty to provide

obstetric and gynecologic medical care and

services to Plaintiff in a manner

commensurate with the prevailing standard of

care for similar health care provider

hospitals in this and like communities.

21. This duty included the provision of

qualified physicians, nursing personnel and

other personnel, as well as medical services

to appropriately care for and treat its

obstetric patients and their unborn children,

including Plaintiffs, MELVA PENDERGRAFT and

PATRICK PENDERGRAFT.

22. This d uty further included the

maintenance and enforcement of hospital

policies and procedures which would assure

appropriate evaluation, monitoring and

management of its obstetric patients and

their unborn children, including Plaintiffs,

MELVA PENDERGRAFT and P ATRICK PENDERGRAFT.

23. Notwithstanding these duties, Defendant,

MEMORIAL HOSPITAL WEST, by and through its

actual and/or apparent agents, servants

and/or employees, did or failed to do one or

more of the following acts of omission or

commission:

(A) N egligently failed to take adequate and

accurate histories from MELVA PENDERGRAFT on

January 10, 2000, on May 5, 2000 and May 8,

2000;

(B) Negligently failed to perform and/or

timely perform a physical examination of

MELVA PENDERGRAFT by a qualified physi cian to

assess her condition and the condition of her

unborn child, PATRICK PENDERGRAFT on

January 10, 2000, on May 5, 2000 and on

May 8, 2000;

(C) Negligently failed to order and/or

timely order necessary and appropriate

diagnostic studies for MELVA PEN DERGRAFT and

PATRICK PENDERGRAFT;

(D) Negligently failed obtain appropriate

consults from other medical specialists to

evaluate the conditions of MELVA PENDERGRAFT

and PATRICK PENDERGRAFT;

(E) Negligently failed to timely institute

the appropriate medi cal care and treatment

which was indicated in light of the medical

conditions of MELVA PENDERGRAFT and

PATRICK PENDERGRAFT;

(F) Negligently and recklessly relied upon

and/or permitted the evaluation of nursing

personnel alone to determine that

MELVA PEND ERGRAFT should be discharged

without further medical evaluation or

treatment;

(G) Negligently provided and/or approved

inadequate, inappropriate and/or misleading

discharge instructions to MELVA PENDERGRAFT;

(H) Negligently delayed or caused a delay in

the performance of the STAT C - section on

May 8, 2000;

(I) Negligently and carelessly failed to

have in place policies and procedure[s] or

follow such policies and procedures in order

that appropriate diagnostic tests, studies

and treatment would be reco mmended, performed

and ordered to evaluate and diagnose the

conditions of MELVA PENDERGRAFT and PATRICK

PENDERGRAFT;

(J) Negligently failed to have in place

policies and procedures, or to follow

policies and procedures, with respect to

diagnosis, monitor ing and treatment of fetal

distress;

(K) Negligently managed MELVA PENDERGRAFT's

labor and delivery; and

(L) Other negligent acts of omission or

commission which may become know through

discovery.

24. As a direct and proximate result of the

negligen ce of MEMORIAL WEST, Plaintiffs have

sustained the damages more particularly

described below.[ 5 ]

12. A settlement was reached in the civil suit with

Memorial Hospital West for $100,000.00, the sovereign immunity

limit, and with Dr. Fields for $250,000.00 , the limit of his

insurance coverage. (Respondent's Exhibit 4) That settlement

was approved by court O rder of May 17, 2004, and A mended O rder of

May 24, 2004. (Respondent's Exhibit 8) Thereafter, given the

consummation of the settlement agreement, and with the parties'

agreement, the court dismissed the case against Memorial Hospital

West, by O rder of July 6, 2004, and against Dr. Fields, by O rder

of July 8, 2004. (Respondent's Exhibits 9 - 12) Apparently, the

case against Dr. Venereo remains pending. Of note,

Ms. Pendergraft executed a full and final Release of All Claims

as to Memorial Hospital West. (Respondent's Exhibits 13).

CONCLUSIONS OF LAW

Jurisdiction

13. 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

14. 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) Wh ether 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 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 obstetr ical 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 concludes that the "infant has sustained

a birth - related neur ological injury and that obstetrical services

were delivered by a participating physician at the birth."

§ 766.31(1), Fla. Stat.

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

Section 766.302(2), Florida Statutes, to mean:

. . . injury to the brai n 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 in fant 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.

16. Here, it has been established that Dr. Venere o, the

physician who provided obstetrical services at Patrick's birth,

was a "participating physician," and that Patrick suffered a

"birth - related neurological injury." Consequently, the claim is

covered by the Plan, and the administrative law judge is re quired

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

Petitioner is barred from pursuing an award because she recovered

damages, through settlement of a civil action against Memorial

Hospital West for medical malpractice associated with Patri ck's

birth. §§ 766.304, 766.309, and 766.31, Fla. Stat.

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

17. 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.

18. The Plan is a subs titute, 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). Regard ing 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

p ersonal 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 resuscitation

during which such injury occurs, arising out

of or r elated 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.

19. Effective Jul y 1, 1998, the Legislature adopted Chapter

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

766.304, Florida Statutes. 6 Pertinent to this case, the

amendments (underlined) to Sections 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

warrant the establishment of a limited system

of compensation irres pective 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 deter mine 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 t o 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 entit led 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

under ss. 766.301 - 766.316 if the claimant

recovers or final jud gment is

entered . . . . [ 7 ]

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

20. By the amendments to Sections 766.301 and 766.304,

Florida Statutes, the Legislature reacted "adversely to the

result reached 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 exclusively in the administrative forum. O'Leary v.

Florida Birt h - 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 recover s 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 Neurological 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. Romine v. Florida Birth -

Related Neurological Injury Compensatio n 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 that if a claimant

persists and "recovers or final judgme nt is entered," 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.")

21. Here, given the pleadings in the civil suit, and there

being no proof to the contrary, Petitioner received a settlement

with Memorial Hospital West, at least in part, for injuries

as sociated with Patrick's birth. Therefore, Petitioner has

"recovered," as that word is commonly understood. 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

mean ing, 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 610, 612 (Fla.

1994)("Administrative ag encies have the authority to interpret

the laws which they administer, but such interpretation cannot be

contrary to clear legislative intent.") Consequently, while

Patrick suffered an injury covered by the Plan, Petitioner is not

entitled to an award of Plan benefits. 8

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Melva Pendergraft, on behalf of and as parent and natural

guardian of Patrick Pendergraft, a minor, qualifies for coverage

under the Plan; however, given Petitioner's recovery from

Memorial Hospital West, she may not pursue or recover an award of

Plan benefits.

DONE AND ORDERED this 21st 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 the

Division of Administrative Hearings

this 21st day of January, 2005.

ENDNOTES

1/ Initially, notice was also at issue, and was likewise noticed

for hearing; however, as appears more fully i n the Findings of

Fact, the parties subsequently agreed that the hospital and the

participating physician complied with the notice provisions of

the Plan. § 766.316, Fla. Stat.

2/ In 2003, the Legislature amended Section 766.304, Florida

Statutes, to re ad, 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 Legislatu re

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, Petitioner's notice of intent to initiate litigation was

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

the act. (Respondent's Exhibit 3) Consequently, the provisions

of Section 766.304, Florida Statutes, as they existed prior to

t he 2003 amendments apply in this case.

3/ The damages sustained by Patrick and Ms. Pendergraft were set

forth in paragraphs 35 and 36 of the Complaint for Damages

(Respondent's Exhibit 3), as follows:

CLAIM FOR DAMAGES COMMON TO ALL COUNTS

CLAIM FOR PA TRICK PENDERGRAFT

35. As a direct and proximate result of the

negligence of the Defendants and the

violations of 42 U.S.C.A. 1395(dd) and Fla.

Stat. Sec. 395.1041, as set forth in the

preceeding Counts, PATRICK PENDERGRAFT has in

the past and will in t he future suffer the

following damages:

a. bodily injury, including permanent brain

damage;

b. pain and suffering;

c. disability;

d. disfigurement;

e. mental anguish;

f. loss of the capacity for the enjoyment of

life;

g. medical and other hea lth care related

expenses;

h. lost earnings and loss of wage earning

capacity;

i. rehabilitation expenses;

j. aggravation of a preexisting condition.

* * *

CLAIM FOR MELVA PENDERGRAFT

36. As a direct and proximate result of the

negligence of the Defendants and the

violations of 42 U.S.C.A. 1395(dd) and Fla.

Stat. Sec. 395.1041, as set forth in the

preceeding Counts, which caused a

significant, serious and permanent total

disability to PATRICK PENDERGRAFT, her

natural child, MELVA PENDERGRAFT h as in the

past and will in the future suffer the

following damages:

a. permanent loss of services, comfort,

society, attention and affections of PATRICK

PENDERGRAFT;

b. medical, hospital, rehabilitation and

related expenses in the past and in the

futur e until PATRICK PENDERGRAFT reaches the

age of majority; and thereafter on account on

his permanent total disability.

4/ Ibid .

5/ Ibid .

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

Section 6, Laws of Florida, provided that "[t]h e 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. Flo rida 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 ma de a

civil recovery (through settlement of a civil suit), was not

constitutionally permissible. Here, the child was born May 8,

2000, and the claim was filed March 19, 2004. Consequently, the

amendments apply to this case.

7/ Ibid ., endnote 2.

8/ I f Plan immunity is a defense to a civil suit when, as here,

a claimant recovers from less than 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

coverag e, even though an award would be inappropriate.

COPIES FURNISHED:

(By certified mail)

William C. Ruggiero, Esquire

Law Office of William C. Ruggiero

200 East Broward Boulevard, Suite 1100

Fort Lauderdale, Florida 33301

David W. Black, Esquire

Frank, W einberg & Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

C. Robert Murray, Jr., Esquire

George, Hartz, Lundeen, Fulmer,

Johnstone, King & Stevens

2866 East Oakland Park Boulevard

Fort Lauderdale, Florida 33306

Miguel Venereo, M.D.

14700 Sunset Lane

Southwest Ranches, Florida 33330

Memorial Hospital West

703 Flamingo Road

Pembroke Pines, Florida 33028

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 af fected by this F inal O rder 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 n otice of appeal with the Agency Clerk of

the Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

Birth - Related Neur ological 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.