06-003883N Janell Coble And David Coble, As Natural Parents And Legal Guardians Of Jory Coble, A Minor, And Individually vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, January 13, 2012.

Summary: De facto election of remedies by claimant who prevailed in circuit court was recognized and effectuated by a DOAH Final Order.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANELL COBLE AND DAVID COBLE, )

as natural parents and legal )

guardians of JORY COBLE, a )

minor, and individually , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 3883N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATI ON , )

)

Respondent, )

)

and )

)

WELLINGTON REGIONAL MEDICAL )

CENTER, INC. , AND OB/GYN )

SPECIALISTS OF THE PALM )

BEACHES, )

)

Intervenor s . )

)

FINAL ORDER

This cause came on for consideration upon Respondent NICA's

Motion to Determine that NICA is Not Required to Pay an Award in

This Case and to Close Administrative Proceeding (Motion) ,

served and filed November 29, 2011, and the Order to Show Cause

entere d December 19, 2011.

FINDINGS OF FACT

1. By an Order on Compensability and Notice entered May 4,

2007, and an Order Correcting Scrivener Error entered May 8,

2007, the ALJ determined that Petitioners ' claim against NICA

was compensable and that appropriat e notice , pursuant to section

766.316, Florida Statutes, had not been given by Wellington

Regional Medical Center. On October 10, 2008, the ALJ's May 4,

2007/ May 8, 2007, Order was per curiam affirmed by the First

District Court of Appeal. On June 4, 200 9, the parties filed a

fully - executed Stipulation for Entry of Award, and agreed, among

other things, that

* * *

. . . it is acknowledged that the

Petitioners may pursue a State Court medical

malpractice action against Wellington

Regional Medical Center , Inc. . . . At such

time as it is appropriate, the Petitioners

may make an Election of Remedies, if

required by law, which Petitioners dispute,

within the State Court proceeding as to

whether to accept payment of benefits under

this Award, or recovery un der the State

Court medical malpractice action.

3. Until such time that it is determined

whether or not an Election of Remedies is

necessary and if so, until such time as

Petitioners have made an Election of

Remedies, and properly notified NICA, NICA

sha ll not be required to pay any portion of

this Award.

* * *

2. A Final Order Approving Stipulation for Entry of Award

was entered on June 4, 200 9 .

3. On November 29, 2011, Respondent NICA served and filed

its Motion. By its M otion and the documentati on attached to the

M otion , NICA demonstrated that Petitioners obtained state

circuit court approval of a civil settlement with Wellington

Medical Center, Inc., and alleg ed that , as a result of that

state court settlement, Petitioners are barred from recove ry

under the NICA Plan.

4. Petitioners did not file a response to NICA's M otion,

so in an abundance of caution, on December 19, 2011, an Order to

Show Cause was entered , which provided , in part :

This cause came on for consideration

upon the Florida Birth - Related Neurological

Injury Compensation AssociationÓs Motion to

Determine that NICA Is Not Required to Pay

an Award in This Case and to Close

Administrative Proceeding, served and filed

November 29, 2011, to which no timely

response in opposition has bee n filed.

Respondent NICA, by its foregoing

pleading and attached exhibits, has

established a prima facie case that

Petitioners Janell Coble and David Coble,

individually and on behalf of Jory Coble, a

minor, (Petitioners and claimants before

DOAH), have recovered some amount of money,

either by settlement or final judgment, in a

civil action arising from the labor,

delivery, or immediate post - delivery

resuscitation of Jory Coble in a hospital.

* * *

Inasmuch as section 766.304, Florida

Statutes, is clear that, " . . . An award

may not be made or paid under ss. 766.301 -

766.316 if the claimant recovers under a

settlement or final judgment is entered in a

civil action. . . ." RespondentÓs pending

motion, seeking an order determining that

NICA is not required to pay an award in this

case appears well - taken.

However, in an abundance of caution,

Petitioners and Intervenors are granted to

and until January 3, 2012, to show cause why

the relief sought by Respondent should not

be granted.

Failure of all parties to timely show

good cause will result in a final order

finding that Petitioners have, in effect,

already made an election against receiving

NICA benefits by accepting a settlement from

other entities (Wellington Regional Medical

Center, Inc., a n Intervenor herein) and

providing that, pursuant to section 766.304,

NICA owes nothing to Petitioners, and shall

pay nothing to Petitioners, as the result of

the Final Order on Compensability and Notice

entered May 4, 2007, as amended by that

certain Orde r Correcting Scrivener Error

entered May 8, 2007, which Order was

subsequently per curiam affirmed by the

First District Court of Appeal.

5. No party has shown any ca use why the requested final

order should not be entered , nor has any party shown reason to

doubt NICA's allegation, with supporting documentation, that

Petitioners have recovered some amount of money from a civil

action arising from the labor, delivery, or resuscitation in the

immediate postdelivery period associated with Jory Coble 's

birth .

6. Accordingly, it is determined that Petitioners have

recovered an amount of money, either by settlement or final

judgment in Janell Coble and David Coble, as Natural Parents and

Guardians of Jory Coble, a Minor, Individually v. Wellington

Regional Medic al Center, Inc. , Case No. 2006 CA 0003239AG , in

the Circuit Court of the Fifteenth Judicial Circuit In and For

Palm Beach County, Florida , from or against Wellington Medical

Center, Inc., the hospital wherein Jory was born and an

Intervenor herein .

7. Pet itioners made a de facto election against receiving

the NICA benefits provided - for in the Final Order entered on

May 4, 2007, as amended by the Order Correcting Scrivener Error

entered May 8, 2007, which was per curiam affirmed on appeal .

CONCLUSIONS OF LA W

8 . The Division of Administrative Hearings has

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

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

9 . Section 766.304, Florida Statutes, in effect at the

time of Jory Coble's birth on Februar y 18, 2004, and at all

times thereafter to date, has provided, in pertinent part:

. . . An award may not be made or paid

under §§ 766.301 - 766.316 if the claimant

recovers under a settlement or a final

judgment is entered in a civil action. . . .

10 . Peti tioners, having recovered in a circuit court

medical malpractice action against Intervenor Wellington

Regional Medical Center, are precluded from recovery of an award

against NICA .

11. The d etermination of exclusivity and immunity are

reserved to the ci rcuit court. S ee Gugelmin v. Fla. Birth -

Related Neurological Injury Comp. Ass'n , 882 So. 2d 517 (Fla.

4th DCA 2004); Romine v. Fla. Birth - Related Neurological Injury

Comp. Ass'n , 842 So. 2d 148 (Fla. 5th DCA 2003). The parties'

Stipulation for Entry of A n Award herein contemplated

Petitioners applying to the circuit court to address the

election issue. However, to date, no circuit court has made

this determination.

1 2 . Petitioners were given an opportunity to show cause

why the relief now sought by NI CA should not be granted in this

forum , and Petitioners having failed to show cause why

Respondent's requested relief should not be granted in this

forum , the relief sought is granted.

CONCLUSION

Upon the foregoing Findings of Fact and Conclusions of Law,

it is ORDERED:

1. Petitioners have made a de facto election against

receiving NICA benefits pursuant to sections 766.301 - 766.316,

Florida Statutes.

2. NICA owes nothing and shall pay nothing to Petitioners

as a result of th e Final Order entered herein on May 4, 2007, as

amended by the Order Correcting Scrivener Error entered May 8,

2007.

3. This cause is dismissed with prejudice.

DONE AND ORDERED this 13th day of January , 2012 , in

Tallahassee, Leon County, Florida.

S

W ILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of January , 2012 .

COPIES FURNISHED :

(Via certified mail)

Gary Cohen, Esquire

Grossman & Roth

925 South Federal Highway, Suite 775

Boca Raton, Florida 33432

(Certified Mail No. 7011 1570 0001 1540 5659)

David W. Black, Esquire

Frank, Weinberg and Black, P.L.

7805 Southwest 6th Court

Plantation, Florida 33324

(Certified Mail No. 7011 1570 0001 1540 5666)

Steven Lubell, Esquire

Lubell and Rosen

Museum Plaza, Suite 602

200 South Andrews Avenue

Fort Lauderdale, Flo rida 33301

(Certified Mail No. 7011 1570 0001 1540 5673)

Richard T. Woulfe, Esquire

Bunnell and Woulfe, P.A.

One Financial Plaza, Suite 1000

100 Southeast Third Avenue

Fort Lauderdale, Florida 33394

(Certified Mail No. 7011 1570 0001 1540 5680)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5307)

Am ie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7011 1570 0001 1540 5314)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7011 1570 0001 1540 5321)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Flo rida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original n otice of a dministrative a ppeal

with the a gency c lerk of the Division of Administrative Hearings

within 30 d ays of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the appropriate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carr eras , 598 So. 2d 299 (Fla. 1st DCA

1992).