11-000938N Callena Jones, On Behalf Of And As Parent And Natural Guardian Of Nazyrah Jones, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, December 7, 2011.

Summary: Compensability and appropriate notice found; required election of NICA benefits or civil action within 30 days of summary final order. Willful and wanton issue devolves upon Circuit Court. (SFO)

Case No. 11-0938N

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALLENA JONES, on behalf of and )

as parent and natural guardian SUMMARY FINAL ORDER )

of NAZYRAH JONES, a minor, )

Petitioner, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent, )

and )

)

NORTH FLORIDA REGIONAL MEDICAL )

CENTER, INC.; ANTHONY AGRIOS, )

M.D.; DEIDRE MICHELLE RUSSELL, )

MSN, ARNP; AND ANTHONY AGRIOS, )

M.D., P.A., d/b/a ALL ABOUT )

WOMEN OBSTETRICS AND )

GYNECOLOGY, )

)

Intervenors. )

)

)

)

This cause came on for consideration upon Petitioner's

Motion to Dismiss, Petitioner's Notice of Election of Civil

Action, Respondent NICA's Response to Petitioner's Motion to

Dismiss and Intervenor North Florida Regional Medical Center,

Inc.'s Memorandum in Opposition to Petitioner's Motion to

Dismiss.

STATEMENT OF THE CASE

1. On February 16, 2011, Callena Jones, on behalf of and

as parent and natural guardian of Nazyrah Jones, a minor, filed

a petition for benefits pursuant to sections 766.301-766.316,

Florida Statutes.

2. On February 20, 2011, the Division of Administrative

Hearings (DOAH) served the Neurological Injury Compensation

Association (NICA) and served Anthony Agrios, M.D. On or about

February 28, 2011, DOAH served North Florida Regional Medical

Center.

3. On April 20, 2011, NICA filed its response to the

petition, stating that NICA was of the view that the claim was

compensable and offering to pay all benefits authorized by law.

4. On April 22, 2011, North Florida Regional Medical

Center filed a petition to intervene, which was granted by an

Order entered May 4, 2011. On April 29, 2011, Anthony Agrios,

M.D.; Deidre Mitchelle Russell, MSN, ARNP; and Anthony Agrios,

M.D., P.A., d/b/a All About Women Obstetrics and Gynecology

filed a petition for leave to intervene, which was granted by an

Order entered May 10, 2011.

5. On October 11, 2011, Petitioner filed a Notice of

Election of Civil Action and a Motion to Dismiss. Petitioner's

Motion to Dismiss, states that:

There is no dispute between [sic] the

parties that: . . . Nazyrah Jones sustained

a compensable neurological injury; . . .

that obstetrical services were provided by a

participating physician; . . . that

petitioner is entitled to medical benefits

as defined in Fla. Stat. 766.31(1)(a); . . .

that petitioner is also entitled to $100,000

as provided in 766.31(1)(b); . . . that

petitioner's attorneys are entitled to fees

and costs pursuant to Section 766.31(1)(c).

[endnote omitted].

6. Petitioner's motion seeks an order finding that:

. . . Nazyrah Jones sustained a compensable

neurological injury; . . . Nazyrah Jones'

obstetrical services were delivered by a

participating physician; . . . Nazyrah Jones

is entitled to receive medical benefits as

defined in Fla. Stat. 766.31(1)(a); . . .

Nazyrah Jones' parents are entitled to

$100,000 as provided in 766.31(1)(b); . . .

There is no dispute that the notice

requirements in s. 766.316 were satisfied;

. . . Nazyrah Jones' attorneys are entitled

to a payment of costs and fees related to

pursuit of this claim; and . . . That in

light of the Notice of Election of Civil

Action filed in this matter by the

petitioner, wherein petitioner has elected

to pursue a civil action in lieu of the

acceptance of any of the awards stated

above, this petition is hereby dismissed.

7. NICA's Response to the Motion to Dismiss states:

. . . NICA has previously advised Petitioner

and the Division of Administrative Hearings

that NICA has concluded that Nazyrah Jones

suffered a birth-related neurological injury

as defined in section 766.302(2) Florida

Statutes and that NICA was prepared to offer

Petitioner benefits pursuant to section

766.301-766.316, Florida Statutes. However,

as set forth in the Motion to Dismiss and

the attached Notice of Election of Civil 3

Action, Petitioner has elected to forego any

payment of NICA benefits to pursue a civil

action. . . . Consequently, in view of the

election made by Petitioner . . . this

administrative proceeding should be

dismissed with prejudice.

8. Intervenor North Florida Regional Medical Center filed

a Memorandum in Opposition to Petitioner's Motion to Dismiss on

October 19, 2011. That Memorandum addresses matters with regard

to the authority and anticipated actions of the infant's

Guardian ad Litem and the Petitioner's attorney in the Circuit

Court case arising from Nazyrah Jones' birth, and does not

suggest that the claim against NICA is untimely or invalid.

9. The remaining Intervenors filed no response in

opposition to Petitioner's Motion to Dismiss.

10. Petitioner seeks to finalize the proceedings before

DOAH, which can only be accomplished by a final, appealable

order. As a result, an Order to Show Cause was entered on

November 10, 2011, which provided, in pertinent part:

All parties are granted to and until

November 29, 2011, in which to show cause,

in writing, filed with the Division of

Administrative Hearings, why a summary final

order should not be entered finding and

concluding that:

1. Nazyrah Jones suffered a "birth-related

neurological injury" as defined at section

766.302(2).

2. A participating physician as defined at

section 766.302(7), delivered obstetrical

services during labor, delivery and/or

resuscitation in the immediate postdelivery

period in the hospital at Nazyrah's birth;

and

3. Petitioner is entitled to all applicable

compensatory awards as set out in section

766.31, Fla. Stat., including but not

limited to past expenses, future expenses,

the $100,000 parental award, and reasonable

expenses in connection with the filing of

the claim (e.g. attorney's fees and costs).

Failure of all parties to show good

cause [sic] to enter such a summary final

order, will result in the entry of a summary

final order, which Petitioner may elect

against or not within the time provided by

law. 1/

ENDNOTE

1/ Section 766.303(2), provides:

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, her or his personal

representative, 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

related to a medical negligence 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 . (emphasis added).

11. On November 29, 2011, Intervenor North Florida

Regional Medical Center filed a Response to the Order to Show

Cause that does not dispute any of paragraphs 1-3 (proposed

findings) of the November 10, 2011, Order to Show Cause. 1/

Accordingly, no good cause has been shown why a summary final

order as proposed in the November 10, 2011, Order to Show Cause

should not be entered.

12. Given the record, there is no genuine issue as to any

material fact. See § 120.57(1)(h), Fla. Stat. Specifically,

there is no dispute that Nazyrah's injury is compensable

pursuant to section 766.302(2) and (7); that appropriate notice

was given pursuant to section 766.316; or that Petitioner is

entitled to all benefits/expenses provided-for in section

766.31.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

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

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

14. The Florida Birth-Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth-related neurological injury claims" relating to births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

15. The injured "infant, her or his personal

representative, parents, dependents, and next of kin," may seek

compensation under the Plan by filing a claim for compensation

with the Division of Administrative Hearings. §§ 766.302(3),

766.303(2), 766.305(1), and 766.313, Fla. Stat. The Florida

Birth-Related Neurological Injury Compensation Association,

which administers the Plan, has "45 days from the date of

service of a complete claim . . . in which to file a response to

the petition and to submit relevant written information relating

to the issue of whether the injury is a birth-related

neurological injury." § 766.305(4), Fla. Stat.

16. If NICA determines that the injury alleged in a claim

is a compensable birth-related neurological injury, it may award

compensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned Administrative Law

Judge in accordance with the provisions of chapter 120, Florida

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

17. In discharging this responsibility, the Administrative

Law Judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

birth-related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.302(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate post-delivery

period in a 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 birth." § 766.31(1), Fla. Stat.

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

section 766.302(2), to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 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.

19. "Participating physician" is defined at section

766.302(7), to mean:

Participating physician means a physician

licensed in Florida to practice medicine who

practices obstetrics or performs obstetrical

services either full time or part time and

who had paid or was exempted from payment at

the time of the injury the assessment

required for participation in the birth-

related neurological injury compensation

plan for the year in which the injury

occurred. Such term shall not apply to any

physician who practices medicine as an

officer, employee, or agent of the Federal

Government.

20. There is no dispute that Nazyrah Jones suffered a

"birth related neurological injury" as defined by section

766.302(2) or that a participating physician as defined at

section 766.302(7), delivered obstetrical services during labor,

delivery, and/or resuscitation in the immediate postdelivery

period in the hospital at Nazyrah's birth.

21. Likewise, there is no dispute regarding whether or not

appropriate notice was provided. 2/

22. Petitioner has indicated her intent to waive NICA

benefits and to elect to proceed to circuit court pursuant to

provisions of section 766.303, related to ". . . 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 sections 766.301-766.316." That statutory section

also provides: "Such suit shall be filed before the award of

the division becomes conclusive and binding as provided for in

section 766.311." 3/

CONCLUSION

Based on the foregoing Statement of the Case and

Conclusions of Law, it is

ORDERED that the claim for compensation filed by

Callena Jones, on behalf of and as parent and natural guardian

of Nazyrah Jones, a minor, is approved.

It is further ORDERED that the participating physician and

hospital named in the petition/claim complied with the notice

provisions of the Birth-Related Neurological Injury Compensation

Plan.

It is further ORDERED that the parties are accorded 30 days

from the date of this Summary Final Order to resolve, subject to

approval of the Administrative Law Judge, the amount and manner

of payment of an award to the mother; the reasonable expenses

incurred in connection with the filing of the claim, including

reasonable attorney's fees and costs; and the amount owing for

expenses previously incurred. If not resolved within such

period, the parties shall so advise the Administrative Law

Judge, and a hearing will be scheduled to resolve such issues.

Once resolved, an award will be made consistent with section

766.31.

It is further ORDERED that in the event Petitioner files an

election of remedy declining or rejecting NICA benefits, this

case will be dismissed and DOAH's file will be closed.

DONE AND ORDERED this 7th day of December, 2011, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of December, 2011.

ENDNOTES

1/ North Florida Regional Medical Center's Response states, in

pertinent part,

. . . this Intervenor agrees that the

healthcare providers that were involved in

delivering obstetrical services were

participants as defined in Section

766.302(7) and that Petitioner is entitled

to all applicable compensatory awards.

. . . [F]or purposes of this administrative

proceeding only, Intervenor will not dispute

in this proceeding that this is a birth-

related injury, solely for the purposes of

allowing the Guardian ad Litem to elect

benefits pursuant to the Florida Birth-

Related Neurological Compensation

Association and the statutory scheme set

forth [sic] 766.301, et seq.

The Intervenor reserves all the rights,

remedies and limitations set forth in

Section 766.304, as findings of facts and

conclusions of law in this administrative

proceeding are not admissible in any

subsequent proceeding including the

concurrent civil lawsuit and anticipated

trial of that lawsuit. The Intervenor

reserves the right to dispute in the pending

circuit court case (Callena Jones vs. North

Florida Regional Medical Center et al. , Case

No. 01-2010-CA-005778, pending in the

Circuit Court of the Eight [sic] Judicial

Circuit in and for Alachua County) that this

is a birth related injury, if the Guardian

ad Litem does not elect NICA benefits.

2/ Section 766.316 provides:

Each hospital with a participating physician

on its staff and each participating

physician, other than residents, assistant

residents, and interns deemed to be

participating physicians under s.

766.314

(4)(c), under the Florida Birth-

Related Neurological Injury Compensation

Plan shall provide notice to the obstetrical

patients 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 patient has an emergency

medical condition as defined in s.

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

practicable.

Section 766.309 provides, in pertinent part:

(1) The administrative law judge shall make

the following determinations based upon all

available evidence:

* * *

(d) Whether, if raised by the claimant or

other party, the factual determinations

regarding the notice requirements in s.

766.316 are satisfied. The administrative

law judge has the exclusive jurisdiction to

make these factual determinations.

3/ Herein, no party has raised any issue regarding whether or

not an Administrative Law Judge of DOAH may order a

claimant/petitioner to file such an election; however, it

appears that an Administrative Law Judge has no jurisdiction to

resolve the willful and wanton exception to Plan exclusivity.

See Cordero v. Fla. Birth-Related Neurological Injury Comp.

Ass'n and Helen Ellis Mem. Hosp. , Case No. 08-4917N (Fla DOAH

June 2, 2009), and cases cited therein.

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 2113)

William H. Ogle, Esquire

Attorney at Law

444 Seabreeze Boulevard, Suite 750

Daytona Beach, Florida 32118

(Certified Mail No. 7010 3090 0000 0717 2120)

Richard B. Schwamm, Esquire

Haliczer Pettis & Schwamm

225 East Robinson Street, Suite 475

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 2137)

Henry W. Jewett, II, Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahue and McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32801

(Certified Mail No. 7010 3090 0000 0717 2144)

J. Stephen Menton, Esquire

Rutledge, Ecenia, and Purnell, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551

Tallahassee, Florida 32301

(Certified Mail No. 7010 3090 0000 0717 2151)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7010 3090 0000 0717 2168)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7010 3090 0000 0717 2175)

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), Florida Statutes. Review proceedings are governed

by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative

appeal with the agency clerk of the Division of Administrative

Hearings within 30 days 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. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).