13-001634N Diana Lynn Benner, On Behalf Of And As Parent And Natural Guardian Of Madison Carlene Benner, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, April 15, 2014.

Summary: Claimant settled civil lawsuit against doctor for injuries to infant which occurred during labor and delivery. Claimant's claim is barred.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANA LYNN BENNER, on behalf of

and as parent and natural

guardian of MADISON CARLENE

BENNER, a minor,

Petitioner,

vs. Case No. 13 - 1634N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

MEASE COUNTRYSIDE HOSPITAL,

Intervenor.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This cause came on for consideration upon Respondent's

Motion for Summary Final Order filed by R espondent, Florida

Birth - Related Neurological Injury Compensation Association

(NICA), on March 20, 2014.

STATEMENT OF THE CASE

On May 1, 2013, Petitioner, Diana Lynn Benner, on behalf of

and as parent and natural guardian of Madison Carlene Benner

(Madison ), a minor, filed a Petition for Benefits Pursuant to

Florida Statute Section 766.301 et se q . (Petition) with the

Division of Administrative Hearings (DOAH) for a determination of

compensability under the Florida Birth - Related Neurological

Injury Compensat ion Plan (Plan). The Petition named Anjana D.

Patel, M.D., as the physician providing obstetric services at the

birth of Madison at Mease Countryside Hospital in Safety Harbor,

Florida.

DOAH served NICA with a copy of the Petition on May 6, 2013.

DOAH se rved a copy of the Petition on Mease Countryside Hospital

on May 8, 2013. On July 17, 2013, DOAH served a copy of the

Petition on Dr. Patel.

On May 28, 2013, Mease Countryside Hospital filed a Motion

to Intervene, which was granted by Order dated June 11, 2013. As

of the date of this Summary Final Order of Dismissal, Dr. Patel

has not petitioned to intervene.

On March 20, 2014, NICA filed a Motion for Summary Final

Order, asserting that PetitionerÓs claim was barred by section

766.304, Florida Statutes, b ecause Petitioner had settled a

lawsuit against Dr. Patel for injuries to Madison which occurred

during labor and delivery. The motion was heard by telephonic

conference call on March 28, 2014.

FINDINGS OF FACT

1. Madison Carlene Benner was born on May 2 , 2008, at Mease

Countryside Hospital in Safety Harbor, Florida.

2. On November 21, 2008, a complaint for medical

malpractice was filed by Diana Lynn Benner, individually, and as

parent and natural guardian of Madison Benner, a minor. The

complaint alle ged that Tampa Bay WomenÓs Healthcare Alliance,

LLP, d/b/a Tampa Bay WomenÓs Care (Defendant), acting by and

through an agent or employee, delivered Madison. The complaint

further alleged that DefendantÓs agent or employee applied

excessive lateral tracti on Ðto the fetal head during the dystocia

causing and/or substantially contributing to the brachial plexus

injury and/or aggravating a pre - existing condition.Ñ

3. Subsequent to the filing of the medical malpractice

action a Guardian Ad Litem was appointed .

4. Shortly thereafter, a settlement agreement was entered

into between Diana Benner, individually, and as parent and

natural guardian of Madison Benner, a minor, and Anjana D. Patel,

M.D. ; Tampa Bay WomenÓs Healthcare Alliance, L LP , d/b/a Tampa Bay

Wome nÓs Care ; Tampa Bay WomenÓs Healthcare Alliance, LLP , d/b/a

WomenÓs Care Florida ; and First Professionals Insurance Company,

Inc.

5. The Settlement Agreement and Release states as recitals

the following:

Recitals

a. Diana Benner was a patient of Defenda nts.

Madison Benner, the minor, was injured by

Defendants during her delivery on May 2, 2008

in Pinellas County, Florida. Claimants

allege that the minorÓs physical and personal

injuries arose out of certain alleged

negligent acts or omissions by Defenda nts and

have made a claim seeking monetary damages on

account of those injuries. The Release

extends to all damages which could have been

alleged in the Notice of Intent to Initiate

Litigation against the Defendants. The

Release does not extend to any ot her person

or entity not identified herein.

b. FPIC is the DefendantsÓ liability insurer

and, as such, would be obligated to pay any

claim made or judgment obtained against

Defendants which is covered by its policy

with Defendants.

c. The parties desir e to enter into this

Settlement Agreement in order to provide for

certain payments in full settlement and

discharge of all claims which have, or might

be made, by reason of the incident described

in Recital A above, upon the terms and

conditions set forth below.

6. In exchange for the complete release and forever

discharge given to the Defendants and insurer, Diana Benner,

individually , and as parent and natural guardian of Madison ,

received $250,000, $80,000 of which was annuitized.

7. The settlement fu rther states:

1.0 Release and Discharge

1.1 In consideration of the payments set

forth in Section 2 Claimants hereby

completely release, and forever discharge,

Defendants and Insurer from any and all past,

present or future claims, demands,

obligations, actions, causes of action,

wrongful death claims, rights, damages,

costs, losses of services, expenses and

compensation of any nature whatsoever,

whether based on a tort, contract, or other

theory of recovery, which the Claimants may

have, or which may he reafter accrue or

otherwise be acquired, on account of, or may

in any way grow out of, the incident

described in Recital A above, including,

without limitation, any and all known or

unknown claims for bodily or personal

injuries to Claimants or any future wrongful

death claim to ClaimantsÓ representatives or

heirs, which have resulted or may result from

the alleged acts or omission s of the

Defendants .

8. On February 12, 2009, Ms. Benner filed a Motion to

Approve Settlement. A two - page letter from the Gua rdian Ad Litem

in support of the settlement was also filed.

9. On March 6, 2009, a hearing was held before Circuit

Judge Amy Williams, who approved the settlement. Any claims of

MadisonÓs father were extinguished by the settlement. The

Guardian Ad Litem was relieved of further responsibilities. The

medical malpractice action was voluntarily dismissed on March 16,

2009.

10. At the time of MadisonÓs birth, Dr. Patel, who was one

of the parties settling with Ms. Benner, was a Ðparticipating

physicianÑ as that term is defined by section 766.302(7). There

is no dispute that Dr. Patel delivered Madison, was named in the

Petition as the physician providing obstetric services , and was

present at the birth of Madison.

CONCLUSIONS OF LAW

11. The Division of Ad ministrative Hearings has

jurisdiction over the parties to and the subject matter of these

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

12. The 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.

The Plan is a limited no - fault alternative for common law rights

and liabilities. Romine v. Fla. Birth - Related Neurological

Inj ury Comp. AssÓn , 842 So. 2d 148, 151 (Fla. 5 th DCA 2003)( " In

its current form, [the Plan] provides exclusive no - fault benefits

to eligible claimants in lieu o f the claimantsÓ traditional

common law tort rights. " )

13. Section 766.303(2) provides:

The right s 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. 76 6.301 -

766.316. Such suit shall be filed before the

award of the division becomes conclusive and

binding as provided in s. 766.311.

14. In 1998 the Florida legislature adopted Chapter 98 - 113,

Laws of Florida, which in part , amended section 766.304. As

amended, section 766.304 provides:

The administrative law judge shall hear and

determine all claims filed pursuant to ss.

766.301 - 76 6 .316 and shall exercise the full

power and authority granted to her or him in

chapter 120, as necessary to carry out the

pu rposes 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 administrati ve law judge. If the

administrative law judge determines that the

claimant is entitled to compensation from the

association, or if the claimant accepts an

award issued under s. 766.31, no civil action

may be brought or continued in violation of

the exclus iveness of remedy provisions of

766.303. If it is determined that a claim

filed under this act is not compensable,

neither the doctrine of collateral estoppel

nor res judicata shall prohibit the claimant

from pursuing any and all civil remedies

available under common law and statutory law.

The findings of fact and conclusions of law

of the administrative law judge shall not be

admissible in any subsequent proceeding;

however, the sworn testimony of any person

and the exhibits introduce d into evidence in

t he administrative case are admissible as

impeachment in any subsequent civil action

only against a party to the administrative

proceeding, subject to the Rules of Evidence.

An award may not be made or paid under ss.

766.301 - 766.316 if the claimant recover s

under a settlement or a final judgment is

entered in a civil action.

15. By amending section 766.304 to include Ð[a]n a ward may

not be made or paid under ss. 766.301 - 766.31 6 if the claimant

recovers under settlement or a final judgment is entered,Ñ the

legislature intended to prevent claimants from maintaining an

administrative action after having received a monetary recovery

in a medical malpractice action involving the labor, delivery or

immediate post - delivery period. ÐAs it now stands, a claimant

c annot assert a NICA claim and make a civil recovery.Ñ Romine at

842 So. 2d 151. ÐFollowing the 1998 amendments to NICA, it is

clear that a plaintiffÓs acceptance of a civil settlement bars a

claim for NICA benefits.Ñ Gugelmin v. Fla. Birth - Related

Neuro logical Injury Comp. AssÓn , 882 So. 2d 517, 520 (Fla. 4 th

DCA 2004).

16. The settlement agreement clearly releases Dr. Patel

from all damages resulting from the birth of Madison, which could

have been alleged by Ms. Benner. Thus, having settled with

Dr. Patel, Ms. Benner is now precluded from pursuing a claim for

benefits pursuant to sections 766.301 - 766.316.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the Petition filed by Diana Benner, on

behalf of an d as parent and natural guardian of Madison Carlene

Benner, is dismissed with prejudice.

DONE AND ORDERED this 15th day of April , 2014 , in

Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judg e

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 15th day o f April , 2014 .

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. 7012 3050 0000 1250 8471)

Diana Lynn Benner

Apartment 1218

14330 58th Street North

Clearwater, Florida 33760

(Certified Mail No. 7012 3050 0000 1250 8488)

David S. Nelson, Esquire

La Cava and Jacobson, P.A.

101 East Kennedy Boulevard , Suite 2500

Tampa, Florida 33602

(Certified Mail No. 7012 3050 0000 1250 8495)

Robert J. Grace, Esquire

The Bleakley Bavol Law Firm

15170 North Florida Avenue

Tampa, Florida 33613

(Certified Mail No. 7012 3050 0000 1250 8501)

Amie Rice, Investigation Manager

Consumer Services Unit

Depa rtment of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7012 3050 0000 1250 8518)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallaha ssee, Florida 32308

(Certified Mail No. 7012 3050 0000 1250 8525)

Anjana D. Patel, M.D.

Women's Care Florida Countryside

2665 SR 580

Clearwater, Florida 33761

(Certified Mail No. 7012 3050 0000 1250 8532)

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

commen ced 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 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).