93-004268N Sarah Wojtowicz, F/K/A Levi Wojtowicz vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, June 20, 2014.

Summary: Respective interests of the parents of injured infant warranted apportionment of $100,000 award as $95,000 for mother and $5,000 for father.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH WOJTOWICZ, as parent and )

natural guardian of LEVI )

WOJTOWICZ, a minor, )

)

Petitioner, )

and )

)

JAMES M. WOJTOWICZ, )

)

Intervenor, )

)

vs. ) CASE NO. 93-4268N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

___________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William J. Kendrick, held a formal hearing in the

above-styled case on May 17, 1994, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Mary K. Phillips, Esquire

Gentry & Phillips, P.A.

Post Office Box 837

Jacksonville, Florida 32201

For Intervenor: James W. Wojtowicz, pro se

4024 Ernest Street

Jacksonville, Florida 32205

For Respondent: W. Douglas Moody, Jr., Esquire

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250

Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

At issue in this proceeding is the acceptance of the subject claim for

compensation, and the resolution of a dispute between the parents of the infant

as to what award, if any, they should receive pursuant to Section 766.31(1)(b),

Florida Statutes.

PRELIMINARY STATEMENT

On August 2, 1993, Sarah Wojtowicz, as parent and natural guardian of Levi

Wojtowicz, a minor, filed a claim with the Division of Administration Hearings

(hereinafter referred to as "DOAH") for compensation under the Florida Birth-

Related Neurological Injury Compensation Plan (hereinafter referred to as the

"Plan").

DOAH served the Florida Birth-Related Neurological Injury Compensation

Association (hereinafter referred to as "NICA") with a copy of the claim on

August 4, 1993. NICA reviewed the claim, and on March 21, 1994, gave notice

that it "agrees that Levi Wojtowicz suffered a birth-related neurological injury

as defined in Section 766.302(2), Florida Statutes," and that it was "prepared

to provide medical benefits as provided by Section 766.31(1)(a) and [was]

willing to offer the full $100,000.00 as provided in Section 766.31(1)(b)."

On April 15, 1994, DOAH issued a notice of hearing advising the parties

that an evidentiary hearing would be held on May 17, 1994, as to whether "a lump

sum benefit of $100,000, as provided in Section 766.31(1)(b), Florida Statutes,

should be awarded to the mother, Sarah Wojtowicz." The father, James M.

Wojtowicz, who was divorced from Sarah Wojtowicz, was advised of the pendency of

the hearing, and at hearing requested and was granted leave to intervene so that

the respective interest of each parent to an award pursuant to Section

766.31(1)(b) could be resolved.

At hearing, the parties stipulated to a number of facts, which are

addressed in the findings of fact which follow, Sarah Wojtowicz and James

Wojtowicz were called as witnesses, and petitioner's exhibits 1 and 2 were

received into evidence.

On June 22, 1994, a stipulation was filed whereby petitioner and NICA

agreed that an attorney's fee of $5,747.00 and costs of $407.97 were duly

incurred in connection with the filing of the claim on behalf of petitioner.

The transcript of the hearing was filed June 13, 1994, and the parties were

accorded ten days from that date to file proposed findings of fact. As of the

date of this final order no party has elected to file such proposals. 1/

FINDINGS OF FACT

The Claim for Compensation

1. Levi Wojtowicz (Levi) is the natural son of petitioner, Sarah

Wojtowicz, and intervenor, James M. Wojtowicz. He was born a live infant on

February 26, 1993, at Baptist Medical Center in Jacksonville, Florida, and his

birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the birth of Levi

was John Bordelon, 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.

3. Here the parties have stipulated, and based on such stipulation and the

medical records of record it is found, that Levi suffered a "birth-related

neurological injury" as defined by Section 766.302(2), Florida Statutes, in that

he suffered an injury to the brain caused by oxygen deprivation in the course of

labor, delivery, or resuscitation in the immediate postdelivery period in a

hospital, which rendered him permanently and substantially mentally and

physically impaired.

4. As a consequence of the foregoing, NICA has agreed that the subject

claim is compensable, and that it will pay all "actual expenses" previously

incurred and to be incurred in the future, "reasonable expenses" incurred in

connection with the filing of the claim on behalf of petitioner, which pursuant

to agreement the parties have established to be a reasonable attorney's fee of

$5,747.00 and costs of $407.97, and the payment of an award of $100,000.00.

Given the circumstances, the sole, remaining issue to be resolved is the

appropriate apportionment of the award between the parents who, currently, are

divorced.

Apportionment of the Award to the Parents

5. Sarah Wojtowicz (Sarah) and James Wojtowicz (James) were married July

11, 1987, in Edmore, Michigan. One child, Levi, the injured infant in the

instant case, was born of that marriage.

6. In January 1993, approximately six to eight weeks before Levi's birth,

Sarah and James separated, and James removed himself from the marital home.

Nothwithstanding, James was present when Levi was delivered by emergency

cesarean section, and for the ensuing nine days. Thereafter, of the two months

Levi was in the hospital James saw Levi "in the off hours [from the Navy] when

he could get in there to see him."

7. Between Levi's discharge from the hospital to the care of Sarah, and

September 22, 1993, James visited with Levi on 7 occasions. Two of those times

were for 45 minutes, one for 10 minutes, and four were for an entire day.

Otherwise, the care of Levi was left to Sarah.

8. On September 15, 1993, a final judgment of dissolution of marriage of

James and Sarah Wojtowicz was rendered by the Circuit Court, Duval County,

Florida, and the primary residence and custody of Levi was awarded to Sarah.

Parental responsibility was, however, shared between them with regard to Levi.

As to visitation, the final judgment provided:

The Husband shall have reasonable and liberal

visitation privileges with the minor child of

the parties upon furnishing the Wife two (2)

weeks notice of his intention to exercise said

visitation. Said visitation shall include,

but is not limited to, the following:

(a) Minimum two (2) weeks per year when the

Husband is on leave;

(b) The Husband shall have visitation with

the minor child of the parties on alternating

Christmas days beginning in the calendar year

1994.

(c) The parties shall agree on a visitation

schedule during the summer months closer to

the time that the minor child is of school age.

Said visitation, however, is contingent upon

the fact that the minor child will remain

within a 150 mile radius of the minor child's

doctor due to his serious medical condition.

Finally, the final judgment approved the parties' agreement that Sarah be

allowed to leave the jurisdiction of the court and return to the State of

Michigan with Levi.

9. Consistent with the terms of the final judgment, Sarah returned to

Michigan on September 22, 1993, and has continued to reside there with her

parents, who assist her with the care of Levi. James remarried on December 5,

1993, and continues to reside in Jacksonville, Florida, with his new wife and an

infant son born of that union.

10. Since September 22, 1993, James has exercised his rights of visitation

on only one occasion and that occurred for a six day period in October 1993 when

he, as well as his parents, cared for Levi at his parents' home in Michigan. As

to future visitation, James expressed a desire at hearing to again visit with

Levi in December 1994; however, it is apparent that the demands of his new

family and naval career, as well as the great distance that divides them, may

affect that decision and severely limit any visitation James may choose to

exercise. Under such circumstances, Sarah is the primary caretaker for Levi,

with all its attendent responsibilities and sacrifices.

11. As the primary caretaker for Levi, who is substantially mentally and

physically impaired, the demands placed on Sarah are onerous. A typical day

with Levi was described by her as follows:

On a typical day that he gets say therapy at

home one of the therapists comes in which is

twice a week, three times every other week,

Levi will wake up anywhere between 7 and 9

depending on what kind of a night he's had.

Just recently he started having really bad

nights again and we have to wake him up at 9.

He gets fed at 9, 11, 1, 3, 5, 7, and 9 by

bolus feeding. These feedings take about an

hour a piece. It takes about 20 to 30 minutes

to run in the milk, the formula, then you

have to hold him upright for 20 to 30 minutes

longer in order for his reflex not to lose

all of the milk. So we have about an hour to

an hour and 20 minutes in between feeds to

give him everything else he needs.

We can give him -- whenever we play with him,

it's structured therapy, and I'm saying we

because when I'm on the phone doing paperwork

my mom is with him. She's my babysitter

without pay. So we spend whatever time is in

between there doing structured play with him

either with his gross motor skills or fine

motor skills.

We also have to position Levi. He doesn't

have any independent muscle control to sit.

He cannot shift weight independently to

relieve pressure. Fortunately, we haven't

had any pressure source (sic) yet.

So then when a therapist comes, she will work

with Levi and I will stay in the room while

she is working with him because she shows me

what to do for the rest of the week or weeks

depending on how Levi responds to things.

I have bought a big ball for him that he

gets facial therapy on. He's got a feeder

chair that we can try to work with him on.

He doesn't sit well so we work with that.

At each feed he also gets exercise with his

mouth and a brushing program that takes

probably five minutes and I do that usually

while I'm decompressing him while I'm feeding

him, so it's all part of the process included

in that hour. Also if we have to go to a

doctor, we have to -- I try to schedule it so

that we can leave in the hour after he's fed

that we've got. We can drive down there and

then we can feed him there, go to the

appointment, feed him again, and then drive

home. It usually involves either feeding him

in the waiting room or in a restaurant.

Q How about the evenings?

A He gets a bath between his 9 and 11

o'clock feed and in between there there's

also care for his stoma. It doesn't take a

long time, but it's kind of routine and

repetitive.

In the evenings -- he doesn't sleep well at

all. He has a sleeping pill right now that's

also a seizure depressant so it acts as a

sleeping pill too. The night before I came

down here he was up for two and a half hours

screaming excessively and nothing would calm

him, that was worse than it had been just

recently, but until he was about maybe a year

old or a little later he would do that almost

every night.

Clearly, the demands placed on Sarah in the care for Levi leave her little time

for other activities, and greatly exceed the demands assumed by the parent of an

infant not so impaired as Levi.

12. Under the circumstances, it is apparent that, as between them, the

loss suffered by Sarah as a consequence of Levi's injury is grossly

disproportionate to that suffered by James, and that such disparity warrants a

similar distinction, as between them, in the apportionment of any award.

Accordingly, based on such disparity and the legal principles discussed infra,

it is found that of an award of $100,000, Sarah Wojtowicz is eligible to receive

$95,000 and James Wojtowicz is eligible to receive $5,000.

CONCLUSIONS OF LAW

13. The Division of Administration Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Section 766.301, et

seq., Florida Statutes, (1993).

14. The Florida Birth-Related Neurological Injury Compensation Plan (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. Section

766.303(1), Florida Statutes.

15. The injured "infant, 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 within five years of

the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313,

Florida Statutes. The Florida Birth-Related Neurological Injury Compensation

Association (NICA), 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." Section 766.305(3), Florida

Statutes.

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

birth-related neurological injury, as it has in this case, it may award

compensation to the claimant, provided that the award is approved by the Hearing

Officer to whom the claim has been assigned. Section 766.305(6), Florida

Statutes. Here, the parties have stipulated that the attending physician who

provided obstetric services during the birth of Levi was a "participating

physician" as that term is defined by Section 766.302(7), Florida Statutes, and

as that term is used in Section 766.301 through 766.316, Florida Statutes, and

that Levi suffered a "birth-related neurological injury," within the meaning of

Section 766.302(2), Florida Statutes. Such stipulation is consistent with the

medical records filed in support of the claim for compensation and officially

recognized. Under these circumstances, NICA's determination that the claim is

compensable and should be accepted for compensation is approved. Section

766.305(6), Florida Statutes.

17. Where, as here it has been found that "the infant has sustained a

birth-related neurological injury and that obstetrical services were delivered

by a participating physician at the birth," the Hearing Officer is required to

make a determination as to "how much compensation, if any, is awardable pursuant

to s. 766.31." Section 766.309(1)(c), Florida Statutes. Included among the

"items relative to such injury" for which the Hearing Officer "shall make an

award providing compensation," are:

Periodic payments of an award to the parents

or legal guardians of the infant found to

have sustained a birth-related neurological

injury, which award shall not exceed

$100,000. However, at the discretion of the

hearing officer, such award may be made in

lump sum.

Section 766.31(1)(b), Florida Statutes.

18. The foregoing provision offers no guidance as to the basis upon which

an "award" to the parents is to be premised. Accordingly, it is presumed that

the Legislature intended that such award be based on the same factors that

support an award at common law. Vanner v. Goldshein, 216 So.2d 759, 760 (Fla.

2d DCA 1968), ("The general rule is that statutes are to be construed with

reference to appropriate principles of the common law, and when possible they

should be so construed as to make them harmonize with existing law and not

conflict with long settled principles."), and Carlile v. Game and Fresh Water

Fish Commission, 354 So.2d 362 (Fla. 1977), (A statute designed to change the

common law rule must speak in clear, unequivocal terms, for the presumption is

that no change in the common law was intended unless the statute is explicit in

this regard.).

19. Pertinent to this case, the parents of a child who has suffered a

significant injury resulting in the child's permanent total disability had, at

common law, a right to recover indirect economic losses such as income lost by

the parent in caring for the child and for the permanent loss of filial

consortium suffered as a result of the injury. United States of America v.

Dempsey, 19 F.L.W. S198 (Fla. 1994), and Wilkie v. Roberts, 91 Fla. 1064, 109

So. 225 (1926). In this context, "consortium" has been defined "to include the

loss of companionship, society, love, affection, and solace of the injured

child, as well as ordinary day-to-day services that the child would have

rendered." United States of America v. Dempsey, supra, at S200.

20. Given that the foregoing factors are the premise upon which the award

of $100,000 must rest, so must those factors be balanced, relative to the impact

the child's injury has had on the respective interests of the parents, in

apportioning the award between the parents. So considered, a significant

difference is apparent between the loss suffered by Sarah and James as a

consequence of Levi's injury, including: Sarah's lost opportunity in caring for

Levi, as compared to James' continued Naval career; and, Sarah's daily loss of

Levi's companionship, society, love, affection and solace, as well as ordinary

day-to-day services Levi would have rendered had his maturation been age

appropriate, as compared to James' periodic loss of consortium. Under such

circumstances, the proof demonstrates that of an award of $100,000, Sarah

Wojtowicz is eligible for $95,000, and James Wojtowicz is eligible for $5,000;

however, no decision is reached as to whether such sums should be paid in

periodic payments, lump sum, or through some other means. Rather, the parties

are accorded thirty (30) days from the date of this final order to resolve the

method of payment, subject to the approval of the Hearing Officer, failing which

a hearing will be held to address that issue.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that:

1. The claim for compensation filed by Sarah Wojtowicz, as parent and

natural guardian of Levi Wojtowicz, a minor, and NICA's acceptance of that claim

for compensation be and the same is hereby approved.

2. NICA shall make immediate payment of all actual expenses, as defined by

Section 766.31(1)(a), Florida Statutes, previously incurred and shall make

payment for future expenses as incurred.

3. Petitioner shall recover from NICA, as reasonable expenses incurred in

connection with the filing of the claim for compensation, a reasonable

attorney's fee of $5,747.00 and costs of $407.97.

4. Sarah Wojtowicz and James Wojtowicz, as the parents of Levi, are

entitled to an award of $100,000, of which Sarah Wojtowicz is entitled to

$95,000, and James Wojtowicz is entitled to $5,000.

5. The parties are accorded thirty (30) days from the date of this order

to resolve, subject to approval by the Hearing Officer, the manner in which the

award to James and Sarah Wojtowicz should be paid. If not resolved within such

period, the parties will so advise the Hearing Officer, and a hearing will be

scheduled to resolve such issue.

6. Pursuant to Section 766.312, Florida Statutes, jurisdiction is reserved

to resolve any disputes should they arise, regarding the parties compliance with

the terms of this final order.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of

July, 1994.

___________________________________

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of July 1994.

ENDNOTE

1/ By letter dated June 22, 1994, filed June 27, 1994, petitioner's counsel

advised the Hearing Officer "we were not aware that the transcript was sent to

you on June 9, 1994, [and therefore] we did not submit a proposed order to you

within the required time period. Now that we have become aware of what has

transpired, we will prepare a proposed order and forward it to you for your

review within the near future." To date, no such proposal has been forthcoming.

COPIES FURNISHED:

(By Certified Mail)

Mary K. Phillips, Esquire

Gentry & Phillips, P.A.

Post Office Box 837

Jacksonville, Florida 32201

James W. Wojtowicz, pro se

4024 Ernest Street

Jacksonville, Florida 32205

W. Douglas Moody, Jr., Esquire

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250

Tallahassee, Florida 32302

Lynn Dickinson

Executive Director

Florida Birth-Related Neurological

Injury Compensation Association

Post Office Box 1528

Tallahassee, Florida 32302

Dr. John Bordelon

4130 Salisbury Road, Suite 2000

Jacksonville, Florida 32216

Baptist Medical Center

800 Prudential Drive

Jacksonville, Florida 32207

Sue Foster, Chief

Bureau of Complaints

Department of Business

and Professional Regulation

Suite 60

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ms. Tanya Williams

Division of Health Quality Assurance

Hospital Section

Agency For Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

Bill O'Neil, Esquire

General Counsel

Department of Insurance

The Capitol, PL-11

Tallahassee, Florida 32399-0300

NOTICE OF 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 one copy of a notice of appeal with the

Agency Clerk Of The Division Of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the appropriate District

Court Of Appeal. See, Section 120.68(2), 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.