99-002797N Mauricio Gugelmin And Stella Gugelmin, On Behalf Of And As Parents And Natural Guardians Of Giuliano Gugelmin, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, August 30, 2005.

Summary: Physician failed to give patient notice of his participation in the Plan. Therefore, while claim was compensable, patient had option to accept Plan benefits or reject Plan benefits and pursue her civil remedies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAURICIO GUGELMIN and STELLA GUGELMIN, )

as parents and natural guardians of )

GIULIANO GUGELMIN, a minor, )

)

Petitioners, )

)

vs. ) Case No. 99-2797N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL )

INJURY COMPENSATION ASSOCIATION, )

)

Respondent, )

)

and )

)

SOUTH BROWARD HOSPITAL DISTRICT, d/b/a )

MEMORIAL HOSPITAL WEST, )

)

Intervenor. )

_______________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge, William J. Kendrick, held a formal

hearing in the above-styled case on June 12, 2000, by video

teleconference, with sites in Tallahassee and Fort Lauderdale,

Florida.

APPEARANCES

For Petitioner: Ben J. Weaver, Esquire

Krupnick, Campbell, Malone, Roselli,

Buser, Slama & Hancock, P.A.

Courthouse Law Plaza, Suite 100

700 Southeast Third Avenue

Fort Lauderdale, Florida 33316

For Respondent: David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

For Intervenor: D. David Keller, Esquire

Bunnell, Woulfe, Kirschbaum, Keller,

Cohen & McIntyre, P.A.

888 East Las Olas Boulevard, Suite 400

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

1. At issue in this proceeding is whether Giuliano

Gugelmin, a minor, qualifies for coverage under the Florida

Birth-Related Neurological Injury Compensation Plan (the Plan).

2. If so, whether the notice requirements of the Plan were

satisfied.

PRELIMINARY STATEMENT

On June 23, 1999, Mauricio Gugelmin and Stella Gugelmin, as

parents and natural guardians of Giuliano Gugelmin, a minor,

filed a petition (claim) with the Division of Administrative

Hearings (hereinafter referred to as "DOAH") for compensation

under the Florida Birth-Related Neurological Injury Compensation

Plan (hereinafter referred to as the "Plan"). Pertinent to this

case, the petition also included the following allegations

regarding the pendency of a civil action, as well as the notice

requirements of the Plan.

. . . a suit has been filed in the Circuit

Court of the 17th Judicial Circuit, In and

For Broward County, Florida against, among

others, South Broward Hospital District doing

business as Memorial Hospital West . . . .

The South Broward Hospital District, on

behalf of Memorial Hospital West, has raised

as an affirmative defense to any civil

liability the applicability of F lorida's

Birth-Related Neurological Injury

Compensation . . . [Plan]. While issues have

been raised as to the adequacy and timeliness

of the . . . notice, the South Broward

Hospital District has agreed to a stay of any

Court proceeding during the processing of

this . . . petition.

Petitioners also filed suit against

Dr. Freling [the physician who provided

obstetrical services at birth] and his

professional association . . . Dr. Freling

has tendered his policy limits and

Petitioners are in the process of settling

with the physician. The terms of the

settlement specifically preserve, and are

without prejudice to, Petitioners' claims

against South Broward Hospital District,

d/b/a Memorial Hospital West and/or Florida

Birth-Related Neurological Injury

Compensation Association. As stated above,

the South Broward Hospital District, d/b/a

Memorial Hospital West maintains that NICA

benefits apply to this claim.

DOAH served the Florida Birth-Related Neurological Injury

Compensation Association (hereinafter referred to as "NICA") with

a copy of the claim on June 24, 1999. NICA reviewed the claim

and on August 20, 1999, filed a motion to dismiss based on its

perception that Petitioners had settled their civil claims with

Dr. Freling and his professional association and, consequently,

could not pursue a claim under the Plan. See Section 766.304,

Florida Statutes. That motion was denied by order of

September 7, 1999, "without preju dice to raise such matters in

defense of the claim," and NICA was directed to file its response

to the petition by September 30, 1999. That deadline was

subsequently extended (with the parties' agreement) and on

November 16, 1999, NICA filed a Notice of Acceptance of

Compensability and Motion to Dismiss wherein NICA averred that it

"agrees that the injury constitutes a 'birth-related neurologic

injury' as defined by the NICA Plan," but again averred, by way

of defense, that the claim be dismissed because "the injury is

not compensable based upon the fact that the Petitioners have or

will be settling their underlying medical malpractice claim . . .

with the obstetrician and his professional association," and

requested that a hearing be scheduled to address the

compensability of the claim.

By notice of December 30, 1999, a hearing was scheduled for

February 3, 2000, to address "[w]hether the subject claim should

be accepted for compensation or declined for reasons advanced by

Respondent in its Notice of Acceptance of Compensability and

Motion to Dismiss filed November 16, 1999." That hearing was

ultimately re-scheduled, at the parties' request, for June 12,

2000. In the interim, South Broward Hospital District, d/b/a

Memorial Hospital West requested and was accorded leave to

intervene.

On May 22, 2000, an opinion of the Fifth District Court of

Appeal, State of Florida, in the matter of O'Leary v. Florida

Birth-Related Neurological Injury Compensation Association , DOAH

Case No. 99-2901N, was filed with DOAH, which resolved certain

issues relevant to the notice issue raised in Petitioners'

initial claim. Pertinent to this issue the opinion noted that:

The language used by the legislature in its

amendment to . . . [section 766.304]

indicates that the administrative law judge

is to determine all matters relative to a

claim. Notably, the determination of the

adequacy of notice is not excluded from the

duties of the administrative law judge.

Section 766.304 states that the

administrative law judge shall hear all

claims and shall exercise the full power and

authority grated that is necessary to carry

out the purpose of the section. The section

further grants exclusive jurisdiction to the

administrative law judge to determine whether

a claim is compensable and precludes any

civil action until the issue of

compensability is determined. We believe

that under these amendments, any issue

raising the immunity of a health provider,

including the issue of whether the health

provider satisfied the notice requirements of

the Plan is an issue to be decided by the

administrative law judge as one which relates

to the question of whether the claim is

compensable under the Plan. We recognize

that lack of proper notice does not affect a

claimant's ability to obtain compensation

from the Plan. However, a health provider

who disputes a plaintiff's assertion of

inadequate notice is raising the issue of

whether a claim can only by compensated under

the [P]lan. All questions of compensability,

including those which arise regarding the

adequacy of notice, are properly decided in

the administrative forum.

O'Leary v. Florida Birth-Related Neurological Injury Compensation

Association , 25 Fla. L. Weekly D1234, 1235 (5th DCA, May 19,

2000). By letter of June 2, 2000, the parties were provided a

copy of the court's opinion, as a matter of import to the pending

case.

On June 8, 2000, a pre-trial conference was held to address

the issues that would be litigated at hearing, and to facilitate

the presentation of proof. Those matters were again addressed at

the commencement of hearing on June 12, 2000, when it was

observed that the issues to be resolved were whether the claim

qualified for coverage under the Plan and, if so, whether proper

notice was given. As for the issue of settlement of the civil

action, and any effect it might have on the compensability of the

claim, the parties agreed the settlement was, at best, tentative,

and not finalized, and consequently was not an issue that merited

further consideration in resolving whether the subject claim was

compensable. 1

At hearing, the parties stipulated to the factual matters

set forth in paragraphs 1-3 of the Findings of Fact. Petitioner,

Mauricio Gugelmin, testified on his own behalf, and Petitioners'

Exhibits 1A-1F (the medical records filed with DOAH on June 23,

1999), 2, 2A 2 , and 3 were received into evidence. No further

witnesses were called; however, Respondent's Exhibit 1 and

Intervenor's Exhibit 1 were also received into evidence.

Finally, official recognition was taken of the Order of Dismissal

with Leave to Amend and Final Order of Dismissal without

Prejudice in the matter of Berthony Adolphe, et al. v. Florida

Birth-Related Neurological Injury Compensation Association, et

al. , DOAH Case No. 99-2901N, as well as the C orrected O pinion and

M andate in the matter of Timothy D. O'Leary, M.D., et al. v.

Florida Birth-Related Neurological Injury Compensation

Association et al. , District Court of Appeal of the State of

Florida, Fifth District, true copies of which were attached to

the Notice of Intention to Take Official Recognition, dated June

19, 2000. The O'Leary opinion has since been reported at 25 Fla.

L. Weekly D1234 (5th DCA, May 19, 2000).

The transcript of the hearing was filed on June 22, 2000,

and the parties were initially accorded 10 days from that date to

file proposed final orders; however, at Petitioners' request the

deadline was ultimately extended to July 15, 2000. Consequently,

the parties waived the requirement that a final order be rendered

within 30 days after the transcript has been filed. Rule 28-

106.216(2), Florida Administrative Code. The parties elected to

file such proposals and they have been duly considered.

FINDINGS OF FACT

1. Mauricio Gugelmin and Stella Gugelmin are the parents

and natural guardians of Giuliano Gugelmin (Giuliano), a minor.

Giuliano was born a live infant on July 14, 1994, at South

Broward Hospital District, d/b/a Memorial Hospital West (the

Hospital), a hospital located in Broward County, Florida, and his

birth weight was in excess of 2500 grams.

2. The physician providing obstetrical services during the

birth of Giuliano was Eric N. Freling, M.D., who was at all times

material hereto, a "participating physician" in the Florida

Birth-Related Neurological Injury Compensation Plan (the Plan),

as defined by Section 766.302(7), Florida Statutes.

3. Pertinent to this case, coverage is afforded by the Plan

for infants who have suffered a "birth-related neurological

injury," defined as an "injury to the brain . . . caused by

oxygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation in the immediate post-

delivery period in a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here,

the parties have stipulated that Giuliano suffered a "birth-

related neurological injury," as that term is defined by the

Plan, and NICA proposes to accept the claim as compensable. The

parties' stipulation is grossly consistent with the proof and,

consequently, it is resolved that NICA's proposal to accept the

claim as compensable is approved.

4. While the claim qualifies for coverage under the Plan,

Petitioners have responded to the health care providers' claim of

Plan immunity in the collateral civil action by claiming that the

health care providers failed to comply with the notice provisions

of the Plan. Consequently, it is necessary to resolve whether,

as alleged, proper notice was given.

5. Regarding the notice issue, it must be resolved that the

proof failed to demonstrate, more likely than not, that

Dr. Freling provided Mrs. Gugelmin any notice of his

participation in the Plan or any explanation of a patient's

rights and limitations under the Plan. Indeed, the more

compelling proof was to the contrary. Moreover, there was no

proof to support a conclusion that Dr. Freling's failure to

accord notice was occasioned by a medical emergency or that the

giving of notice was otherwise not practicable.

6. While Dr. Freling failed to give notice, the Hospital

did, as required by law, provide timely notice to Mrs. Gugelmin

as to the limited no-fault alternative for birth-related

neurological injuries. That notice included, as required, an

explanation of a patient's rights and limitations under the Plan,

and was given at 11:45 a.m., July 13, 1994, shortly after

Mrs. Gugelmin's admission to the hospital (which occurred at

approximately 11:22 a.m., July 13, 1994). Giuliano was delivered

at 12:25 a.m., July 14, 1994.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

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

proceedings. Section 766.301, et seq ., Florida Statutes.

8. 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.

9. 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. 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.

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

is a compensable birth-related neurological injury, as it has in

the instant case, 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. Section 766.305(6),

Florida Statutes.

11. 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. 766.303(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.

Section 766.309(1), Florida Statutes. 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." Section 766.31(1), Florida Statutes.

12. Pertinent to this case, "birth-related neurological

injury" is defined by Section 766.302(2), Florida Statutes, to

mean:

. . . injury to the brain 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 post-delivery 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.

13. As the claimants, the burden rests on Petitioners to

demonstrate entitlement to compensation. Section 766.309(1)(a),

Florida Statutes. See also Balino v. Department of Health and

Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1977)

("[T]he burden of proof, apart from statute, is on the party

asserting the affirmative issue before an administrative

tribunal.")

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

otherwise compelling, that the physician who provided obstetrical

services at birth was a "participating physician," as that term

is defined by the Plan, and that Giuliano suffered a "birth-

related neurological injury," as that term is defined by the

Plan. Consequently, Giuliano qualifies for coverage under the

Plan. Section 766.309, Florida Statutes.

15. Where, as here, it is resolved that an infant qualifies

for coverage under the Plan, a civil action is normally

foreclosed. Section 766.303(2), Florida Statutes, and Section

766.304, Florida Statutes ("If the administrative law judge

determines that the claimant is entitled 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.") See also Gilbert v. Florida Birth-Related

Neurological Injury Compensation Association , 724 So. 2d 688, 690

(Fla. 2nd DCA 1999)("[I]f an administrative petition results in a

determination that the infant is a NICA baby, a civil action is

foreclosed.") The Plan is a substitute, a "limited no-fault

alternative," for common-law rights and liabilities. Section

766.301(2), Florida Statutes. See also Section 766.303(2),

Florida Statutes, and Florida Birth-Related Neurological Injury

Compensation Association v. McKaughan , 668 So. 2d 974 (Fla.

1996). Regarding 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

personal 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 related 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.

16. With but two exceptions, the statute forecloses any

civil action against a NICA participant when the injury is of the

type defined in Section 766.302(2), Florida Statutes. Barden v.

Haddox , 695 So. 2d 1271 (Fla. 5th DCA 1997). The first exception

is prescribed by Subsection 766.303(2) which permits a civil

action "where there is clear and convincing evidence of bad faith

or malicious purpose or willful and wanton disregard of human

rights, safety, or property." The second exception is based on

an interpretation of Section 766.316, which, pertinent to this

case, provided: 3

Notice to obstetrical patients of

participation in the plan.--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 thereof 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.

17. In Galen of Florida, Inc. v. Braniff , 696 So. 2d 308,

309 (Fla. 1977), the Florida Supreme Court described the

legislative intent and purpose of the notice requirement as

follows:

. . . the only logical reading of the statute

is that before an obstetrical patient's

remedy is limited by the NICA plan, the

patient must be given pre-delivery notice of

the health care provider's participation in

the plan. Section 766.316 requires that

obstetrical patients be given notice "as to

the limited no-fault alternative for birth-

related neurological injuries." That notice

must "include a clear and concise explanation

of a patient's rights and limitations under

the plan." § 766.316. This language makes

clear that the purpose of the notice is to

give an obstetrical patient an opportunity to

make an informed choice between using a

health care provider participating in the

NICA plan or using a provider who is not a

participant and thereby preserving her civil

remedies. Turner v. Hubrich , 656 So. 2d 970,

971 (Fla. 5th DCA 1995). In order to

effectuate this purpose a NICA participant

must give a patient notice of the "no-fault

alternative for birth-related neurological

injuries" a reasonable time prior to

delivery, when practicable.

Consequently, the court concluded:

. . . as a condition precedent to invoking

the Florida Birth-Related Neurological Injury

Compensation Plan as a patient's exclusive

remedy, health care providers must, when

practicable, give their obstetrical patients

notice of their participation in the plan a

reasonable time prior to delivery.

Such mandate dictates that where, as here, notice was not given

by the "participating physician" (the Plan participant), 4 the

patient may accept compensation under the Plan (thereby

foreclosing the filing or continuation of any civil action) or

reject the Plan benefits and pursue their common-law remedies.

That the hospital may have complied with the notice provisions of

Section 766.316, as it did in this case, does not alter the

options or accord the hospital any benefit independent of that

enjoyed by the "participating physician." See Section

766.303(2), Florida Statutes.

18. In reaching the foregoing conclusion, the Hospital's

argument that by giving notice "the District [Hospital] has met

and fulfilled the condition precedent to invoking NICA as the

exclusive remedy as to liability of the [Hospital]" has not been

overlooked; however, there is no rational basis to embrace the

Hospital's argument or stated differently, to accord the Hospital

or the claimants any rights or remedies beyond those expressed in

the Plan. In so concluding, it is observed that there is nothing

in the language chosen by the Legislature that would suggest that

a hospital or other provider involved in the birth process enjoys

any benefit ( i.e. , Plan immunity) independently from that enjoyed

by the "participating physician." Stated differently, Plan

immunity is inclusive, not severable. See Section 766.303(2),

Florida Statutes (The rights and remedies granted by the Plan are

exclusive of any civil or other remedies that may be available

"against any person or entity directly involved [in the birth

process during which the injury occurs.]" See also Gilbert v.

Florida Birth-Related Neurological Injury Compensation

Association , supra , at page 690 ("[I]f an administrative petition

results in a determination, that the infant is a NICA baby, a

civil action is foreclosed . . . [since] [t]he remedies are

mutually exclusive.") Moreover, there is nothing in the

rationale announced in Galen that would suggest or compel a

different result. In summary, it must be resolved that where, as

here, the participating physician failed to give the patient

notice, neither the hospital (even though it gave notice) nor any

other health care provider involved in the birth process can

enforce the exclusivity of the Plan. Rather, acceptance or

rejection of the Plan benefits under such circumstances is, as it

is under the exception established by Section 766.303(2), a right

personal to the claimants. If accepted, the Plan forecloses a

civil action against all the health care providers. Conversely,

if rejected, the claimants may proceed with their civil remedies,

and the health care providers enjoy no greater benefit (under the

Plan) then they would have enjoyed had obstetrical services been

rendered by a physician who had elected not to participate in the

Plan.

19. Apart from the exceptions discussed supra , the Plan is

designed to foreclose any civil action against a NICA participant

when the injury is of the type defined in Section 766.302(2),

Florida Statutes, and obstetrical services were provided at birth

by a "participating physician;" however, the Plan "is not without

defects" and, as history has shown, its implementation has, on

occasion, proved cumbersome. Central Florida Regional Hospital,

Inc. v. Wagner , 656 So. 2d 491, 493 (Fla. 5th DCA 1995).

Frequently, parents elected to file a medical malpractice action

against the participating obstetrician and hospital, rather than

seek the benefits of the Plan. When the medical providers raised

the exclusivity of the Plan as an affirmative defense, they were

left to litigate the issue of coverage in the civil action. 5

Florida Birth-Related Neurological Injury Compensation

Association v. McKaughan , 668 So. 2d 974 (Fla. 1996). Accord

Central Florida Regional Hospital, Inc. v. Wagner , supra ; White

v. Florida Birth-Related Neurological Injury Compensation

Association , 655 So. 2d 1292 (Fla. 5th DCA 1995); and Board of

Regents of the State of Florida v. Athey , 694 So. 2d 46 (Fla. 1st

DCA 1997). Moreover, when the parents traversed the providers'

defense of exclusivity, by alleging that they had not been

accorded notice as required by Section 766.316, Florida Statutes,

the providers were compelled to litigate both notice and coverage

in the civil action. Board of Regents of the State of Florida v.

Athey , supra .

20. In response to the foregoing, the Legislature adopted

Section 6, Chapter 98-113, Laws of Florida, which amended

Sections 766.301 and 766.304, Florida Statutes, effective July 1,

1998. Pertinent to this case, the amendments to Section 766.301

were as follows:

(1) The Legislature makes the following

finding:

* * *

(d) The costs of birth-related neurological

injury claims are particularly high and

warrant the establishment of a limited system

of compensation irrespective of fault. This

issue of whether such claims are covered by

this act must be determined exclusively in an

administrative proceeding. (Amendment

emphasized.)

Pertinent to this case, the amendments to Section 766.304 were as

follows:

The administrative law judge shall hear and

determine 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 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 administrative law judge. If the

administrative law judge determines that the

claimant is entitled 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. 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.

. . . (Amendment emphasized.)

21. Given the amendments to Sections 766.301 and 766.304,

Florida Statutes, it has been resolved that the Legislature

intended to change the status quo and to compel resolution of any

issue regarding coverage, including the adequacy of notice, in

the administrative forum. O'Leary v. Florida Birth-Related

Neurological Injury Compensation Plan , 25 Fla. L. Weekly D1234

(5th DCA, May 19, 2000). As noted by the Court in O'Leary , at

page D1235:

The language used by the legislature in its

amendment to the Act indicates that the

administrative judge is to determine all

matters relative to a claim. Notably, the

determination of the adequacy of notice is

not excluded from the duties of the

administrative law judge. Section 766.304

states that the administrative law judge

shall hear all claims and shall exercise the

full power and authority granted that is

necessary to carry out the purposes of the

section. The section further grants

exclusive jurisdiction to the administrative

law judge to determine whether a claim is

compensable and precludes any civil action

until the issue of compensability is

determined. We believe that under these

amendments, any issue raising the immunity of

a health provider, including the issue of

whether the health provider satisfied the

notice requirements of the Plan is an issue

to be decided by the administrative law judge

as one which relates to the question of

whether the claim is compensable under the

Plan. We recognize that lack of proper

notice does not affect a claimant's ability

to obtain compensation from the Plan.

However, a health provider who disputes a

plaintiff's assertion of inadequate notice is

raising the issue of whether a claim can only

be compensated under the plan. All questions

of compensability, including those which

arise regarding the adequacy of notice, are

properly decided in the administrative forum.

22. Here, it has been resolved that the infant qualifies

for coverage under the Plan, but that the participating physician

failed to accord the obstetrical patient notice of his

participation. Consequently, Petitioners may, at their election,

accept compensation under the Plan or reject the Plan benefits

and continue with their civil action. See O'Leary v. Florida

Birth-Related Neurological Injury Compensation Plan , supra , at

page D1235 ("[L]ack of notice does not affect a claimant's

ability to obtain compensation from the Plan. However, a health

provider who disputes a plaintiff's assertion of inadequate

notice is raising the issue of whether a claim can only be

compensated under the plan."), and Gilbert v. Florida Birth-

Related Neurological Injury Compensation Association , supra . 6

23. While the Plan has been interpreted by the courts to

accord claimants, such as Petitioners, the option to accept

coverage under the Plan (thereby foreclosing the filing or

continuation of any civil action) or to reject the Plan benefits

and pursue their common law remedies, neither the Plan nor the

courts expressly address how or when that election must be

manifested. Notably, however, the Plan does speak to such

matters with regard to the first exception to the exclusivity of

the remedy afforded by the Plan. That exception, as heretofore

noted, is prescribed by Section 766.303(2), Florida Statutes,

which permits a civil action under the following circumstances:

. . . 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

providing for in s. 766.311. (Emphasis

added.)

24. Since the courts have interpreted the Legislature's

intention with regard to the notice requirements of Section

766.316 to accord claimants, such as P etitioners, the option of

accepting or rejecting Plan coverage, it is reasonable to infer

that, as with the first exception, the Legislature intended that

a claimant's election to proceed with their common law remedies

be evidenced "prior to and in lieu of payment of an award under

ss. 766.301-766.316," and that such election be made "before the

award of the division becomes conclusive and binding as provided

for in s. 766.311." Therefore, absent the rejection of the award

before it becomes final as provided in Section 766.311, it

reasonably follows that the remedy accorded by the Plan will be

considered exclusive and will bar the filing or continuation of

any civil action.

25. Where, as here, the administrative law judge determines

that "the infant has sustained a birth-related neurological

injury and that obstetrical services were delivered by a

participating physician at birth," the administrative law judge

is required to make a determination as to "how much compensation,

if any, is to be awarded pursuant to s. 766.31." Section

766.309(1)(c), Florida Statutes. In this case, the issues of

compensability and the amount of compensation to be awarded were

bifurcated. Accordingly, absent agreement by the parties, or

rejection of this award by the claimants, a further hearing will

be necessary to resolve any existing disputes regarding "actual

expenses," the amount and manner of payment of "an award to the

parents or natural guardians," and the "reasonable expenses

incurred in connection with the filing of the claim." Section

766.31(1), Florida Statutes. Nevertheless, and notwithstanding

that matters related to the amount of compensation may need to be

addressed (absent rejection of Plan benefits by Petitioners), the

determination that the claim qualifies for compensation under the

Plan constitutes final agency action subject to appellate court

review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that:

1. The claim for compensation filed by Mauricio Gugelmin

and Stella Gugelmin, as parents and natural guardians of Giuliano

Gugelmin, a minor, and NICA's acceptance of the claim for

compensation be and the same is hereby approved.

2. NICA shall make immediate payment of all expenses

previously incurred, and shall make payment for future expenses

as incurred.

3. Mauricio Gugelmin and Stella Gugelmin, as the parents

and natural guardians of Giuliano Gugelmin, a minor, are entitled

to an award of up to $100,000. The parties are accorded 45 days

from the date of this order to resolve, subject to approval by

the administrative law judge, the amount and manner in which the

award should be paid. If not resolved within such period, the

parties will so advise the administrative law judge, and a

hearing will be scheduled to resolve such issue.

4. Petitioners are entitled to an award of reasonable

expenses incurred in connection with the filing of the claim,

including reasonable attorney's fees. The parties are accorded

45 days from the date of this order to resolve, subject to

approval by the administrative law judge, the amount of such

award. If not resolved within such period, the parties will so

advise the administrative law judge, and a hearing will be

scheduled to resolve such issue.

5. 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 this 26th day of September, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of September, 2000.

ENDNOTES

1/ Presumably, consistent with the mandate of Section 766.304,

Florida Statutes, the civil action will remain stayed until the

issue of compensability, including the issue of notice has been

resolved.

2/ Petitioners' Exhibit 2A did not include any documents

identified as deposition exhibits A-3, A-6, A-8, or A-10.

3/ Effective July 1, 1998, Section 766.316, Florida Statutes,

was amended to read as follows:

. . . 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. (Amendment

emphasized.)

Section 7, Chapter 98-113, Laws of Florida, provided that the

"[a]mendments to section 766.316, Florida Statutes, shall take

effect July 1, 1998, and shall apply only to causes of action

accruing on or after that date." However, such amendments

basically codified the conclusions reached in Galen of Florida

Inc. v. Braniff , discussed infra .

4/ A plan participant (a "participating physician") is a term of

art, as that term is used in the Plan, and describes a "physician

licensed pursuant to Chapter 458 or 459 who wishes to participate

in the Florida Birth-Related Neurological Injury Compensation

Plan . . . [,] who otherwise qualifies as a participating

physician under ss. 766.301-766.316," and who has paid the

special assessment required for participation. Section

766.314(4)(c) and (5)(a), Florida Statutes. Clearly, not all

qualified physicians are required to participate in the Plan.

See Galen of Florida, Inc. v. Braniff , supra . Distinguished from

a plan participant are other physicians (including physicians who

do not choose to participate in the Plan), as well as all

hospitals at which infants are delivered, who pay an annual

assessment or "tax" (except, inter alia , "a hospital owned or

operated by . . . a county . . . [or] special taxing district,"

such as the Intervenor Hospital), to help maintain the fund on an

actuarially sound basis. See , e.g. , Coy v. Florida Birth-Related

Neurological Injury Compensation Plan , 595 So. 2d 943 (1992),

certiorari denied 113 S. Ct. 194, 506 U.S. 867, 121 L. Ed.2d 137.

5/ The Plan does not accord a participating physician or other

healthcare provider any right or opportunity to initiate such a

claim, and initially provided no opportunity to compel the

resolution of any dispute regarding the compensability of any

injury to an infant, before DOAH. See Sections 766.302(3) and

766.305(1), Florida Statutes (1997). Compare Sections

766.301(1)(d) and 766.304, Florida Statutes (1998 Supp.). See

also Florida Birth-Related Neurological Injury Compensation

Association v. McKaughan , supra .

6/ Where, as here, a health care provider disputes a

Petitioner's assertion of inadequate notice, the burden is on the

health care provider to demonstrate, more likely than not, that

proper notice was given or that failure to accord notice should

be excused because of a medical emergency or because the giving

of notice was otherwise not practicable. Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349, 350 (Fla. 1st

DCA 1977)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative issue before an administrative

tribunal.") See also Galen of Florida, Inc. v. Braniff , 696 So.

2d 308, 311 (Fla. 1997)("[T]he assertion of NICA exclusivity is

an affirmative defense.")

COPIES FURNISHED:

(By certified mail)

Ben J. Weaver, Esquire

Dianne Jay Weaver, Esquire

Krupnick, Campbell, Malone, Roselli,

Buser, Slama & Hancock, P.A.

Courthouse Law Plaza, Suite 100

700 Southeast Third Avenue

Fort Lauderdale, Florida 33316

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

George E. Bunnell, Esquire

D. David Keller, Esquire

Bunnell, Woulfe, Kirschbaum, Keller,

Cohen & McIntyre, P.A.

888 East Las Olas Boulevard, Suite 400

Fort Lauderdale, Florida 33301

Lynn Larson, Executive Director

Florida Birth-Related Neurological

Injury Compensation Association

Post Office Box 14567

Tallahassee, Florida 32317-4567

Eric N. Freling, M.D.

3850 Hollywood Boulevard, Suite 301

Hollywood, Florida 33021

Memorial Hospital West

Legal Department

703 North Flamingo Road

Pembroke Pines, Florida 33028

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Daniel Y. Sumner, General Counsel

Department of Insurance

The Capitol, Lower Level 26

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.