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Florida Birth-Related Neurological Injury Compensation Association v. Jimenez

Florida Court of Appeals, Third District

August 28, 2019

Florida Birth-Related Neurological Injury Compensation Association, et al., Appellants,
v.
Luis Arturo Jimenez, et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the State of Florida Division of Administrative Hearings Lower Tribunal No. 16-3531N.

          Frank, Weinberg & Black, P.L., and David W. Black (Plantation); Brewton Plante, P.A., Wilbur E. Brewton and Kelly B. Plante (Tallahassee); Falk, Waas, Hernandez & Solomon, P.A., Scott E. Solomon and Paige I. Saperstein, for appellants.

          Diez-Arguelles & Tejedor, P.A., and Maria D. Tejedor (Orlando); Fox & Loquasto, LLC, Wendy S. Loquasto and Susan W. Fox (Tallahassee), for appellees.

          Before SALTER, FERNANDEZ and LINDSEY, JJ.

          PER CURIAM.

         Florida Birth-Related Neurological Injury Compensation Association ("NICA") appeals an Administrative Law Judge's ("ALJ's") final order granting the appellees' motion for voluntary dismissal of their statutory claim with prejudice. Finding no departure from the terms of the Florida Birth-Related Neurological Injury Compensation Plan, sections 766.301-.316, Florida Statutes (2018) (the "Plan"), [1] we affirm the final order.

         Facts and Proceedings Below

         The appellees ("Parents") are the parents of a minor child (the "Child") who sustained a birth-related neurological injury. NICA is the statutory entity created by the Plan to (a) collect assessments from the licensed physicians and hospitals practicing obstetrics or delivering obstetrical services, and (b) pay administratively-allowed claims, all as described in the Plan.[2]

         The Child was born on April 8, 2014, prematurely, and thereafter was diagnosed with cerebral palsy. In 2016, the Parents filed a "Petition Under Protest" pursuant to the Plan, expressly disclosing their contentions that the Plan is unconstitutional and that they claim a right to file a lawsuit in court without pursuing the statutory, exclusive administrative route established by the Legislature.

         A year later, the ALJ issued a partial summary final order determining that the Child had sustained a qualifying birth-related neurological injury under the Plan, and that the Parents' claim was thus compensable by NICA. That order retained jurisdiction for further determinations regarding (a) the Hospital's and physician's compliance with the Plan's notice requirement in 766.316, and (b) the amounts and terms of an award under 766.31.

         In 2018, the ALJ issued a summary final order determining that the statutory notice requirements were excused under 766.316 due to the Child's emergency medical condition at the time of treatment. That order gave the parties 30 days to agree, subject to approval by the ALJ, on the amount and payment of an administrative award, including the Parents' reasonable expenses and statutory attorney's fees incurred and owing.

         In the absence of such an agreement, the ALJ indicated that a hearing would be scheduled and "an award made consistent with section 766.31." In response, the Parents advised NICA and the ALJ that they "have affirmatively elected to not accept any compensation or award from the [Plan] and instead elected to pursue a civil action pursuant to section 766.303." That statute includes an exception to the otherwise-applicable exclusive remedy provided by the Plan:

[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 of Administrative Hearings of the Department of Management Services] becomes conclusive and binding as provided for in s. 766.311.

§ 766.303(2), Fla. Stat.

         The Parents' response further stated that they "have unequivocally expressed their intent to not accept any future award under the Plan." After filing that response, the Parents filed a notice of voluntary dismissal of the petition with prejudice, confirming again that they were not accepting any compensation or award from the Plan.

         NICA and the Hospital moved to strike the Parents' notice of voluntary dismissal with prejudice, contending that any election of remedies must be made in circuit court, and that 766.31(1) obligates the ALJ to ...


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