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Gilbert v. Florida Birth-Related Neurological Injury Compensation Association and Humana of Florida Inc.1/22/1999
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
Appeal from the Division of Administrative Hearings.
Richard A. Gilbert, as Michael McKaughan's guardian ad litem, appeals from a summary order of an administrative law Judge which dismisses his petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). We reverse the order and remand for reinstatement of the petition and further proceedings.
This litigation began in January 1992 when Jaimes McKaughan and Darlene McKaughan-Lack, Michael's parents, filed a medical malpractice action against William L. Capps, M.D., Kenneth Soloman, M.D., and their professional associations, and Humana of Florida, Inc., d/b/a Humana Women's Hospital Tampa. The suit alleged that the defendants' negligence caused Michael to suffer injuries at or near the time of his birth on May 19, 1989, which rendered him a quadriplegic with substantial mental impairment. Dr. Capps provided the obstetrical services during Michael's birth, and Dr. Soloman provided neonatal care subsequent to the birth. The defendants asserted, as affirmative defenses, that the suit was barred by virtue of the Plan's statutory provisions affording an exclusive administrative remedy for infants who sustain birth-related neurological injuries.
The trial court stayed the action and directed the McKaughans to file a petition for benefits under the Plan. They did so, but alleged in their petition that Michael had not suffered a birth-related neurological injury as defined by the Plan. In that proceeding, the administrative law Judge dismissed the petition, finding that it would be rather anomalous to accede, as suggested by the circuit court, and accept the petition, as filed, where the petitioners have the burden of demonstrating entitlement to benefits under the Plan, but propose to prove a negative: that they are not entitled to such benefits. Section 766.309(1)(a).
The medical malpractice defendants, who had been granted leave to intervene in the administrative proceeding, together with the Florida Birth-Related Neurological Injury Compensation Association (NICA), appealed that decision to this court.
In Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852 (Fla. 2d DCA 1995) ("McKaughan I"), this court affirmed the dismissal, holding that the issue of the exclusive remedy of the Plan was the proper subject of litigation and determination in the circuit court as an affirmative defense in that action. We certified the issue to our supreme court. In Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan, 668 So. 2d 974 (Fla. 1996) ("McKaughan II"), the supreme court approved our decision, holding that the Plan does not vest exclusive jurisdiction in an administrative hearing officer to determine if an injury suffered by a newborn infant is covered by the Plan when the Plan's provisions are raised as an affirmative defense to a medical malpractice action in the circuit court.
The action in the circuit court then resumed, where Humana filed a motion to appoint a guardian ad litem for Michael. The motion alleged that a conflict of interest existed between Michael and his parents on the issue of whether he had suffered a birth-related neurological injury covered by the Plan. Richard Gilbert was appointed as the guardian ad litem on May 7, 1996. On May 16, 1996, he filed an administrative petition on Michael's behalf for Plan benefits. However, the claim was abated by order dated July 8, 1996, pending a Florida Supreme Court decision on the issue of pre-delivery notice of NICA participation.
The civil action then proceeded towards
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