 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Romine v. Florida Birth Related Neurological Injury Compensation Association2/14/2003
John and Rebecca Romine, individually and as parents and next friends of Loren Romine, a minor, appeal a final administrative order dismissing with prejudice their petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan ("NICA"), sections 766.301-.316, Florida Statutes (1998). Ruling on stipulated facts, the administrative law judge (ALJ) determined that although Loren suffered a "birth-related neurological injury," the Romines' were precluded from obtaining NICA benefits because they had settled a medical malpractice claim against the doctor and hospital involved in Loren's birth. The sole issue on appeal is whether it was error to retroactively apply the July 1, 1998 amendment to section 766.304, Florida Statutes, barring the recovery of NICA benefits where, as here, there has previously been a civil recovery.
Loren, the infant daughter of John and Rebecca Romine, was born January 26, 1998, with an injury to the brain or spinal cord caused by oxygen deprivation due to a mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period, which rendered her permanently and substantially mentally and physically impaired. Loren's injury was thus compensable under NICA. In December, 1998, the Romines served a notice of intent to initiate litigation for medical negligence pursuant to section 766.106, Florida Statutes (1998), on Dr. Samir Shakfeh, the attending obstetrician, and HCA Health Services d/b/a Columbia Regional Medical Center-Oak Hill, the hospital where Loren was born. Shakfeh and HCA were both participating NICA providers.
After Shakfeh and HCA denied the Romines' claim, suit was filed. Shakfeh and HCA denied liability for Loren's injuries and asserted NICA immunity as an affirmative defense. HCA then filed a motion to abate the civil action until the Romines filed a petition for NICA benefits with the Division of Administrative Hearings (DOAH), and a determination had been made whether Loren suffered an injury compensable by NICA and whether Shakfeh and HCA had complied with NICA's notice provisions. Before the motion to abate was heard by the court, the parties settled the civil suit. The Romines then filed a claim for NICA benefits. NICA responded to the petition for compensation by asserting that the Romines' claim was waived or otherwise barred because of their recovery in the civil action. Additionally, NICA asserted the affirmative defenses of election of remedies, estoppel, and set off.
After considering the parties' stipulation of facts, the ALJ entered a detailed final order, determining that although Loren would have been entitled to receive NICA benefits, she was precluded from doing so because she had already "recovered" in her civil action for medical malpractice against the treating obstetrician, Shakfeh, and the hospital, HCA. While acknowledging that the doctrine of election of remedies did not apply to bar a petition for benefits under the NICA statutes in effect at the time of Loren's birth, the ALJ concluded that chapter 98-113, Laws of Florida, amending chapter 766, effective July 1, 1998, included such a prohibition. Thus, the ALJ found that because the Romines' claim for benefits was filed after the effective date of the statutory amendment, the amendment applied and barred the Romines' claim.
Because the interpretation of a statute is a pure question of law, we review the matter de novo. See Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 813 So. 2d 155, 159 (Fla. 4th DCA 2002). NICA was established by the Legislature to provide no-fault compensation for certain infants who sustained birth-related neurological injuries. See ยงยง 766.301-.3
Page 1 2 3 4 5 Florida Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|