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Rinella v. Abifaraj8/4/2005
Appellants/cross-appellees, the Florida Birth-Related Neurological Injury Compensation Association ("NICA"), Plantation General Hospital, Dr. John L. Rinella, Dr. Joaquin Taranco, and each doctor's professional association, seek review of a final order entered by the administrative law judge ("ALJ") on a petition for benefits filed by appellees/cross- appellants, Bassam and Rayya Abifaraj, pursuant to the Florida Birth- Related Neurological Injury Compensation Plan ("NICA plan") contained in sections 766.301-766.316, Florida Statutes (1997). Appellants raise two issues on appeal, only one of which warrants discussion. On cross- appeal, appellees raise two additional issues, neither of which warrants discussion. Appellants argue that the ALJ erred in determining that he was without jurisdiction to rule upon appellees' claim that the NICA plan was not their exclusive remedy because of the willful and wanton exception enumerated in section 766.303(2), Florida Statutes (1997). Because we find that the ALJ properly found that he lacked jurisdiction to determine the applicability of the willful and wanton exception to NICA plan exclusivity, we affirm.
Appellees initially filed a medical malpractice lawsuit in the circuit court against appellants Plantation General Hospital, Dr. Rinella, Dr. Taranco, and each doctor's professional association, seeking damages for the wrongful death of their baby, Samer Abifaraj, and for physical injury to Rayya Abifaraj caused by the rupture of her uterus. The circuit court entered an order abating appellees' claims until the necessary determinations under section 766.304, Florida Statutes, were made by the ALJ. Appellees subsequently filed a petition for benefits under the NICA plan with the Division of Administrative Hearings, in which they asserted that the NICA plan was not their exclusive remedy because there was clear and convincing evidence that the healthcare providers acted with willful and wanton disregard for human rights, safety, or property and because they did not receive the statutorily required notice of Dr. Rinella's participation in the NICA plan. Appellant NICA, which administers the NICA plan, responded to the petition and agreed that the claim was compensable. After determining that appellees' claim was compensable under the NICA plan and that Dr. Rinella provided adequate notice while the hospital did not, the ALJ found that he was without jurisdiction to decide the willful and wanton issue. This appeal followed.
We review an ALJ's interpretation of the NICA plan de novo. Schur v. Fla. Birth-Related Neurological, 832 So. 2d 188 (Fla. 1st DCA 2002). As amended in 1998, section 766.304, Florida Statutes, grants the ALJ exclusive jurisdiction to determine whether a claim for NICA plan benefits is compensable and references section 766.309 for a list of issues that the ALJ must decide in determining compensability. Section 766.309(1), Florida Statutes (1997), provides that the ALJ must make the following determinations: (a) " hether the injury claimed is a birth-related neurological injury," (b) " hether 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," and (c) " ow much compensation, if any, is awardable," pursuant to section 766.31. The ALJ also has jurisdiction to make factual findings concerning whether the notice requirement found in section 766.316 has been satisfied. Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 880 So. 2d 1253, 1258 (Fla. 1st DCA 2004); Univ. of Miami v. M.A., 793 So. 2d 999, 1000 (Fla. 3d DCA 2001); O'Leary v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 757 So. 2d 624, 627 (Fla. 5th DCA 2
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