Florida's birth-related injury 'plan' no bar to suit.

CASE ON POINT: Macri v. Clements and Ashmore,-FL-0717.082 (7/16/2009)-FL

ISSUE: Due to the extraordinarily large amounts awarded by juries in cases involving birth-related neurological injuries, the State of Florida, some years ago, enacted the Birth-Related Neurological Injury Compensation Plan (Plan). Under the Plan, the representatives of a child who has been injured or died as a result of a neurological injury which occurred during the course of child birth, is limited to what is awarded under the Plan. Ordinarily, the award under the Plan is the sole remedy which the parents of a newborn who has been injured or died as a result of a birth-related neurological injury. They have no other remedy. However, there are exceptions! The Florida courts were confronted with just such a case. The case was decided one way by a trial court and another way by an appellate court. What was the final outcome?

CASE FACTS: Joni and Nicodemo Macri, were the parents of Jena Macri, who allegedly died as a result of the negligence and malpractice of the hospital at which she was born, and the negligence and medical malpractice of the physicians and their professional groups, as well as Rachel Depart, a Certified Nurse Midwife (CNM), who participated in the pre and post-delivery care of Jena and her mother. The Macris chose not to seek recovery under the Plan. Instead, they brought suit against the doctors and their professional groups as well as Rachel Depart, the CNM who cared for Jena and her mother. The Macris alleged that the defendants were responsible for the injuries and death of Jena, which was a result of their malpractice in the birth and death of their daughter. The trial court granted the defendants' motion for summary judgment dismissing the case on the grounds that the Plan was the sole and exclusive remedy that the Macris had to receive compensation for the birth related injury and death of their daughter as a result of the allegedly willful and wanton negligence of the defendants. The trial court found that since the Macris had opted not to participate in seeking compensation under the Plan, the Macris had no other remedy available to them. Accordingly, the trial court granted the defendants' motion for summary judgment on the grounds that the sole and exclusive remedy for compensation for the Macris was compensation under the Plan. The trial court focused on that part of the Plan which provided, inter alia, that no civil action may be pursued until determinations are made under the Plan as to whether there is a birth-related injury. The Macris appealed the trial court's order granting the defendants' motion to dismiss their case.

COURT'S OPINION: The District Court of Appeal of Florida reversed the order of the trial court ,which entered judgment for the defendants. The court remanded the case back to the trial court for trial. The court held, inter alia, that although Florida has a neurological birth injury law, which the Macris failed to invoke, there was an exception in the law regarding claims made for 'willful and wanton' conduct. The court concluded that the Macris were entitled to proceed against the defendants under this exception to Florida law.

LEGAL COMMENTARY: The hospital involved had been dismissed from the Macris' suit. Upon settlement of the case, however, the case proceeded against the defendant physicians, their professional groups and Rachel Depart, the CNM who participated in the delivery of Jena as well as providing pre and post-delivery care of both mother and child. The court agreed with the Macris' contention that they were not precluded from bringing suit against the defendant doctors and their groups as well as the CNM involved in the case. The court focused on the fact that to successfully invoke the provisions of the Florida Law limiting patients to the amount determined by the neurological injury law, physicians must notify their patients of the fact that they, the attending healthcare providers, participate in the program, and that the amount of any recovery is limited to the amount awarded. The court found that the defendants provided the Macris the required notice. It was observed that the notice, which was provided by 'only one' of the several defendants in the case, should be applicable to all of the defendants. The court concluded that the trial court erred in granting the defendants' motion for summary judgment. Further, the court noted that the Nurse Midwife did not have to provide her own notice, but could use the notice provided by the other defendants. Thus, the Nurse Midwife was not required to provide notice to the Macris because she was not participating in rendering care as a doctor. Accordingly, the Macris prevailed by virtue of their contention that their allegations that the defendants' conduct was 'wilful and wanton,' took the case out from under the constraints of Florida's Birth-Related Neurological Injury Plan. Accordingly, the court agreed that the Macris' challenge to the trial court's order entering summary judgment for the defendants as to their injury and wrongful death claims was viable. The court pointed out that the invocation of the bar to the suit, as set forth in Florida law, was an affirmative defense, which the defendants were required to present, and that the plaintiffs were not required to anticipate it in their complaint.