MARSHAL: PLEASE RISE. HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF FLORIDAIS NOW IN SESSION.ALL WHO HAVE CA USE TO PLEA, DRAW NEAR , GIVE ATTENTIO N AND YOU SHALL BE HEAR D. GOD SAVE THESE UNITED S T ATES , THIS GREAT STATE OF FLORIDA AND THIS HONORA BLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SE ATED.
CHIEF JUSTICE: G OOD MORNING , LADIES ANDGENTLEMEN, AND WELCOME T O THE FLORIDA SUPREME COURT. THE FIRST CASE ON THIS MORNING'S DOCK ET IS FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION OR N ICA , VERSUS , AN INTERESTING STYLE, VERSUS THE FLAT DEPART MENT OF ADMINISTRATIVE HEARINGS , ANDWE HAVE , HERE , MR . BRUTON .
YE S.
CHIEF JUSTICE: I WANT TO MAKE SURE I UNDERSTAND THE TIME. YOU WILL TAKE 8 MINUTES, AND THEN MR. HUNTER W ILL TAKE 7 , AND THEN YOU WILL BE RESERVING
FIVE FOR REBUTTAL.
CHIEF JUSTICE: ALL RIGHT.THANK YOU. IF YOU GO OVER YOUR 8 , YOU ARE INTO HIS TIME. THANK YOU.MAY IT PLEASE THE COURT. MY NAME IS WIL BUR BR UTON AND I REPRESENT NICA AS GENERAL COUNSEL. THE BRIEF STATEMENT OF THE FACTS OF THESE TWO CA SES IS FURING SON OF NICA AEALED THE ADMINISTRATIVE LAW JUDGE'S DETERMINATION OF FACT , AS CONTRASTED TO THENOTICE, ITSELF. BELOW ONE ENTIT Y HAD GIVEN NOTICE, IT WAS FOUND , AND ONE HAD NO T AND THEREFORE NO ONE WAS CAST WITH IMMUNITY. OUR AP PEAL WAS STRICTLY T O THE EFFE CT AND NOT TO THE JURISDICTIONAL NOTICE OF NOTICE. SUA SP ONTE , THE A EAL COURT .
BOTH THE HOSP ITAL AND DOCTOR HAD TO GIVE NOTICE AND NOT THAT IT COULDN'T HAVE BEEN DECIDED BY THEM , THAT IS YOUR ISSU E?
NO. OUR ISS UE WAS THA T WE HAD A CASE WHERE THE HOSPITAL DID NOT GIVE NOTICE , AND THE DOCTOR D .
OK AY .
THE A LJ COMMENTED ON THE EFFECT OF THAT FIND ING AND THAT IS WHAT WE AE ALED , BECAUSE OUR POSITION HAS BEEN , AND IT HAS BEEN UPHELD IN OTHER DISTRICT COURTS , THAT THE HOSP ITAL HAS T O GIVE THE NOTICE , THE D OCTOR HAS TO GIVE THE NOTICE . AND THE ONE THAT DOES N'T , DOESN'T GET THE IMMUNITY IN A COMPENSABLE CASE .
WHAT I S YOUR STAT UTORY BASIS FOR THE ALJ HA VING AUTHORITY TO MAKE A DEC ISION TOO NOTICE?
WELL , I THINK THE STATUTEIS CLEAR , BE CAUSE IT SAYS THAT THE ALJ HAS JURISDICTION OVER 766.301 TO 766.316 , TO MAKE ALL DETERMINATIONS AND 766. 316 IS ONLY THE NOT ICE PROVISION. AND IF THAT DIDN'T GIVE HIM JURISDICTION, YOU KNOW, T HEN I DON'T KNOW WHAT DOES, BUT IN ADDITION TO THAT , IN 20 03 , THIS STATUTE WAS AMENDED , IN ORDER TO ADDRESS A N OTHER ISSUE OF BIFURCATION OF AWARDS, AND THE LEGISLATURE SPECIFICALLY SAID THAT THE ALJ, IN 2 003 , COULD BIFURCATE THE ISSUE OF NOTICE AND SPECIFICALLY REFERRED TO 766.316, AND COMPENS ABILITY, SO THAT WE DIDN'T GO THR OUGH A LOT OF STEPS YOU DIDN'T NEED TO , TOGET THERE.
CHIEF JUSTICE: SO ARE W E IN A SITUATION WH ERE THIS DECISION, ASSU MING W E UPHELD THE SE COND DISTRICT'S DECISION, WOULD HAVE BEEN OF LIMITED ALICABILITY?
NO. WE WOULD HAVE REAL M ESS.
CHIEF JUSTICE: BUT YOU JUST SAID IN 20 03, THEY AMENDED TO MAKE CLEAR THAT NOTICE WOULD BE, WAS PART OF THE DETERM INATION .
YES. IF YOU , I F YOU HELD THE ALJ HAS THE AUTHORITY TO DETERMINE FACT UALLY WHETHER NOTICE WAS OR WAS NOT GIVEN , THEN THE ONLY THIN G YOU HAVE DONE IS MOS T OF THE CASES , ALL OF THE CASES ARE I N THE SECOND DISTRICT , BUT I THINK WE CLEAR UP A LOT OF BACKLOG THAT IS SETT ING IN THE CIRCUIT COURT RIGHT NOW, DOWN IN THE SECOND DISTR ICT, THE AREA WHERE
CHIEF JUSTICE: I DON'T KNOW AB OUT BA CKLOG OR WHATEVER. I AM TALKING ABOUT LEGALLY. I WA NT TO UND ERSTAND .
LEGALLY THERE ARE ABOUT FIVE CASES INVOLVED.
CHIEF JUSTICE: BUT IN 2003, IF WE DECIDE THE 2003 AMENDMENT CLEARLY GAVE THEM JURISDICTION, SO THIS CASE WOULD HAVE, THIS SECOND DISTRICT CASE WOULD HAVE LIMITED ALICABILITY.
I AM SO RRY AND I MISUNDERSTOOD YOUR QUESTION. YES.
THEN WHAT DO YOU DO WITH 766.304 THAT SAYS THE FINDINGS OF FA CTS AND CONCLUSIONS OF LAW OF THE ADMINISTRATIVE LAW J UDGESHALL NOT BE ADMISSIBLE I N ANY SUBSEQUENT PROCEEDING. HOW WOULD THAT AFFECT THE CIRCUIT COURT PROCEEDI NGS ON THE IMMUNITY QUESTION?
WELL , THE , ON THE NOTICE ISSUE?
YES. IF THE ALJ SAYS THAT NOTICE WAS ADEQUATE AND THERE IS A CIVIL PROCEEDING.
THEN IF THEY FIND THAT NOTICE WAS ADEQ UATE , THEN IT CAN BE RAIS ED IN THE CIRCUITCOURT AND HAS BEEN , AS TO IMMUNITY. THAT WAS WHAT HA ENED I N THE GOOGLEMAN CASE DECIDED IN THE FO URTH DISTRI CT. THE ELECTION OF REMEDIES IS REQUIRED BY THE CI RCUIT COURT, AND THE CIRCUIT COURT REQUIRES THE ELECTION OF REMEDIES, WHEN IMMU NITY IS ASSERTED DOWN BE LOW. NOW , WHAT YOU ARE NOT DOING IS, YOU ARE NOT INTRODUCING THE FINDINGS OF FACT FOR EVIDENCE AND OTHER PUR POSES LIKE THAT, BUT THAT SOM EHOWYOU ARE GET TING YOUR IMMUNITY. IT IS WOR KING Q UITE WE LL.
SO AS A PR ACTICAL MA TTER , IF ONE CLAI MS IMMUNITY , THEN DO YOU HAVE TO START OUT BY FILING AN ACTION IN CIRCUIT COURT ?
YOU ARE NOT SU OSED T O . BUT THE STATUTE SAY S
IF WE SAY THAT IT IS A CONDITION PREC EDENT AS WAS SAID IN THE BRANDIFF CASE , THEN DO YOU HAVE TO START YOUR PROCEEDING BY FI LING A COMPLAINT IN CIRCUIT COURT , TO HAVE A DETERMINATION MADE ON THAT NOTICE ISSUE?
NO , YOUR HO NOR. THE CIRCUIT COURT, OUR OPINION IS THE CIRCUIT COURT IS NOT THE PLAC E FOR THE NOTICE ISSUE , WHEN T HESECASES ARE FILED , THE GENE RAL PRACTICE RIGHT NOW IS THERE IS A MOTION TO ABATE FILED. THE CIRCUIT COURT AL MOST INVARIABLY ZP DZ A CASE BACK TO THE D I VISION OF ADMINISTRATIVE HEARINGS. THE DIVISION OF ADMINISTRATIVE HEARINGS MAKES A DETERMINATION OF NOTICE AND COMPENSABILITY, AND ONCE THAT IS DONE , IF A CIVIL ACTION ST ILL LIES , IT WILL CONTINUE IN THE CIRCUIT COURT. OTHERWISE IT WILL GETDISMISSED.
BUT IT IS YOUR POSITIO N THAT THAT CONCLUSION OF LAW BY THE ALJ , LET'S SAY THE ISSUE OF NOTICE GO ES TO THE ALJ. IT IS ABATED IN THE CIRCUITCOURT , AND THE ALJ SAYS NOTICE WAS ADEQUATE.
WELL, NO , WHAT HE IS SAYING IS NOTICE WAS GIVEN. THE ISSUE O F ADEQUA CY IS NOT WHAT WE ARE HERE ON TO DAY. ADEQUACY IS WHETHER OR NOT HE GAVE IT TO THEM AND SO FORTH. THE SUFFICIENCY OF THE NOTICE. WHAT THE ISSUE IS FACT UALLY , DID WE GIVE THE EXPECTANT MOTHER , THE OBSTETRIC PATIENT, NOTICE , NOT, DID WE , DID THE DOCTOR OR THE HOSPITAL GIVE NOTICE. IF IT IS FOUND THAT THEY DID THAT, IS AS FAR AS THE ALJ CAN GO IS TO MAKE THAT FINDING .
BUT WHAT CONCERNS ME IS THAT HE RE YOU ARE T ELLING US THAT THE AM ENDMENT IN 2003 MADE IT CLEAR THAT NOTICE WAS TO BE DETERMINED BY THE ALJ. THE CASE HAS AARENTLY MOOT, IN REGARD TO THE FACT THAT THERE HAS BEEN AN ACCEPTANCE OF NICA BENEFITS , AND SO IF WE COM E OUT WITH AN OPINION , WE HAVE GOT TO COME OUT WITH AN OP INION THAT WOULD MAKE SOME SE NSE GENERALLY , AS TO NOTICE . AND SO THE ADEQ UACY OF NOTICE IS P ART OF THAT OVERALL NOTICE O F THE CASE , ISN'T IT ?
WELL, THE NOTICE IS A BROCHURE THAT IS GIVEN TO THE EXPECT ANT MOT HER.
BUT YOU HAVE GOT ANOTHER ISSUE UN DER 3 16 , AND THAT I S YOU HAVE GOT AN ISSUE O F WHETHER IT WAS , I MEAN , POTENTIALLY WHETHER IT WAS PRACTICAL TO GIVE NOTICE .
THAT
THAT IS NOT IN THIS CASE. I UNDERSTAND.
NO. IT IS NOT IN THIS CASE, AND THE ALJ RULES ON WHE THER OR NOT THERE IS A EMER GENCY SITUATION AND WHETHER IT WAS PRACABLE.
BUT IT DOES HAVE TO DO WITH WH O IS GO ING TO MAKE THE CALL, WHETHER IT IS THE CIRCUIT COURT OR THE ALJ!
WELL , LET ME SAY THIS. I AM RUN NING INTO M R .LUENTER'S TIME - - MR . HUNTER'S T IME AND I WILL BE HAY T O ANSWER THAT VER Y QUICKLY. THE PROBLEM IS THIS IS A STREAMLINED ADMINISTRATIVE AROACH TO THINGS AND O URAROACH IS IDENTICAL TO THE TAB DECISIO N. THEY HI T IT RIGHT ON THE HEAD. IT IS DESIGNED SO THAT YOU SATISFY THIS QUICKLY AND YOUHAVE GOT JUDICIAL REVI EW , AND ANY ISSUE RELATING TOWHAT YOU DO WITH THE FINDINGS OF THE ALJ IS UP INTO THE CIRCUIT COURT U NDERTHE GOOGLEMAN CASE, SO REALISTICALLY THOSE ISSUES HAVE NOT CLOUDED ANY PROCEEDING. I HAVE BEEN GENERAL COU NSEL ORIGINALLY SINCE 19 89 A NDTHEN BACK A GAIN SI NCE, F ORTHE LAST , SINCE 2000, A NDTHESE ISSUES OF NOTICE ARE JUST NOT ISSUES THAT ARE HEAVY WITH THE BAR. EVERYBODY BELIEVES THAT THE ALJ SHOULD DO THE NOTICE ISSUE , AND WE THINK IT IS THE ONLY WAY TO DO IT , TO BE STREAMLINED.I WILL BE HAY TO ANSWER ANY FURTHER QUES TIONS.
CHIEF JUSTICE: THANK YOU.
IF IT PLEA SE THE COURT MY NAME IS HO WARD HUNT ER. I REPRESENT ALL CHILDREN'S HOSPITAL. I HAVE THE PRIVIL EGE OF REPRESENTING THAT INSTITUTION.I WOULD LIKE TO PICK UP WHERE LE ARNED COUNSEL LE FT OFF, IF I COULD , JUSTICEWELLS.IT SEEMS TO ME THAT, WHEN THIS COURT DECIDED THE G A EVENT LIN OF FLORIDA VERSUS BRANIFF DECISION, IT ROLLE D THE ISSUE OF NOTICE INTO THE ISSUE OF COMPENS AB ILITY. IT RO LLED THAT NOTICE FORWARD AND THERE HAS NEVER BEEN A DISPUTE ABOUT. THAT WHEN THE LEGISLATURE ACTED IN 2003 , TO ADDRESS THE ISSUE OF BIFURC ATING NICA PROCEEDINGS TO ADDR ESS NOTICE AND COMPENS AB ILITY SEPARATELY, IT DIDN'T MAKE AN EXPRESS DECLARATION THAT NOW IT HAS GOT THE JURISDI CTION.IT THOUGHT IT WAS ALREA DY HAD THERE. SO
HOW DO YOU , I AM HAVING A HARD TIME FOLL OWING YOUR ARGUMENT THAT THE BRANIFF CASE ROLLED COMPENSABILITY AND NOTICE INTO ONE ISSUE, WHEN THE BR ANIFF CASE SAYS SPECIFICALLY, THAT NOTICE I S A FACTUAL MA TTER THAT , E VEN SAYS IT SHOULD BE DETERMINED BY A JU RY , AND THE STATUTE ITSELF, SAYS COMPENS ABILITY IS TO BE DETERMINED BY THE ADMINISTRATIVE LAW JUD GE, SO HOW DO YOU GET TO THESE TWO ARE ROLLED INTO ONE?
WELL , I THINK THE BE HAND SDANTION PROGENY THAT HAVE COME THE BE HAND DECISION AND THE PROG ENY THAT HAVE COME AFTER THAT DECISION ARE EXPLICITLY OPERATING , WITH NOTICE OF COMPENSA BILITY AND SOMETHING THAT THE ALJ HA S TO DETERMINE, IN ORDER TO DETERMINE WHETHER HE HAS JURISDICTION OR HAS ANY BUSINESS, IF YOU WILL, DECIDING THE NOTICE ISSUE. IT IS
BUT WHAT DOES HE DECIDE ON THE NOTICE ISSUE , IF IT IS NOT EXCL USIVE IVITY .
I THINK I WOULD LIKE T O DEPART FROM WHAT MR . BR OUNT WAS SAYING A MOMENT AG - - MR . BRUTON WAS SAYI NG A MOMENT AGO.I THINK WHAT IT WAS SAYING IN 304 , W HERE HE HAS GOT THE POWER TO ENFO RCE THE ISS UES AND THE FI ENDINGS HE MAKES REGARDING COMPENSABILITY , H E HAS GOT THE PER TINENT AUTHORITY TO DETERMINE WAS THIS NOTICE ADEQU ATE? WAS THIS THE STATUT ORY NOTICE THAT WAS AROPRIATE? WAS IT P R ACTICAL T O GIVE NOTICE, AND ONCE HE M AKES THOSE FINDINGS OF FACT AND CONCLUSIONS OF LAW, THEN HE CAN PROCEED TO SAY, THEN , IT IS COMPENSABLE ON A MED ICALBAS IS. IS THIS A NICA BA BY. WAS THIS A PARTICIPATING PHYSICIAN, ET C ETERA , SO THAT HE CAN DECIDE THIS ENTIRE CONTINUUM OF FACTUAL ISSUES, J UST LIKE THE DISTRICT COURTS HAVE HE LD IN THE FIRST , FI FTH , FOURTH CIRCUITS.
SO YOU AGREE WI TH THE OTHER DISTRICT COURTS THAT THAT IS REALL Y IN ESSENCE A DETERMINATION OF THE IMMUNITY ISSUE , BECA USE ONCE THE ALJ MAKE S THE DETERMINATION THAT THE NOTICE WAS ADEQUATE , DOESN'T THAT RESO LVE THE CONNECTION PRECEDENT?
IT MAY , YOUR HONOR , UNDER THE SENSE THAT UNDER T HEDISTRICT COURT'S DECISION ATTHIS PO INT , IF FOR EXAM PLE THE HEARING OFFICER M AKESTHE DECISION THAT THE OBSTETRICIAN GAVE NOTICE A NDTHE HOSPITAL DID NOT, HE , THEN, PROCEE DS TO FIND THAT THE CASE IS COMPENSABLE WITH RESPECT TO THE OBSTETRI CIAN. NOW
SO YOU REALLY ARE S AYING THAT NOTICE IS A COMP ONENT OF COMPENSABILITY NOT JUST
EXACTLY. PRECISELY.THAT IS PREC ISELY WHAT I THINK THE DISTRICT COURTS HAVE SA ID. NOW, IN TERMS OF THE IMMUNITY ALICATION, YOUR HONOR, THAT IS A DEC ISION FOR THE TRIAL COURT TO MAKE. ONCE THE ALJ DETERMINES T HAT THERE IS COMPENS ABILI TY AS TO ONE PARTY O R ANOTHER , THEN THE CIRCUIT COURT DECIDES WHETHER OR NOT THEALLEGATION INS THE COMPLA INT, FOR EXAMPLE , RE LATE ALLEGATIONS IN THE COMPLAINT , FOR FOR EXAMPLE , RELATE TO BIRTH
CHIEF JUSTICE: LET'S JUST GO BACK , BECAUSE FIRST OF ALL, THIS IS SOM ETHING THAT , FOR ME, FROM MY POINT OF VIEW, KNOWING THAT NICA WAS AN ATTE MPT TO STREAM LINE THE PROCESS , IT DOES A EAR THAT THE WAY THE SEC OND DISTRICT WOULD HAVE IT WOULD MAKE IT GO, BE LIKE A , I G UESS WHETHER IT IS A PING-PONG BALL AS JUDGE CANDY SAID , BUT JUDGE KEN NEDY S AID BURKES NOTICE IS ALSO PRECEDENT TO IMMU NITY. IN OTHER WORDS, IF YOU DON 'TGIVE THE NOTICE , T HEN Y OUARE NOT IMMUNE. SO IT IS, REALLY , GOES TO TWO ISSUES, DOESN'T IT?
IT, DOES AND I THI NK
CHIEF JUSTICE: THAT IS WHERE, REALLY, WE
I THINK THE TRICK FOR THE COURT HERE, IS TO DETERMINE WHERE DOES THE ALJ'S FINDING LEAVE OFF AND WHERE DOES THE CIRCUIT COURT BE GIN, AND TO ME IT SEEM S THAT IT IS A MATTER OF, THAT WHEN YOU START TALKING ABOUT DETERMINING THE IM PACT OF THE ALJ'S RUL ING, N O W YOU ARE BACK IN THE CIRCUIT COURT.
CHIEF JUSTICE: IS THE CIRCUIT COURT, IF THE ISSUE IS IMMUNITY , FR EE TO RE VISIT THE NOTICE ISSUE?
I DON'T BELI EVE SO , YOUR HONOR.
CHIEF JUSTICE: AG AIN, THAT IS , BELIEVE SO BECA USE IS IT A COLLATERAL ESTO EL ISSUE, OR IS IT SOMETHING, ARE WE DEALING WITH LEGISLATIVE INTENT HERE?
I THINK YOU ARE DEA LING WITH BOTH. OKAY, NUMBER ONE , I BELIEVE IT IS 304 THAT SAYS THAT COLLATERAL ESTO EL AND JUDICIAL ESTOEL DO NOT ALY, WITH REFERENCE TO ALJ FINDINGS, IF COMPENSABILITY IS NOT FOUND F THEY ARE FOUND, I WOULD SUBMI T TO T HECOURT AT LE AST BY INFERENCE IF NOT EXP RESSLY, THEY DO ALY, AND THE ALJ'S RULING WOULD STAND AND COLLATERALLY ESTOP THE CIRCUIT COURT FROM MAKING CONTRA RY FINDINGS WITH RESPECT TO NOTICE AND COMPENSABILITY.
WELL , AS TO THE WH OL E ISSUE OF WHAT IS TO BE DECIDED BY THE COURT A NDWHAT IS TO BE DECIDED BY THE ALJ , I WOULD AS SUME THAT YOUR ARGUMENT IS BASED UPON THE PROVISION IN THE STATUTE THAT CAME IN IN 199 8, WH ICH SAYS THAT THE ISSUE OF WHETHER SUCH CLAIMS ARE COVERED BY THIS ACT MUST BE DETERMINED EXCLUSIVELY IN A N ADMINISTRATIVE PROCEEDING.
PRIOR TO THAT IT WAS HELD BY THIS COURT THAT THERE WAS CONCURRENT JURISDICTION.
RIGH T.
AS OOSED TO EXCL USIVE JURISDICTION, AND IT IS MY CONCLUSION AND BELIEF THAT THE '98 AM ENDMENT SI MPLY CLARIFIED LEGISLATIVEINTENT. IN MY PARTICULAR CASE, MY CLIENT WAS NOT SU ED. MY CASE WAS NOT FIL ED, U N TIL AFTER THE '98 AMENDMENT TO OK EFFECT, SO MY CASE , AS FAR AS I AM CON CERNED , I S CLEARLY COVERED BY THE '98 AMENDMENTS. THERE IS NO QU ESTION THAT I T DOES EXACTLY AS YOUR HONOR HAS SUGGESTED, THAT THAT MAKES IT CLEAR THAT THERE IS EXCLUSIVE JURISDICTION TO DETERMINE THESE ISSUES, AT LEAST WITH RESP ECT TO POST '98 FILINGS IN THE AL , ON THE PART OF THE ALJ.
DO YOU AG REE OR DISA GREE THAT, IN 309 WHAT IT SAYS THE ADMINISTRATIVE LAW J UDGESHALL MAKE FINDIN GS OF, DOES NOT INCLUDE THE ISSUE OF NOTE IS?
I AGREE WHOLEHEARTEDLY , JUDGE, BUT
SO THAT WOULD BE AN OVERLAY IMP OSED O N THIS COURT IN BR ANIFF.
I DON'T THINK SO, JUDGE, BECAUSE YOU WOULD HAVE TO READ THE ENTIRE STATUTE IN PARI MA TERIA , AND WHEN YOU HARKEN BACK TO SECTION 302 , 3 ON 3 AND 3 ON -30 3 AND 3 303 AND 304 , YOU HAVE THE TOOLS TO MAKE THOSE DETERMINATION ANSWER ANY COURT HAS GOT THE PREROGATIVE TO DETERMINE ITS OWN JURI SDICTION, IN ADDITION TO WHICH THE LEGISLATURE FROM THE OUT SET,FROM THE TIME IT PA SSED THE STATUTE FORWARD, HAS SAID AS A PO LICY MATTER , THAT IT IS ATTEMPTING TO HANDLE THESE VERY EXPENSIVE , VERY HI GH PROFILE CLAIMS, IN A MANNER THAT IS JUDICIALLY AND ECONOMICALLY EFFICIENT, SO I THINK YOU HAVE TO OVERLAY THE PUR POSE O F THE STATUTEAS WELL AS THE OTHER STATUTORY PROVISIONS WITH THE PROVIS IONS O F SECTION 319 THAT YOU HAVE - -
CHIEF JUSTICE: I WANT TO REMIND YOU YOU ARE IN YOUR COLLECTIVE REBUTTAL.
I APOLOGIZE , YOUR HONOR. THANK YOU VERY MU CH.
CHIEF JUSTICE: MR . MARSHAL , BECAUSE BOTH PARTIES WENT OVER JUST A FEW , CHANGE REBUTTAL TIME TO SIX MINUTES. ADJUST IT. OKAY. YOU HAVE TEN MINUTE S FOR EACH OF YOU.
MAY IT PLEASE THE COURT. I AM HIM RO BERT BIA SOTTI,AND I REPRE SENT MA RIA FERGUSON. WE ARE OUT OF OR DER. I DISAGREE WITH MR . BR UTON. IT DOES N'T SAY ANY WHERE IN THE STATUTE THAT THE ALJ DECIDES NOTICE. LET ME GIVE YOU THE TIMING OF THE FER GUSON CASE. THE FERGUSON S SUE D THE HOSPITAL, AND MID WIFE , IN CIRCUIT COURT. AND ASSERTED THEY NEVER GOT NOTICE AND ASSE RTED THEY WERE ENTI TLED TO A JURY TRIAL ON THE ISSUE OF NOTICE , PURSUANT TO THE BRA NIFF C ASE OF THIS COURT .
IS THE FERG USON CASE N OWOVER ?
NO. IT ISN'T OVER. IT IS , LET ME AN SWER IT THIS WAY. ALL OF THE ISSUES THAT NICA RAISES AGAINST FERGUSON AT THIS POINT ARE MOOT . THE SOLE REMA INING ISSUE I S WHETHER MRS. FERGUSON IS GOING TO COLLECT BENEFI TS FROM NICA, WHICH ARE ESSENTIALLY WRONGFUL-DEATH BENEFITS AND ATTORNEYS FEES , BASED ON
THERE ISN'T ANY NOTICE ISSUE IN THIS CASE ANY LONGER.
MRS. FERGUSON ABANDONED THE ISSUE OF NOTICE , P RIORTO THE SECOND DISTRICT ORAL ARGUMENT. AND I SAID THAT AS MU CH AT THAT ORAL ARGUMENT .
THAT , REALLY, MAKES THIS CASE HA RD TO B E ANYTHING EXCEPT SOME K IND OF LAW REVIEW ARTICLE.
JUSTICE WELLS , I CAN'T DISAGREE WITH YOU AND FRANKLY THAT WAS THE SITUATION AT THE SECOND DISTRICT AS WELL, BECAUS E IN OUR CASE , IN THE FERGUSON CASE, THE ALJ SAID THAT, IF THE HOSP ITAL DOESN'T PROVIDE NOTICE, YOU CAN SUE THE DOCTOR. WE NEVER SUE D THE DO CTOR. THE DOCTOR WAS NOT A PARTY. THE DOCTOR NEVER INTERVENED . IT WAS NEVER AT ISSUE IN T HECASE, AND THE ALJ FR ANKLY , IT WAS ALL DICT A. AND NICA HAS AEALED THAT. THAT IS DICTA. THAT IS NOT AN ISSUE IN THE CASE.
CHIEF JUSTICE: IT IS A LOT OF DICTA. IF IT IS DICTA , I T IS PR ETTY POWERFUL DICTA.
THERE IS NO QUESTION THAT IT IS PROBLE MATIC . THE QUESTION HERE IS , AND WE RAISED THE ISSUE AS TO WHETHER THERE IS EVEN JURISDICTION, BECAUSE THERE REALLY ISN'T A CASE OR CONTROVERSY .
BUT WHAT THAT ALL ME AN S TO ME , IS THAT HERE WE HAVE GOT THIS CASE THAT IS SITTING OUT THERE IN THE SECOND DISTRICT , THAT THE ISSUE, REALLY , ACCORDING T O EVERYBODY, WASN'T THE ISSUE THAT WAS AE ALED TO THE SECOND DISTRICT O R WASN'T REALLY ARGUED THE WAY THATIT CAME DOWN.WE HAVE GOT A DECISION O UTOF THE SECOND DISTRICT , SETTING OUT THERE , AND WE ARE CALLED UPON TO MAKE A DECISION AS TO NOTICE ABOUTA CASE THAT , REALLY , IS MOOT , AND IF WE MAK E A DECISION AS TO NOTICE , WE ARE GOING TO FURTHER COMPLICATE THIN GS, IF WE DON'T MAKE IT ON THE BASIS OF WHAT THE CURRENTSTATE OF THE LAW IS. AND SO THAT PRE SENTS US A DILEMMA, AND THE CURRENTSTATE OF THE LAW HA S GOT TO TAKE INTO CONSIDERATION THE 1998 AME NDMENT TO T HESTATUTE.
I WOULD SUGGEST TO YOUR HONOR, JUSTICE WELLS, THAT THE 1998 VERSION OF THE STATUTE DOES NOT S AYANYWHERE, THAT THE ISSUE OF NOTICE IS RESOL VED BY THE ADMINISTRATIVE
NO, BUT IT DOES SAY THAT THE ISSUE OF WHETHER S UCH CLAIMS ARE COVERED BY THIS ACT , MUST BE DETERMINED EXCLUSIVELY IN ADMINISTRATIVE PROCEE DING , IN 768.301-D.
THE QUESTION BEC OMES , WHEN A PLAINT IFF S UES SOMEONE IN CIRCUIT COURT AND A DOCTOR OR A HOSPITAL ASSERTS, AS AN AFFIRMATIVEDEFENSE, THE ISSUE OF NOTICE , WHO RESOLVES THAT? AND THAT STATUTE , WE WOULD RESPECTFULLY SUGGEST, D OES NOT SAY THAT THE ALJ DOES THAT. I WILL SAY TO THE COURT THAT THAT WAS OUR ARGUMENT BELOW. THAT WAS MRS. FERGUSON 'S ARGUMENT FROM DAY ONE. THIS STREAMLINED SYSTEM , JUST SO WE CAN PUT IT IN PERSPECTIVE, CASEY FERGUSON , WERE SHE STILL ALIVE , WOULD BENIGN Y EARS O LD THIS MONTH THIS. CASE WENT ON FOR MA NY, M ANY YEARS , AND FINALLY WAS SETTLED. FOR EXACTLY THIS REA SON. THIS IS NOT A STREAMLINED SYSTEM, AND I RESPECTF ULLY WOULD ASK THE COURT - -
WOULDN'T YOU AGREE THAT , IF THE ALJ HAS THE AUTHORITY TO DETERMINE ALL OF THESEISSUES THAT WE ARE TAL KING ABOUT , INSTE AD OF HAVING TO GO BACK AND FO RTH FROM AN ALJ PROCEEDING TO CIRCUIT COURT , THAT WE MAY HAVE, I N FACT, A STREAMLINED PROCEEDING HERE?
IF A PLAINTIFF WHO SH OU LDBE THE MA STER O F T HEIRCOMPLAINT IN A STATUTE THAT IS SUOSED TO BE STR ICTLY CONSTRUED , SUES IN CIRCUIT COURT, I DON'T THINK IT IS THAT BIG AFTER PROB LEM TO RESOLVE THE ISSUE OF NOTICE IN CIRCUIT COURT.
IN CIRCUIT COURT.
AND BE ENTITLE O DD T O A JURY TRIA L ON IT, IF THAT IS WHAT THE LAW IS , AND THAT IS WHAT THIS COURT SAID IT WAS. WHETHER IT IS UNDER THE '98 STATUTE OR THE '97 STATUTE.
SO BE FORE ANY PROCEEDING UNDER 7 66 , YOU WOULD, AND IF THERE IS A QUESTION OF NOTICE
IF THERE IS A QU ESTION OF NOTICE.
YOU WOULD HAVE TO GO TO CIRCUIT COURT.
THAT IS WHAT WE WOULD SUGGEST.
CAN YOU ADDRESS THEEFFECT OF THE AMENDMENTS TO SECTION 309.4 AND WHETHERTHEY ALY TO YOU ?
THE. 304 AND 309 IN '912348.
309 PAREN 4 WHERE IT SAYS IF IT IS IN THE INTE REST OF JUDICIAL ECONOMY OR RE QUEST OF THE LAW JUDGE TO BIFURCATE THE PROCEEDING ADDRESS COMPENSABILITY AND NOTICE, PURSU ANT TO 3 16 FIRST AND ADDRESSI NG AN AWARD PURS UANT TO 31, IF ANY, IN A SEPARATE PROCEEDING. THAT SEEM S TO ME CLEAR LEGISLATIVE INTENT THAT THE ALJ DETERMINED NOTICE.
THAT IS THE '98 VERSION OF THE STATUTE, WHIC H WE SUGGEST IT DOESN'T ALY , AND IN FACT , JUDGE D A VIS IN THE OPINION IN OUR CASE, REFERENCES THE '97 VERSIONOF THE STATUTE, SO THAT IS NOT EVEN IN THE '97 STATUTE , BUT RESPECTFULLY , THIS WHOLE SECTION HAS TO DO WITH CLAIMS, AND IN AT LE AST MRS. FERGUSON 'S CASE , SHE DIDN'T FI LE A CL AIM. SHE FILED A LAWSUIT AND WAS FORCED TO FILE A CLAIM , BUT BECAUSE UNDER THE O'LE ARY CASE SHE WAS FORCED TO ABANDON HER D E MAND FOR A JURY TRIAL ON THE ISSUE O F NOTICE AND TO GO FORWAR D TO THE ALJ, TO ARGUE NOTICE. DID THAT. PREVAILED AND NICA ST ILL AEALED AND PREVA ILED IN THE SECOND DISTRICT, AND I T IS BEING AEALED AG AIN. SO
I AM NOT SURE THAT, EVEN IF YOUR CLAIM WAS FILED BY , IN '97, YOU SA ID , IS THIS SOME KIND OF CHANGE T HAT CAN'T BE RETROACT IVELY ALIED?
THAT IS WHAT WE SUGGESTEDBELOW, ALTHOU GH AGAIN WE ABANDONED IT, BUT WE ARGUED THAT IT CA NNOT BE RETROACTIVELY ALIED , BECAUSE MRS. FERGUSON HAD A SUBSTANTIVE RIGHT TO NOTICE , GOT THE NOTICE I N '97 , AND YOU CAN'T, THEN, CH ANGE HER RIGHTS RETROACTIVELY A NDTAKE AWAY HER RIGHT TO A JURY TRI AL.
BU T THE QUESTI ON OF WHETHER SHE IS E NTITLED TO NOTICE, CERTAINLY IS A SUBSTANTIVE QUESTION. THE QUESTION OF WHO DETERMINES THAT, MAY NOT BE SO SUBSTANTIVE. IT MAY BE MORE PAR OLE , AND THAT IS WHAT I AM GETTING AT.
I GUESS THE POINT IS THATTHE NOTICE SHE IS SUP POSED TO RECEIVE IS TO GIVE HER A CLEAR AND CONCISE STATEM ENT OF HER RIGHTS, AND YOU CAN'T GIVE HER A CLEAR AND CONC ISE STATEMENT OF HER RIGHTS I N 1996, CHANGE THOSE RIGHTS IN 1998 AND SAY THAT RETROACTIVELY SHE GOT ADEQUATE NOTICE.
WE ARE NOT TALKING ABOUT WHETHER SHE GOT CLEAR AND CONCISE NOTICE. WE ARE TALKING ABOU T WHO DETERMINES WHETHER SHE GOT CLEAR AND CONCISE NOTICE, THE ALJ OR CIRCUIT COURT, WHETHER BY JUDGE OR JURY , ITSEEMS TO ME THAT THE 1998 AMENDMENTS MADE IT PRE TTY CLEAR THAT IT IS THE ALJ THAT DETERMINES THAT. WHY CAN'T THAT BE RETROACTIVELY ALIED? WHY DOES THAT CHANGE SOMEBODY'S SUBSTANTIVERIGHT?
WELL , I HA TE TO ANSWER ITTHIS WAY , BUT IN FACT , WE ABANDONED OUR RIGHT TO. THAT WE THINK THAT THE R IGHTTO HAVE A JURY DETERMINE WHETHER YOU HAVE GOTTEN NOTICE IS SUBSTANTIVE . AND THAT IS WHAT WE ARGUED . UNFORTUNATELY WE AB ANDONED THAT ARGUMENT , BUT WE AR E HERE ARGUING THE CASE THAT WAS PRESENTED TO US .
CHIEF JUSTICE: BUT IT SEEMS TO ME, A GAIN , WHAT WE ARE REALLY TALKING ABOUT, FROM JUSTICE WELL S'S IN ITIAL QUESTION, IS WHETHER THE ALJ HAS JURISDICTION TO DETERMINE THAT, WHETHER THE LEGISLATURE INTENDED THAT TO BE PART AND PAR CEL . SO IN MATERIALS OF THE SUBSTANTIVE RIGHTS, I ME AN, IF YOU HAVE , YOU KNO W, YOU EITHER, IF ADE QUATE NOTICE IS GIVEN, THEN YOU ONLY HAVE ONE REMEDY , AND SO IT IS A QUESTION OF WHO THE FACT FINDER SHOULD BE. I MEAN, IF THE WHOLE STATUTE IS CONSTITUTION AL, WHI CH HAS BEEN DETERMINED TO BE , IT WOULD BE PRETTY HA RD TO SAY THAT ONE PART THAT DEPR IVES YOU OF A JURY TRIAL ON ONE PARTICULAR ISSUE WOULD BE UNCONSTITUTIONAL AS TO THAT PARTICULAR PART.
IT CERTAINLY WOULD B E UNDER THE '97 VERSION OF T HESTATUTE, I THINK, BUT IT IS CERTAINLY AN OPEN QUESTION,WITH RESPECT TO THE '98 VERSION OF THE STATUTE AND THE 200 3. I WILL SAY THAT JUDGE DAVIS , WHEN WE HAD THIS VERY ARGUMENT IN F RONT OF THE SECOND DISTRICT, LOOKED AT M E AND SAID POINT TO ME THE PLACE IN THE STATUTE WHERE IT SAYS THE ALJ RESOL VES NOTICE, AND IT IS IN DIRECT AT BEST.IT TALKS ABOUT COMPENSABILITY AND THEN IN 309 IT IDENTI FIES THE FACTORS OF COMPEPSABILITY AS JUSTICE BELL POINTED OUT AND NOTICE IS NOT ONE OF THOSE FACTORS, SO THIS IS A VERY HI IN DI RECT WAY TO TAKE AWAY
EXPL AIN TO ME , THEN , HOW AN ALJ IS GO ING TO MAKE, HE MAKES A DETERMINATION O F WHETHER OR NOT THERE WAS THE PROPER INJURY , WHETHER OR NOT THE P ERSON , THE DOCTOR OR HOSPITAL IS A PART OF THIS GROUP , AND HE MAKES A DETERMINATION OF THE AMOU NT. SO HOW DO YOU GET TO ALL OF THAT, IF IN FACT , THERE IS SOME NOTICE PROBLEM?
YOU DON' T GET , YOUR HO NOR , RESPECTFULLY YOU DON'T G ETTO IT, UNTI L YOU RESOLVE THE NOTICE PROBLEM.
SO , AGAIN , WHY SHOULDN'T THAT BE A PART OF THE WHOLE ISSUE OF WHETHER THIS INJURY IS COMPENSABLE UNDE R THE NICA?
I WOULD ANALOGIZE IT T O A WORKERS COMPOSITION , WHER E IF A PLAINTIFF ASSE RTS T HAT THEY ARE NOT BARRED BY WORKERS COMP, THAT W OULD GO TO TRIAL. THAT WOULD , IF THERE WERE FACT ISSU ES THAT HAD TO BE RESOLVED, IT WOULD BE RESOLVED IN A TRIAL, AND THEN IT WOULD GO, IF T HEY WERE RESOLVED AD VERSELY , I T IS THEN BARRED B Y WO RKERS COMPENSATION, BUT YOU ARE NOT DEPRIVED OF THAT TRIAL IN THE FI RST INSTAN CE ON THE FACTS.
SO YOU ST ILL GET INTO THE EIGHT YEARS IT TAKE S TO G O THROUGH THIS PROCEDURE.
JUSTICE QUINCE, IT HAS BEEN NINE YEARS NO W AND WE ARE NOT CLOSE. SO I DON'T KNOW HOW TO RESOLVE IT. THANK YOU .
CHIEF JUSTICE: MR . BIASOTTI?
WE DID IT BACKWARDS.
CHIEF JUSTICE: I AM SORRY. MR. RUT H.
MR . R UTH.I AM HERE ON BEHA LF OF MY MY CLIENT , COURT ANY LYNN G LENN MINOR. LET ME PICK U P ON JUSTICE CANTERO 'S COMMENT EARL IER, HIS QUESTION CONCERNING THE EFFECT OF THE ACTUAL 2003 AMENDMENT AND AS IT PERTAINS TO LANG UAGE , ALLOWING BIFURCATION OF NOTICE AND COMPENSABILITY AND WHETHER THAT WOULD BE HELPFUL IN RESOLVING THIS COURT'S DILEMMA . I THINK ESSENTIALLY , THAT CAN G O BACK AND BE USED AS AN INTERPRE TATION OF THE PRIOR STATUTE. THAT STATUTE IS INTERPRETING CASE LAW AND INTERPRE TING THE INTENT OF THAT STATUTE, THAT NOTICE IS AC TUALLY P ART OF THE JURISDICTION OF THE ALJ , PARTICULARLY AS IT RELATES TO THE FACT OF GIVING NOTICE , WHETHER IT WAS GIVEN , THE ADEQUA CY OF NOTICE, C ERTAIN EXCEPTIONS THAT DEAL WITH ME DICAL, EMERGENCY MEDICAL CONDITIONS OR WHETHER IT CAN BE G IVENAS SOON AS PRACTICA BLE . THESE ARE ALL ISSUES THAT ARE ACTUALLY , AS INDICATEDIN THE TAB DECISION , SORT OF PREAMBLE OR CONDITION PRECEDENT FOR THE ALJ TO MAKE HIS DECISION , WHETHER HE IS GOING DO INVOLVE AN ENTIRE EVIDENTIARY HE ARING AND GO THROUGH THE WHOLE PROCESS OF DETERMINING WHETHER THIS BA BY QUALIFIES UNDER THE NICA PLAN. THAT IS THE WHOLE JURISDICTION OF THE ALJ. WAS THE PLAN , IS THE BABY ENTITLED, THE PARENTS ENTITLED TO THE PLAN.
LET ME ASK YOU A QUESTION ON THAT. YOU AG REE THAT , O R DO YOU DISAGREE, IF NOTICE N EVER GETS RAISED AS ISSUE. YOU HAVE AN INJU RY. IT IS FILED WITH NICA. NOBODY EVER QUESTIONS NOTICE. THE ALJ WOULD GO AHE AD AND MAKE THE DETERMINATION S, WHETHER IT IS COMPENSABLE INJURY, PARTICIPATING PERSON AND COMPENSABILITY. CORRECT?
THAT IS CORRECT.
SO THE ONLY WAY THIS, REALLY, BEC OME AS ISSUE, I S IF A CI VIL ACT ION IS FILED , AND THE NOTICE ISSUE IS RAISED AS AN AFFIRMATIVE DEFENSE.
IT CAN BE RA ISED AS IT HAS IN BOTH THIS CASE A NDMANY OTHER CASES, I AM SURE , WHERE ONE OF THE PARTIES, A HOSPITAL, PARTICIPATING PHYSICIAN OR OTHER PER SON INVOLVED, INTERVENES INTO THE PROCEEDI NGS OF THE ADMINISTRATIVE LAW COURT PROCEEDINGS , AND IS ARGUING , ALSO, THE NOTICE PROVI SION , OR THE PARENTS A RESUGGESTING THAT THEY D ON'THAVE NOTICE.
WHY WOULD A PHYSICIAN OR A HOS PITAL INTERVENE AND TRY TO GET A CASE LIKE THIS REMOVED TO CIRCUIT COURT?
NOT INTERVENE TO GET REMOVED.THEY ACTUALLY INTERVENE AS THEY DID IN THIS CASE , ALL CHILDREN'S HOSPITAL, TO PARTICIPATE.
TO PARTICIPATE.
ON THAT ISSUE, ARGUING , OBVIOUSLY, NOTICE WAS GIVEN, AS OOSED TO PARE NTS SAYING NOTICE WAS NOT GIVEN. AT THE END OF THE D AY , ON THE ISSUE OF THOSE PRACTICALITIES OF NOTICE, IF THE ALJ JUST MAKES A FINDING THAT NOTICE WAS NOT GIVEN, UNDER THE PLAN , THE PARTICIPANTS CAN SAY , W ELL , WE HAVE DECIDE D WE DON'T CARE ABOUT THE NOTICE. IT WASN'T A BIG DE AL. WE ARE STILL GOING TO S TAY WITH THE PLAN. OR THEY CAN SAY, NO , THANK YOU VERY MUCH FOR THAT DECISION, FOR THE ALJ , NO NOTICE WAS EFFE CTIVE. WE ARE NOW GOING TO PURS UE, AND THE LANGUAGE OF THE STATUTE IS YOU CANNOT PU RSUE YOUR ACTION , UN TIL THE , UNLESS THE ALJ DETERMINES THAT THE PLAN IS NOT IN EFFECT, THEN THEY PURSUE IT, AND THEN THAT ISSUE OF THE EFFECT OF THE INADEQUACY OF NOTICE OR THE LACK OF GIVING NOTICE, IF T HAT IS GOING TO BE RAISED AT THAT TIME, I T CAN BE RAIS ED IN CIRCUIT COURT , AND AS A DEFENSE. THE ACTUAL FI NDINGS OF THE ALJ AS TO WHETHER NOTICE WAS GIVEN OR NOT GIVEN , I THINKTHEY WOULD BE BO UND AND THEY WOULD BE CONCLUSIVE ON THAT PROCEEDING. THE LE GAL EF FECT O F IMMUNITY FOR A TORT IN THAT ACTION
HOW DOES 304 ALY WHER E IT SAYS FINDINGS OF FACT AND CONCLUSIONS OF LAW SHALL NOT BE ADMISS IBLE IN ANY SUBSEQUENT PROCEEDING?
THAT, I THINK, HAS MORE TO DO WITH THE FACT S OF THE CASE, AS FAR AS THE INJURY , ITSELF. IF THERE IS GOING TO IT BE A FINDING ON COMPENSABILITY, THE , ALL THE ISSUES
WHY WOULDN'T THE ISSUE OF NOTICE, IF THE FINDING OF FACT IS RE LATED HO URX CAN W E BIFURCATE THE NOTICE OF FINDINGS OF HOW CAN WE BIFURCATE THE NOTICE OF FINDINGS OF FACT ON NOTICE AS REGA RDS TO THE FINDING S OF FACT ON INJURY?
AGAIN, IF THE PLAN IS NOT IN EFFECT AND THE ALJ MADE THAT DECISION THAT THERE IS NO EFFECTIVE PLAN , THEN THOSE FINDINGS , BEC AUSE T HEPLAN IS NOT GOING TO PUT INTO EFFECT , DON'T COU NT AT ALL, AND YOU CAN START A NDNEW IN CIRCUIT COURT. NOW, IF AND YOU START ANEW IN CIRCUIT COURT. YOU ASK THE QUESTION ABOUT NOTICE, DO YOU RE JECT THAT, TOO, AND YO U HAVE GOT TO REDO THE NOTICE ISSUE , I DON'T HAVE AN ANSWER ON THAT , WHEN YOU LOOK AT THE CONSTRUCTION OF LANGUAGE, AS IT SAYS FACTS AND CONCLUSIONS
IS THAT ONLY RELEVANT IF WE ARE IN THE ADMINISTRATIVE PROCEEDING, AS OP POSED TO, IF YOU HAVE THE RIGHT TO BRING A REGULAR LAWSU IT AS OOSED TO GOING IN AN ADMINISTRATIVE PROCEEDING,THAT NOTICE PROVISION, THEN, IS NO LONGER AL ICABLE .
WELL, IT SH OULDN'T BE . IT IS ONLY ALICABLE IN THE CONTEXT , IN CIRCUIT COURT , BECAUSE A PARTICIPANT IN THE PLAN FAILS TO GIVE NOTICE , THEN THEY ARE NOT EN TITLED TO THE IMMUNITY. SO NOTICE BY IMPLICATION WILL HAVE TO BE RAISED TO HAVE THAT DEFENSE RAISED. IF I ANSWERED THAT QUESTION , I APOLOGIZE ON THAT , BU T I WOULD URGE THAT THE COURT LOOK CAREFULLY AT THE TAB AND THE GOOGLEMAN DECISION T SENT RESTING THE LINE-UP OF CASES THAT DECISION. IT IS INTERESTING THE LINE-UP OF CASES THAT HAVE COME OUT AS AEAR S TO J UST DECISION OF AN ALJ TO DETERMINE PRACTICALITIES OF GIVING NOTICE, AS OOSED TO THE CONSEQUENCES OF L ACK OF NOTICE, THAT, REALLY , ONLY THE O' LEARY CASE OUT OF THE FIFTH DISTRICT COURT NOW , AND THE M IAMI CASE OUT O F THE THI RD, WH ICH RELIED ON A VERY, SEEMS TO B E I N DICATING THAT THE ALJ HAS JURISDICTION, BOTH AS TO NOTICE, PRACTICALITY , AS WELL AS LE GAL CONSEQUENCE. THE OTHER DISTRICT COURTS HAVE KIND OF BACKED O FF OF THAT, AT LE AST INTERPRE TED THEMSELVES A S SAYING IN THE GOOGLEMAN, MA CRY DECISION , AS WELL AS THE ALJ DOES NOT HAVE JURISDICTION TO DETERMINE THE LEGAL CONSEQUENCES OF FAILURE TO GIVE THE NOT ICE.
NOW, CAN YOU DISCUSS THAT , BECAUSE IT SEEMS TO ME IF THE ALJ HAS GOT JURI SDICTION , HE HAS GOT JURISDICTION , AND IT IS OVER BOT H THE FACTS AND LEGAL CONCLUSI ONS , AND IF WE ARE GETTING T O YOU CAN DETERMINE THE FACTS BUT NOT THE LEGAL CONCLU SIONS, THEN THE PING-PONG EFFECT BECOMES AARENT AGAIN, AND YOU L OSE ANY KIND OF EFFICIEN CIES IN HAVING THE ALJ DETERMINE NOTICE .
I WOULD AGREE WITH THAT , AND THE , IT I S INTERESTING THAT THE GOOGLEMAN DECISION DOES CITE SE CTION 120.687 , TALKING ABOUT THE AUTHORITY OF THE COURTS TO SET AS IDE OR MODI FY FINAL AG ENCY ACTIONS WHERE THE AGE NCY ERRONEOUSLY INTERPRETS T HEPLAN OR THE AGENCY EXERCISES DISCRETION SO AFTER THAT DECISION, IF H E DOES TAKE JURISDICTION TO DECIDE THE CONSEQUENCES, THAT OP INION IS AEAL ABLE TO THE DISTRICT COURT OF AEAL. AND IF THEY MISINTERPRET, I F THE ALJ MISINTERPRETED THE PLAN OR CON SDRUD IT INCORRECT OR CONSTRUED IT INCORRECTLY, AC CORDING T O LAW , THE COURT OF LAW CAN REVERSE OR REVI SE THAT ACCORDINGLY, TO MAKE SURE THAT THE DECISION COMP ORTS WITH THE AROPRIATE FLORIDA LAW, SO IF THE ALJ DOES HAVE JURISDICTION TO DECI DE THE CONSEQUENCES AND MAKES T HAT DECISION, IT SH OULD NOT, REALLY, THEN BE A JURISDICTIONAL ISSUE. IT SHOULD BE ALLOWED TO G O FORWARD, AND THE AE LLANT THE AELLATE COURT CAN REV IEW IT.
WOULD YOU, WHEN YOU ARE TALKING ABOUT THAT ISSUE AND HOPEFULLY ONE OR THE OTHE R OF YOU WILL HAVE TI ME ON REBUTTAL TO ADDR ESS IT , TOO , BECAUSE OF THE WAY THESE THINGS HAVE COME TOGE THER , AS FAR AS THE ALJ'S ORDINARY RESPONSIBILITIES OF DETERMINING COMPENSABILITY AND ALICAB ILITY OF THIS STATUTORY OR ADMINISTRATIVE SCHEME FOR COMPOSITION , SEPARATE FROM THE NOTICE ISSUE , WOULD YOU TELL US YOUR VIEW OF WHAT THE PURPOSE OF THE 20 03 AMENDMENT S WE RE. OKAY. THAT IS , H OW DID THEY COME ABOUT AND WHAT WAS THE INTENT OF THE LEGISLATURE IN MAKING THOSE 2 003 AMENDMENTS? I WOULD REALLY LI KE TO HAVE YOU ADDRESS THAT HEAD ON .
READING THE 2 003 AMENDMENT, IT T ENDS TO B RING TOGETHER THE TWO ISSUES OF NOTICE AND COMPENSABILITY . THAT IS , IS THE BABY QUALIFIED AS A NICA BABY. NOTICE, AND DOES THE PERSON QUALIFY, THE AROPRIATEWEIGHT, ET CETERA. THEN IT SAYS YOU CAN BUY FUR INDICATE THOSE TWO ISSUES AWAY FROM THE ISSUE OF V ALUE , AWARD , ARE THEY , WH AT WOULD BE THE AMOUNT OF M O NEY T HAPDTHAT WOULD BE AROPRIATE FOR THIS PARTIC ULAR - - T HAT WOULD BE AROPR IATE FOR THIS PARTICULAR CASE AND THEN ALLOWING THE AEAL TO TAKE PLACE, BETWEEN THE TWO BIFURCATED ISSUES.IT IS HA RD TO DETERMINE , LOOKING AT THAT STATUTE. I ASSUME THE ALJ COULD HAVE THE ULTI MATE DISCRETION SAYING I AM GOING TO BIFURCATE OR TRIFURCATE AND DO THE NOTICE ISSUE. IF THAT IS NOT A PROBLEM , THEN I WILL DO THE COMPENSABILITY ISSUE AND THEN FINALLY , I WILL DO THE VALUE ISSUE. I WOULD THINK THAT THE STREAMLINING EFFECT AND THE OVERALL PURPOSE IS, IF YOU TAKE EACH ISSUE BY ITSE LF , INSTEAD OF RESOLVING THEM ALL AND THEN COMING BACK AND SAYING THERE WAS NEVER NOTICE, SO ALL OF THAT TIME AND EFFORT S PENT ON COMPENSABILITY AND VALU E IS A WASTE OF TIM E AND TOOK FOREVER , MAYBE A N EXTRA AEAL AND MAYBE WE GO BACK TO CIRCUIT COURT AND START ALL OVER AGAIN F YOU HAND LE THE NOTICE ISSUE FIR ST AND ALLOW THAT TO BE DONE IN THE JURISDICTION O F THE ADMINISTRATIVE LAW JU DGE , THEN AEAL CAN BE TAKEN FROM THAT ISSUE AND THE EFFECT OF THAT AND THE FINDING OF THAT CAN BE DONE, AND THEN THE PARTIES CAN COME BACK AND E ITHER RESOLVE THEIR ISSUE AT THE ALJ HEARING OR IMMEDIATELY GO TO CIRCUIT COURT, DEPENDINGUPON THAT RULING. THAT WOULD BE MY INTERPRETATION. IF YOU HAVE NOTHING FU RTHER .
CHIEF JUSTICE: THANK YOU VERY MUCH. REBUTTAL.
YOUR HON ORS IN AN SWER ING JUDGE ANSTEAD'S QUESTION , THE PURP OSE OF THE 2003 AMENDMENTS WAS IN RES PONSE TO THE CASE OUT OF FIRST DISTRICT COURT OF AEAL , WHERE THERE WAS A DECISION RELATING TO NO NOTICE , NO COMPENS ABILITY . IT WAS AEALED , AND THEY SENT IT B ACK BECAUSE THERE WASN'T AN AWARD MADE , AND THERE WAS, IT IS ONLY THE CLAIMANT OR THE ALJ THAT C ANMAKE THE DECISION, NOT NICA, AND SO IF IT IS CLEARLY NOT GOING TO BE COMPENSABLE OR CLEARLY NO NOTICE HAS BEEN GIVEN THERE, IS NO NEED TO GO THROUGH THE JUDICIAL EFFORT TO DECIDE HOW MUCHMONEY TO AWARD PEOP LE, WHEN YOU ARE NOT GOING TO GE T AN AWARD. THAT IS WHY THE 2003 AMENDMENT WE NT IN THERE, BUT LET ME SP EAK SPECIFICALLY TOTHIS ISSUE. THE STATUTE , HAS AL WAYS READ , IN 766.304 , THE ADD MIGHT NOT STRAIGHT I HAVE LAW THE ADMINISTRATIVE LAW JUDGE SHALL FILE ALL CL AIMS PR IOR TO 766.301 TO 766.316 AND HAS FULL POW ER AND AUTHORITY GRANTED TO HIM OR HER AS NECESSARY TO CA RR Y OU T THE PURPOSE OF S UC H SECTION S. YOUR HONOR, THIS NOTICE ISSUE HAS ONLY GOTTEN UP BECAUSE IT IS A CONDITION PRECEDENT TO THE ALICABILITY OF NICA, AND FOR, FROM A PRA CTICAL PERSPECTIVE, IT HAS NEVER BEEN DISP UTED THAT THIS IS A BIG PROBLEM.AS A MATTER OF FACT, IT IS REAL, REAL EA SY AND SIMPLE. YOU GO IN. YOU FILE A NICA CLAIM. THE CLAIMANT RAISES THE NOTICE ISSUE. NICA DOESN'T KNOW ANY THING ABOUT THE NOTICE ISSUE. NICA WILL PAY IF THERE IS NO NOTICE, IF IT IS A QUA LIFIEDBABY. IT IS A DONE DEAL. THE ISSUE OF NO NOTICE IS USUALLY RAISED BY THE CLAIMANT TO ESC APE NICA AND GET INTO TORT IT. THE BOTTOM LINE IS WE CAN'T PROVE IT ONE WAY OR THE OTHER BECAUSE NICA DOESN'T GIVE NOTICE. NICA ONLY FURNISHS THE BROCHURES.WE ONLY FURN ISH WHAT IS NECESSARY AND IT HAS BEEN THE SAME NOTICE BY THE WAY , SINCE 19 99 1989. THE HOSPITALS INTERVENE AND SAY, YEAH , WE DID GIVE NOTICE OR THE DOCT ORS DO T HESAME THIN G, AND THE BOTTOM LINE IS THEY HAVE AN EVIDENTIARY HEARING ON THAT ISSUE. THE ONLY THING NICA CARES ABOUT IS THE FACT THAT YOU HAVE GOT TO HAVE SOME CONSISTENCY. WE CAN'T BE SETTING OUT THERE IN CIRCUIT COURT , TRYING TO STREAMLINE A SYSTEM OF COMPENSATION THE LEGISLATURE PUT INTO EFFECT , AND THE REASON THIS THING TAKES NINE YEARS IS BECAUSE YOU FILE IN CIRCUIT COURT , THEN A CIRCUIT JUDGE AB ATES IT AND SENDS IT BACK TO THE ADMINISTRATIVE LAW FOR UM, WHERE YOU GO IN AND HAVE IT , AND WE DI DN'T AEAL THE ISSUE OF COMPENSABILITY INFERRING SON. WE AEALED THE EFFECT THAT IN FERG USON . WE AFTERNOON OLD THE FACT, THE EFFECT THAT THE ADMINISTRATIVE LAW J UDGESAID THAT THE NOTICE ISSUE HAD, BECAUS E WE WERE LITIGATING THAT IN THE GOOGLEMAN CASE IN THE FOURTH DISTRICT, AND WE BELI EVE THAT THAT IS A JUD ICIAL ISSUE AS TO THE EFFECT.
CHIEF JUSTICE: IS T HAT STILL OUT THERE AS AN ISSUE?
NO. IT IS DONE. GOOGLEMAN. EVERYBODY IS FOLL OWING GOOGLEMAN.
IF YOU DID IT THE OTHER WAY AND HA D THE CI VIL ACTION THAT IS FILED. NOTICE BECOMES AN ISSUE . YOU BIFUR CATE IT AND HANDLE IT AT THE BEGINNING IN THE CIVIL PROCEEDING AND THE CIRCUIT JUDGE , THROUGH A JURY OR HOW EVER , MAK ES THE DETERMINATION OF NOTICE, THAT CIRCUIT JUDGE'S DECISION SHOULD BE BINDING, AND IT ADDRESSES THE ISSUE OF IMMUNI TY. IF IT GOES IN FAVOR OF T HEDEFENDANTS, THEN IT WOULD G O TO NICA, AND NICA DOES WHAT IT IS TASKED TO DO UND ER THE ACT. IF IT GOES AGAI NST T HEDEFENDANTS, THEN THE CIVIL PROCEEDING GOES FORWARD , AND YOU ARE NOT WASTING TIME IN THE ADMINI STRATIVE PROCEEDING.
WELL , IF THE PLAINTIFFS WOULD FILE FOR NICA WHEN THIS EVENING THEY HAVE GOT A BIRTH-RELATED INJURY, YOU WOULDN'T HAVE THAT PROBLEM , EITHER, BECAUSE THE LAW , UNDER 766.304 SAYS NO CIVIL ACTION MAY BE B ROUGHT U N TI L THE DETERMINATIONS UN DER 766.309 ARE MADE, SO THE BOTTOM LINE IS IT IS NOT NICA AND IT IS NOT THE DOCTORS AND THE HOSPITALS.
NO. I AG REE WI TH THAT , BUT IF A CLAIMANT E ITHER THINKS T HAT IT IS NOT A BIRTH -RELATEDINJURY, NOT A PROVIDER OR NOTICE WASN'T GIVEN, WHATEVER THE ISSUES MAY BE AND SEEK TO A VOID NICA AND THE REALITY OF IT IS THEY DO FILE THEM , T R YING TO AV OID THE EXCLUSIVEIVITY.
THAT'S RIG HT.
I THINK YOU HAVE AGR EED THAT THE ALJ DOES NOT HAVE TOTAL JURISDICTION OVER THE NOTICE ISSUE.
NO.I DON'T AGRE E WITH THAT.
AS FAR AS THE IMPACT ON IMMUNITY.
THE IM PACT IS A CIRCUITCOURT ISSUE. OKAY. BUT HE HAS THE JURISDICTION TO DETERMINE WHETHER NOTICE WAS GIVEN . NOW , LET ME
NOT THE ADEQUACY OF THE NOTICE.
YEAH. THE ADEQUACY OF THE NOTICE AS WELL.
OR THE WAIVER OF THE NOTICE.
ABSOLUTELY HAS THAT RIGHT.HE CANNOT COMMENT ON HERE IS WHERE THAT, YOU CAN'T COMMENT ISSUE COMES IN. IF THE DOCTOR AND THE HOSPITAL, B OTH , GIVE NOTICE, YOU HAVE GOT NO ISSUES . BECAUSE YOU ARE GOING TO B E R IGHT IN NICA , IF IT IS COMPENSABLE. IF THE DOCTOR DOESN'T GIVE NOTICE, WH ICH WAS GO OING ELLMAN, AND THE HOSPITAL - - WHICH WAS GOOGLEMAN, AND T HEPLAINTIFF DOES, AND THE PLAINTIFF WANTS TO SUE B OTH,YOU HAVE GOT TO GO I NTO CIRCUIT COURT AND ELECT YOUR REMEDIES. THAT IS WHAT GOOGLEMAN SAID AND YOU EITHER TAKE NICA, OR YOU SUE WH OEVER DIDN'T GIVE YOU NOTICE. NOW, THE BOTTOM LINE IS YOU ARE GOING TO GET AWAY FRO M THE STREAMLINED SYSTEM AND WE HAVE PRETTY MUCH TRIED TO P ULL THIS THING BACK D OWN TOGET HER.IF THE ALJ CANNOT MAKE THE FACTUAL DETERMINATIONS OF NOTICE, WE HAVE GOT A BIG MESS. EVERYWHERE .
WHAT IS , LET ME , BE FORE YOUR TIME RUNS OUT, WHAT IS THE PRESENT STATUS OF THE GLEN CASE?
RIGHT NOW FERG USON IS DONE, AS FAR AS WE A RECONCERNED, AND AS FA R AS GLEN IS CONCERNED, THE ISSUE ON GLENN IS WHETHER OR NOT THEY EVEN HAVE TO GIVE NOTICE, BECAUSE THE ALJ ACTUALLY FOUND OUT THEY DIDN'T, IN THE CASE , AND THE ONLY THING THAT WE ARE ALL UP HERE ON IS A SUA SP ONTE DETERMINATION, WHERE NO BODY ARGUED OR BRIEFED IT, AND B Y THE WAY , THERE ARE FOUR OTHER CASE S THAT ARE SE TTING UP HERE BEFORE THE COURT, ALL CERTIFIED ON DI RECT CONFLICT AND QU ITE HUMOROUS,IF I MAY JUST FOR ONE SE COND , JUDGE DAVIS ASKED ME IN THE LAST CASE, BAY FRONT TWO , THAT WE ARGUE DOWN IN THIRD DISTRICT, HE SAID WHAT DO YOU THINK WE OUGHT TO DO , AND WITH TO NGUE IN CHEEK , I SUGGESTED THAT HE RE CEDE FROM THEIR POSITION , AND SPECIFICALLY IN T HAT DECISION, THEY DECLINED MY INVITATION TO REC EDE. BUT WITH ALL DUE RESPECT , I BELIEVE THAT THE STAT E OF THE LAW SHOULD BE THAT THE DECISIONS OF THE FIRST , THIRD , FOURTH AND FI FTH DISTRICTS, RE LATING TO THE ALJ'S AUTHORITY TO DETERMINE NOTICE SHOULD BE THE LAW IN THE STATE. IT IS GOING TO MAKE IT FAR MORE EFFICIENT. IT IS NOT GOING TO HURT THE FERGUSON'S ISSUE IF T HEY STILL THINK THEY HAVE GOT A CLAIM. IT DOESN'T HAVE ANYTHING T O DO WITH NOTE I WITH NOTICE, BECAUSE WE DON'T CARE WHETHER NOTICE WAS GIVEN TO PAY. THANK YOU.
CHIEF JUSTICE: THANK YOU VERY MUCH.