Putnam Cmty. Med. Ctr. v. Fla. Birth-Related Neurological Injury Comp. Ass'n

• Decision Date: 05 December 2016
• Docket Number: No. 1D16–32.,1D16–32.
• Citation: 204 So.3d 598
• Parties: PUTNAM COMMUNITY MEDICAL CENTER, Appellant, v. FLORIDA BIRTH–RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, a/k/a Nica, and Jerra Myrick, individually and as natural parent of Jamyrah Debose, a minor, Appellee.
• Court: Florida District Court of Appeals

204 So.3d 598

PUTNAM COMMUNITY MEDICAL CENTER, Appellant,

v.FLORIDA BIRTH–RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, a/k/a Nica, and Jerra Myrick, individually and as natural parent of Jamyrah Debose, a minor, Appellee.

No. 1D16–32.

District Court of Appeal of Florida, First District.

Dec. 5, 2016.

David P. Ferrainolo of Hall Prangle & Schoonveld, LLC, Tampa, for Appellant.

Stephen A. Ecenia and Tana D. Storey of Rutledge Ecenia, P.A., Tallahassee for Appellee Florida Birth–Related Neurological Injury Compensation Association; Joshua T. Frick of Hogan Frick, Orlando, for Appellee Jerra Myrick, individually and as natural parent of Jamyrah Debose, a minor.

PER CURIAM.

This case involves Florida's Neurological Injury

Compensation Act ("NICA"), which exists to provide benefits to eligible infants who sustain severe birth-related neurological injuries. Putnam Community Medical Center ("the hospital") challenges section 766.302(2) of NICA on state and federal equal protection grounds, arguing that it impermissibly discriminates between single and multiple gestation infants by utilizing different minimum weight thresholds as a basis for determining compensability. We affirm and write to explain why.

I.

Jamyrah Debose, an infant, suffered neurological injuries

from a lack of oxygen to her brain during the birthing process. She was 39.5 weeks at delivery, and weighed 2,440 grams. As a cautionary first step to filing a medical malpractice lawsuit against the obstetrical physician and hospital, her mother, Jerra Myrick, filed an administrative petition for benefits under protest, seeking a determination of whether Jamyrah's injuries were compensable under NICA's plan. The administrative law judge ("ALJ") permitted intervention by the hospital, which claimed that its statutory immunity from civil suit—a benefit of "compulsory participation in NICA"—would dissolve if Myrick's claim was deemed non-compensable, leaving it open to potential liability in a civil lawsuit. The hospital contended it had a "vested, statutory and constitutional right and substantial interest in evaluating and presenting a factual and legal analysis concerning the nature of the condition of the minor and application of [NICA]."

Appellee, Florida Birth–Related Neurological Injury Compensation Association (the "Association"), filed a motion for summary final order, arguing that Jamyrah's injury was non-compensable because she was a product of single gestation and below the statutory minimum threshold of 2,500 grams; as such, she didn't suffer a "birth-related neurological injury

," which is defined as:

injury to the brain

or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

§ 766.302(2), Fla. Stat.

The hospital opposed the motion, contending that a full evaluation on the compensability of the claim should be made because Jamyrah was "a normal weight newborn, the product of a mother small in stature, and strict observance to the 2500 weight qualification serves only to undermine the purpose of the Plan and intent of the legislature." Attached to the hospital's opposition was an affidavit of Dr. Frederick E. Harlass, a board certified OB–GYN, who the hospital contended would be "willing to testify that the 2500 gram requirement [was] unreasonable and arbitrary under the facts of this clinical situation." In his affidavit, Dr. Harlass attested that Jamyrah "clearly qualified for the NICA compensation pool," notwithstanding her birth weight; he further asserted that the statute's 2,500 gram requirement was intended to exclude infants of extreme prematurity and those with intrauterine growth retardation

diagnosed with cerebral palsy, of which Jamyrah was neither. He concluded that Jamyrah's weight was normal for a baby born to a mother of small stature such as Myrick.

On December 7, 2015, the ALJ granted the Association's motion for a summary final order and dismissed Myrick's petition with prejudice, determining that the undisputed evidence showed that Jamyrah was a single gestation infant with a birth weight of less than 2,500 grams, making her unqualified for compensation under the Plan. The ALJ further concluded that the hospital's argument to depart from the strict construction of the statute was an equitable one, but the ALJ had neither the discretion to ignore a clear statutory requirement nor to decide constitutional issues.

The hospital appeals, arguing for the first time that section 766.302(2)'s differing birth weight requirements violate state and federal equal protection guarantees because the law impermissibly discriminates "among members of the class of full-term infants who have suffered a birth-related neurological injury

."

II.

We limit our review of the hospital's constitutional claims to a facial challenge, which may be raised for the first time on appeal, see Key Haven Associated Enterprises Inc. v. Board. of Trustees of Internal Improvement Trust Fund, 427 So.2d 153, 157–58 (Fla.1982) ; and the hospital is foreclosed from raising an as-applied challenge because it never reserved the right to have an administrative hearing to flesh out the factual basis of an as-applied claim. See Samples v. Fla. Birth–Related Neurological Injury Comp. Ass'n, 114 So.3d 912, 914 (Fla.2013) (noting that "the Samples reserved the right to have a hearing before an ALJ to raise the issue of the interpretation and constitutionality [on equal protection grounds] of section 766.31(1)(b)1 [, which grants a single award of 100k regardless of the number of parents claiming the amount]"); see also Fla. Dep't of Agric. & Consumer Servs. v. Mendez, 98 So.3d 604, 608 (Fla. 4th DCA 2012) ("Unlike facial challenges to a statute, as-applied challenges are subject to the rules of preservation.") (citations omitted).

We also limit consideration of the hospital's constitutional challenge to the federal constitution because the hospital is not a "natural person" within the protection of our state constitution. Art. I, § 2, Fla. Const. The term "natural" was interposed to clarify that the provision does not apply to corporations, only to private persons. See generally Talbot D'Alemberte, The Florida State Constitution: A Reference Guide (1991); cf. Alexis Inc. v. Pinellas Cnty., Fla., 194 F.Supp.2d 1336, 1342 (M.D.Fla.2002) (corporations are " ‘persons' within the meaning of the equal protection and due process of law clauses of [the Fourteenth Amendment]") (citations omitted).

III.

We first address the threshold issue of standing. See McCarty v. Myers, 125 So.3d 333, 336 (Fla. 1st DCA 2013). Despite the Association's arguments to the contrary, the hospital has standing because it has a direct economic interest in avoiding being pulled into civil litigation over liability for injuries that are covered by NICA, whose purpose "is to limit a participating physician's exposure to civil liability in cases where the doctor's professional involvement could make him or her a defendant in a lawsuit." See Fluet v. Fla. Birth–Related Neurological Injury Comp. Ass'n, 788 So.2d 1010, 1012 (Fla. 2d DCA 2001). Absent standing, hospitals and physicians would be unable to defend their interests and avoid potential civil liability, a result that the NICA statute does not support.

In fact, as a matter of course hospitals are frequently permitted to intervene in these types of cases even though it's the parent or guardian who initiates a petition for NICA benefits. The reason they are permitted to intervene is because under Florida's Administrative Procedures Act, third-party standing is triggered by a showing that that party has "substantial interests" that will be determined in the proceeding. See § 120.52(13)(b), Fla. Stat. (defining a "party" to include "[a]ny other person ... whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party") (emphasis added). What better example of one's "substantial interests" being affected than an adverse administrative decision that potentially exposes a hospital to substantial civil liability.

Constitutional standing differs from APA standing, but tort immunity is a substantial enough interest in these cases that a hospital should be permitted to raise a federal equal protection constitutional challenge to NICA's provisions that potentially negate the immunity the statute was designed to provide.See § 766.301(1)(a), Fla. Stat. (the Legislature recognizing that "physicians practicing obstetrics are high-risk medical specialists for whom malpractice insurance premiums are very costly, and recent increases in such premiums have been greater for such physicians than other physicians"); § 766.302(2), Fla. Stat. (explaining that the remedies under NICA preclude all other legal remedies available to an injured infant, the parents, or legal representative). Thus, we conclude that the hospital has standing to raise its facial federal constitutional challenge under the equal protection clause.

IV.

We review the constitutionality of a statute, a pure question of law, de novo. City of Ft. Lauderdale v. Dhar, 185 So.3d 1232, 1234 (Fla.2016). Mixed questions of law and fact that ultimately determine constitutional rights involve a two-step approach: (1) deference to the lower tribunal on issues of...