Tabb ex rel. Tabb v. FLORIDA NICA

• Decision Date: 30 August 2004
• Docket Number: No. 1D03-3512.,1D03-3512.
• Citation: 880 So.2d 1253
• Parties: Clarice TABB, on behalf of and as parent and natural guardian of Dylan TABB, a minor, Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION and Grace Valente, M.D., And Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville, Intervenors, Appellees.
• Court: Florida District Court of Appeals

880 So.2d 1253

Clarice TABB, on behalf of and as parent and natural guardian of Dylan TABB, a minor, Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION and Grace Valente, M.D., And Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville, Intervenors, Appellees.

No. 1D03-3512.

District Court of Appeal of Florida, First District.

August 30, 2004.

Richard L. Nichols, Jacksonville, for Appellant.

Wilbur E. Brewton and Kelly B. Plante of Roetzel & Andress, L.P.A., Tallahassee, for Florida Birth-Related Neurological Injury Compensation Association, and James C. Rinaman and Sonya H. Hoener of Marks Gray, P.A., for Memorial Healthcare Group, Appellees.

KAHN, J.

Appellant Clarice Tabb challenges a final order of an administrative law judge (ALJ) on her claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan) contained in sections 766.301-.316, Florida Statutes (2001). As a threshold matter, Tabb challenges the subject matter jurisdiction of the ALJ to determine whether she received the required notice, pursuant to section 766.316, that appellee Memorial Healthcare Group (Memorial) participated in the Plan.¹ Tabb also argues that the ALJ erred in applying a presumption that the NICA Plan brochure was delivered to her because Memorial introduced evidence of a routine of providing such brochures to patients at pre-registration. We find that the ALJ did have subject matter jurisdiction to determine the notice issue, but because we agree, as Tabb argues, the ALJ erroneously applied a presumption, we reverse and remand this case for further proceedings.

I. Background

In August 2002, appellant Clarice Tabb, individually and as mother and next friend of Dylan Tabb, filed a petition with the Division of Administrative Hearings seeking compensation under the NICA Plan. In her petition, Tabb, although asserting that Dylan had suffered an injury compensable under the Plan, claimed she had not received notice that Memorial participated in the Plan. Under the law, patients who do not receive notice may proceed in court against a health care provider and are not limited to the NICA Plan's no-fault remedies. See Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309-10 (Fla.1997)

("[T]he only logical reading of the statute is that before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre-delivery notice of the health care provider's participation in the plan.... [T]he purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies."). The Florida Birth-Related Neurological Injury Compensation Association (NICA) responded to the petition and agreed the claim was compensable.

A hearing took place regarding whether the notice provisions of the Plan were satisfied, whether NICA's proposal to accept the claim for compensation should be approved, and the amount of compensation that should be awarded. On the notice issue, Memorial presented evidence that when Tabb came to the hospital to pre-register, the hospital had a routine pursuant to which the registration clerk provided the patient with a preadmission packet and this packet included a copy of the NICA brochure. Tabb presented evidence that the routine, assuming there was one, was not followed. She testified that she did not receive the NICA brochure when she pre-registered and no one discussed the NICA Plan with her. She was not asked to sign a receipt that she received the brochure. She testified, "I am certain that I was never even aware of NICA and I never signed any forms concerning NICA." Tabb could not recall who pre-registered her at the hospital and when asked if it was the clerk, Leslie Joseph, who had testified in support of Memorial's routine, Tabb answered, "Her hair was different." Tabb indicated it was "possible" she was the clerk but she testified, "I'm not exactly sure who was there that particular day." Joseph testified that she did not recall preregistering Tabb and that another clerk also performs that task. Joseph testified that both she and the other clerk are African-American women, and that the other clerk has longer hair, is lighter, taller, and a little thinner. In his order, the ALJ found the notice provisions were satisfied. In particular, with regard to notice provided by Memorial, the ALJ made the following findings:

11. As for Memorial Hospital and the notice issue, it is resolved that on September 20, 2001, when Ms. Tabb presented to Memorial Hospital for pre-registration, the hospital had an established routine whereby the registration clerk would provide the prospective patient with a preadmission packet, which included a copy of the NICA brochure. Consequently, there being no compelling proof to the contrary, it must be resolved that, [when] she presented for pre-registration, the hospital provided Ms. Tabb a copy of the NICA brochure. Watson v. Freeman Decorating Co.

The ALJ also found that the claim should be accepted and explained that the parties had stipulated to an award. Tabb has appealed.

II. Analysis

A. ALJ's Jurisdiction to Determine Notice

Despite the fact that she brought the claim in the administrative forum, Tabb now argues for the first time that the ALJ did not have jurisdiction to decide this issue. We address the issue because subject matter jurisdiction cannot be waived and can be raised at any time. See, e.g., Seven Hills, Inc. v. Bentley, 848 So.2d 345, 350 (Fla. 1st DCA 2003)

("Subject matter jurisdiction, which arises only as a matter of law, cannot be created by waiver, acquiescence or agreement of the parties, by error or inadvertence of the parties or their counsel, or by the exercise of the power of the court."); MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000) ("Subject matter jurisdiction may not be conferred upon the court by the consent of the parties, and the lack of subject matter jurisdiction may be raised for the first time on appeal.").

The ALJ's authority derives from section 766.304, Florida Statutes (2001):

The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303. If it is determined that a claim filed under this act is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law....

(emphasis added). In order to "hear and determine" a claim, an ALJ must, almost of necessity, decide whether notice was given, because if no notice was given, the exclusivity provision of the statute does not apply. See § 766.316, Fla. Stat. (2001); Galen, 696 So.2d at 310-11. Further, an ALJ has "exclusive jurisdiction" to determine whether a claim is compensable under the NICA Plan. In the absence of notice, the Plan does not apply. Given these provisions, we are led to conclude that an ALJ has jurisdiction to determine whether notice was given. As established law provides, an ALJ must have jurisdiction to determine whether the ALJ has jurisdiction. See, e.g., Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958)

(explaining that "a tribunal always has jurisdiction to determine its own jurisdiction").

Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes:

If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31.

Ch. 03-416, § 77, at 4117, Laws of Fla. In passing the amendment, the Legislature implicitly acknowledged the existing case law indicating that an ALJ has jurisdiction to determine whether notice was provided pursuant to section 766.316. See generally, e.g., City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla.2000)

(explaining that the Legislature is presumed to know the judicial construction of a law when passing a new version of the law and to have adopted the prior judicial construction unless a contrary intent is expressed).

Other district courts of appeal had, before 2003, indicated that an ALJ has jurisdiction to determine whether the notice requirement was satisfied in a particular case. See O'Leary v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 757 So.2d 624, 627 (Fla. 5th DCA 2000)

("The language used by the legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim. Notably, the determination of the adequacy of notice is not excluded from the duties of the administrative law judge.... [A]ny issue raising the immunity of a health provider, including the issue of whether the health provider satisfied the notice requirements of the Plan is an issue to be decided by the administrative law judge as one which relates to the question of whether the claim is...