IN THE SUPREME COURT OF FLORIDA

Transcription

1 IN THE SUPREME COURT OF FLORIDA BASSAM ABIFARAJ and RAYYA ABIFARAJ, on behalf of and as parents and natural guardians of SAMER ABIFARAJ, a deceased minor, vs. Petitioners, SC L.T. Case No.: 1D JOHN L. RINELLA, M.D. and RINELLA, HUDANICH, GREENBERG, RALPH & SIJIN, P.A., JOAQUIN TARANCO, M.D., and TARANCO & ASSOCIATES ANESTHESIOLOGY GROUP, P.A. d/b/a PLANTATION TAMARAC ANESTHESIA GROUP, P.A., PLANTATION GENERAL HOSPITAL, and FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION ( NICA ), Respondents. / RESPONDENT FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION S BRIEF ON JURISDICTION On Petition for Discretionary Review from the District Court of Appeal, First District of Florida Wilbur E. Brewton, General Counsel Kelly B. Plante, Esquire Roetzel & Andress, L.P.A. 225 South Adams Street Suite 250 Tallahassee, FL Ph: Fax: Attorneys for Respondent NICA

2 TABLE OF CONTENTS Table of Authorities i Preliminary Statement Summary of Argument Argument I. THE FIRST DCA S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS OF THE SECOND DISTRICT COURT OF APPEAL AS REQUIRED FOR DISCRETIONARY JURISDICTION II. THIS COURT SHOULD NOT EXERCISE ITS DISCRETION TO REVIEW THE DECISION Conclusion Certificate of Service Certification of Font Size and Style

3 TABLE OF AUTHORITIES FLORIDA CASES PAGE NO. Ciongoli v. State, 337 So. 2d 780 (Fla. 1976) Cowan Liebowitz & Latman, P.C., et al. v. Kaplan, 902 So. 2d 755 (Fla. 2005) First Union National Bank v. Turney, 832 So. 2d 768 (Fla. 1st DCA 2002) Ford Motor Company v. Kikis, 401 So. 2d 1341 (Fla. 1981) Kennel Club v. Bd. of Business Regulation, 276 So. 2d 823 (Fla. 1973) Rinella, et al. v. Abifaraj, et al., 908 So. 2d 1126 (Fla. 1st DCA 2005) , 6 Soto v. State, 711 So. 2d 1275 (Fla. 4th DCA 1998) State Farm Fire and Casualty v. Higgins, 788 So. 2d 992 (Fla. 4th DCA 2001) State v. Dwyer, 332 So. 2d 333 (Fla. 1976) The Florida Star v. B.J.F., 530 So. 2d 286 (Fla. 1988) Thweatt v. State, 861 So. 2d 1284 (Fla. 2004) Tippens v. State, i

4 897 So. 2d 1278 (Fla. 2005) FLORIDA CASES PAGE NO. Watson Realty Corp. v. Quinn, 452 So. 2d 568 (Fla. 1984) FLORIDA STATUTES PAGE NO. Section , Florida Statutes , 4, 6 Section , Florida Statutes , 5 OTHER AUTHORITIES PAGE NO. Article V, Section 3(b)(3), Florida Constitution , 7, 8, 10 Rule 9.030(a)(2)(iv), Fla. R. App. P Rule 9.120(d), Fla. R. App. P ii

5 PRELIMINARY STATEMENT In this Answer Brief, the following terms and abbreviations will be utilized: Respondent, FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, will be referred to as NICA. Respondents, JOHN L. RINELLA, M.D. and RINELLA, HUDANICH, GREENBERG, RALPH & SIJIN, P.A., JOAQUIN TARANCO, M.D., and TARANCO & ASSOCIATES ANESTHESIOLOGY GROUP, P.A. d/b/a PLANTATION TAMARAC ANESTHESIA GROUP, P.A., PLANTATION GENERAL HOSPITAL, will be referred to as the doctors, the Hospital, or Respondents. Petitioners, BASSAM ABIFARAJ and RAYYA ABIFARAJ, on behalf of and as parents and natural guardians of SAMER ABIFARAJ, a deceased minor, will be referred to as Claimants or Petitioners. Administrative Law Judge Kendrick shall be referred to as the ALJ. Sections , et seq., Florida Statutes, will be referred to as the NICA Statute or the NICA Plan. The Division of Administrative Hearings will be referred to as DOAH, and the First District Court of Appeal shall be referred to as the lower court. The Record on Appeal will be cited as R: followed by the appropriate page number(s). 1

6 SUMMARY OF THE ARGUMENT The Petitioners seek review of the First District Court of Appeal s decision on the basis that it expressly and directly conflicts with decisions issued by the Second District Court of Appeal which hold that an ALJ lacks jurisdiction to determine any issues related to compliance with the notice requirement of Section , Florida Statutes. This argument ignores that the sole issue decided by the Court was the ALJ s jurisdiction to determine the applicability of the willful and wanton exception to Plan exclusivity under Section , Florida Statutes. Any reference to notice was simply in passing dicta. This is insufficient to support this Court s exercise of discretionary conflict jurisdiction with respect to the instant case. ARGUMENT I. THE FIRST DCA S DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH DECISIONS OF THE SECOND DISTRICT COURT OF APPEAL AS REQUIRED FOR DISCRETIONARY JURISDICTION. The Petitioners request this Court to grant review of the opinion rendered in this case by the First District Court of Appeal on August 4, 2005, under this Court s discretionary jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution, which provides, in pertinent part, that the Supreme Court may review any decision of a district court of appeal that... expressly and directly 2

7 conflicts with a decision of another court of appeal or of the Supreme Court on the same question of law. See also Rule 9.030(a)(2)(iv), Fla. R. App. P. The requirement that the decision for which review is sought must expressly and directly conflict with an opinion of another district court of appeal, has been explained as requiring the following: This Court in the broadest sense has subject-matter jurisdiction under article V, section 3(b)(3) of the Florida Constitution, over any decision of a district court that expressly addresses a questions of law within the four corners of the opinion itself. That is, the opinion must contain a statement or citation effectively establishing a point of law upon which the decisions rests.... * * * We premise our holding on our conclusion that article V, section 3(b)(3) creates and defines two separate concepts. The first is a general grant of discretionary subject-matter jurisdiction, and the second is a constitutional command as to how the discretion itself may be exercised. In effect, the second is a limiting principle dictated to this Court by the people of Florida. While our subject-matter jurisdiction in conflict cases necessarily is very broad, our discretion to exercise it is more narrowly circumscribed by what the people have commanded: * * * Thus, it is not necessary that conflict actually exist for this Court to possess subject-matter jurisdiction, only that there be some statement or citation in the opinion that hypothetically could create conflict if there were another opinion reaching a contrary result....while this Court has subject-matter jurisdiction to hear any petition arising from an opinion that establishes a point of law, we have operated within the intent of the constitution s framers, as we perceive it, in refusing to exercise our discretion where the opinion below establishes no point of law contrary to a decision of this Court or another district court. [Emphasis added.] 3

8 The Florida Star v. B.J.F., 530 So. 2d 286, (Fla. 1988); See also Tippens v. State, 897 So. 2d 1278, 1280 (Fla. 2005); First Union National Bank v. Turney, 832 So. 2d 768, 770 (Fla. 1 st DCA 2002). In the instant case, the only question of law established by the decision is that the ALJ correctly determined that he lacked jurisdiction to determine the applicability of the willful and wanton exception found in Section , Florida Statutes, to the Plan s exclusivity. Although additional issues were raised by both the Respondent healthcare providers and the Petitioners, the First District Court of Appeal expressly refused to address those issues. The First District Court of Appeal specifically stated: Appellants raise two issues on appeal, only one of which merits discussion. On cross-appeal, appellees raise two additional issues, neither of which warrants discussion. Rinella, et al. v. Abifaraj, et al., 908 So. 2d 1126 (Fla. 1 st DCA 2005). The First District Court of Appeal ultimately held: Id. at If, as appellants contend, the Legislature intended to confer jurisdiction over the willful and wanton issue to the ALJ, it could have done so. However, under the plain meaning of the statute as written, the ALJ properly determined that he did not have jurisdiction to decide the willful and wanton issue. The Petitioners erroneously base their argument that the First District Court of Appeal s decision expressly and directly conflicts with recent opinions entered 4

9 by the Second District Court of Appeal 1 specifically holding that the ALJ does not have jurisdiction to determine issues relating to notice under Section , Florida Statutes. Thus Petitioners base the alleged conflict on the following portion of the First District Court of Appeal s decision: We review an ALJ s interpretation of the NICA Plan de novo.... As amended in 1998, section , Florida Statutes, grants the ALJ exclusive jurisdiction to deter-mine whether a claim for NICA plan benefits is compensable and references section for a list of issues that the ALJ must decided in determining compensability... Section (1), Florida Statutes (1997), provides that the ALJ must make the following determinations: (a) [w]hether the injury claimed is a birth-related neurological injury, (b) [w]hether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, and (c) [h]ow much compensation, if any, is awardable, pursuant to section The ALJ also has jurisdiction to make factual findings concerning whether the notice requirement found in section [footnote omitted] has been satisfied. Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass n, 880 So. 2d 1253, 1258 (Fla. 1 st DCA 2004); University of Miami v. M.A., 793 So. 2d 999, 1000 (Fla. 3d DCA 2001); O Leary v. Fla. Birth-Related Neurological Injury Compensation Ass n, 757 So. 2d 624, 627 (Fla. 5 th DCA 2000). This is because, a condition precedent to invoking the NICA plan as a patient s exclusive remedy, healthcare providers must show that they provide the patient with timely notice of their participation in the plan. [Citations and footnotes omitted] [Emphasis added] 1 The following opinions issued by the Second DCA are currently pending before this Court for review: All Children s Hosp., Inc. v. Dep t of Admin. Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004); Fla. Birth-Related Neurological Injury Compensation Ass n v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004); Fla. Health Sciences Ctr. v. DOAH, 871 So. 2d 1062 (Fla. 2d DCA 2004); Bayfront Medical Ctr., Inc. v. Fla. Birth-Related Neurological Injury Compensation Ass n, 893 So. 2d 636 (Fla. 2d DCA 2005). 5

10 Id. at Contrary to the Petitioners assertions, the opinion rendered by the First District Court of Appeal does not expressly and directly conflict with the Second District Court of Appeal s decisions. The First District Court of Appeal s acknowledgment of the ALJ s jurisdiction to determine notice did not establish a point of law upon which the decisions rests, as evidenced by the face of the opinion. The First District Court of Appeal s decision regarding the ALJ s jurisdiction to determine the applicability of the willful and wanton exception is based on the plain meaning Section , Florida Statutes, and the application of the rules of statutory construction. See Id. at The holding has no relation to the Court s acknowledgment of the ALJ s jurisdiction to determine notice. The First District Court of Appeal s decision does not expressly or directly conflict with the Second District Court of Appeal s notice decisions on a question of law upon which the instant decision is based. In addition, in addressing what is required to find an express conflict on the face of an opinion, this Court has explained: The first issue the meaning of the expressly requirement arises from the fact that the district court below did not identify a direct conflict of its decision with any other Florida appellate decisions. The court s opinion discusses, however, the basis upon which it reversed the trial court s entry of a directed verdict for Ford. This discussion, of the legal principles which the court applied supplies a sufficient basis for a petition for conflict review. It is not necessary that a district court explicitly identify conflicting district court or supreme court decisions in its opinion in order to create an express conflict under section 3(b)(3). [Emphasis added.] 6

11 See Ford Motor Company v. Kikis, 401 So. 2d 1341, 1342 (Fla. 1981). This discussion emphasizes that it is the legal principles applied to reach the ultimate conclusion of the Court, not non-essential statements acknowledging existing law, which play no role in the Court s decision. Although dicta has provided a basis for conflict jurisdiction when such dicta comes from the Supreme Court, dicta in an opinion of a district court of appeal does not rise to the same level of precedence. See Kennel Club v. Bd. of Business Regulation, 276 So. 2d 823, 826 (Fla. 1973). In Cowan Liebowitz & Latman, P.C., et al. v. Kaplan, 902 So. 2d 755 (Fla. 2005), this Court granted review based on conflict of a Third District Court of Appeal Decision and dictum in two Supreme Court cases regarding application of a blanket prohibition against assignment of legal malpractice claims. See also Watson Realty Corp. v. Quinn, 452 So. 2d 568 (Fla. 1984) (granting conflict jurisdiction due to conflict with dicta in a Supreme Court decision). In fact, this Court, in Ciongoli v. State, 337 So. 2d 780, 781 (Fla. 1976), discharged its acceptance of conflict jurisdiction originally granted pursuant to Article V, Section 3(b)(3), Florida Constitution, because the alleged conflict was based on mere Obiter dicta. The Court stated, [a]lthough the views expressed in Cribbs and the views expressed in the opinion below are not consonant in every particular, we conclude there is no direct conflict between the holdings of those decisions, and no conflict within the meaning of the Florida Constitution, art. V, s 7

12 3(b)(3)(1975). See also Soto v. State, 711 So. 2d 1275, 1276 n. 2 (Fla. 4 th DCA 1998)( We are not certifying conflict with Riley because the language in Riley regarding mopeds was pure dicta, and is thus without force as precedent. ); State Farm Fire and Casualty v. Higgins, 788 So. 2d 992, n.6 (Fla. 4 th DCA 2001). The alleged conflict here is between the holding of the Second District Court of Appeal that the ALJ does not have jurisdiction to determine notice and the passing dicta of the First District Court of Appeal in an opinion addressing a separate and distinct issue which does not give rise to an express and direct conflict as required under Article V, Section 3(b)(3), Florida Constitution. II. THIS COURT SHOULD NOT EXERCISE ITS DISCRE- TION TO REVIEW THE DECISION. This Court should not exercise its discretionary jurisdiction in the instant case for the following reasons. First, the Petitioners argue that this Court should exercise is discretion because a final order rendered by the ALJ in a NICA case may be appealed to the District Court of Appeal located where the party resides, or in the First District Court of Appeal where the agency maintains its headquarters. The Petitioners assert that if this Court fails to exercise jurisdiction over this case, the ALJ would be left with conflicting authority with respect to his jurisdiction. This argument ignores the fact that all the Second District Court of Appeal s notice 8

13 decisions are currently pending 2 before the Court and that once this Court addresses the issue and renders an opinion, such opinion is binding on all district courts of appeal as well as the ALJ. See Thweatt v. State, 861 So. 2d 1284 (Fla. 2004), citing State v. Dwyer, 332 So. 2d 333, 335 (Fla. 1976)( Where an issue has been decided in the Supreme Court of the state, the lower courts are bound to adhere to the Court s ruling when considering similar issues.... ). Thus, the ALJ will not be left with conflicting authority once this Court renders its opinion with respect to this issue in the pending Second District Court of Appeal s decisions. Second, the Petitioners argue that the Court should exercise its jurisdiction to ensure that the decision in this case will be consistent with the decisions to be rendered by this Court in the pending Second District Court of Appeal s notice decisions. However, this again ignores the fact that the First District Court of Appeal solely addressed the issue of law regarding the ALJ s jurisdiction to determine the applicability of the willful and wanton exception. The Court did not determine any issues or establish a point of law with respect to notice. Whether the ALJ has jurisdiction to determine notice was not the basis of the Court s decision. No matter the outcome of the pending notice cases, a decision with respect to notice will have no affect on the First District Court of Appeal s opinion 2 Although this occurred after the filing of the Petitioners Initial Brief, this Court has scheduled two of the Second District Court of Appeal cases for Oral Argument on January 11,

14 which only addresses the ALJ s jurisdiction to determine the applicability of the willful and wanton exception. Finally, the Petitioners assert that the Court should exercise its discretion to review the decision below because the decision was wrong. NICA respectfully submits that this portion of the Petitioners Jurisdictional Brief is improper because it presents arguments as to the merits of the case. Rule 9.120(d), Florida Rules of Appellate Procedure, provides that arguments presented in the Petitioner s Jurisdictional Brief shall be limited solely to the issues of the supreme court s jurisdiction. Therefore, the portion of the Petitioners Jurisdictional Brief addressing the merits of the review should be stricken as improper and contrary to the requirements of the applicable rule. CONCLUSION There is no express and direct conflict on a point of law upon which the instant decision is based with a decision of another district court of appeal as required by Article V, Section 3(b)(3), of the Florida Constitution and the Florida Rules of Appellate Procedure, for this Court to exercise its discretionary jurisdiction. Jurisdiction should be denied. WHEREFORE, Respondent, Florida Birth-Related Neurological Injury Compensation Association, respectfully requests that this Court decline to exercise its discretionary jurisdiction over the instant case. 10

15 Respectfully submitted, Wilbur E. Brewton, General Counsel Florida Bar No.: Kelly B. Plante, Esquire Florida Bar No.: ROETZEL & ANDRESS, L.P.A. 225 South Adams Street Suite 250 Tallahassee, FL Telephone: Facsimile: Attorneys for Respondent NICA 11

16 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been provided by U.S. Mail this 7th day of November, 2005, to: Barbara Green, Esquire BARBARA GREEN, P.A. Gables One Tower Suite South Dixie Highway Coral Gables, FL Esther E. Galicia, Esquire Merrilee A. Jobes, Esquire Liana Silsby, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 2866 East Oakland Park Blvd. Ft. Lauderdale, FL Timothy Martin, Esquire Martin, Lister & Alvarez, P.A NW 154th Street Suite 230 Miami Lakes, FL Nancy Gregoire, Esquire Darlene Stosik, Esquire Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A. One Financial Plaza Suite S.E. 3rd Avenue Ft. Lauderdale, FL Hal B. Anderson, Esquire John W. Mauro, Esquire Billing, Cochran, Heath, Lyles & Mauro, P.A. 888 S.E. 3rd Avenue Suite 301 Ft. Lauderdale, FL Mayer Gattegno, Esquire Mayer Gattegno, P.A University Drive Coral Springs, FL Kelly B. Plante, Esquire CERTIFICATION OF FONT SIZE AND STYLE I HEREBY CERTIFY that this Respondent s ANSWER BRIEF has been typed using the 14 point Times New Roman font as required by Rules 9.210(a) and 9.210(a)(2), Florida Rules of Appellate Procedure. Kelly B. Plante, Esquire