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In a ruling that has implications throughout Florida for the business of delivering babies, the state’s 5th District Court of Appeal in Daytona Beach has opened the door a bit wider to medical malpractice lawsuits in cases of birth injuries. In an 8-2 en banc ruling Friday, the 5th DCA held that the case of a 6-year-old Orlando-area girl named Raven Shoaf, who was left permanently disabled as a result of an allegedly botched delivery, does not fall under the state’s no-fault compensation system for birth trauma injuries. That system was created by the 1988 Birth-Related Neurological Injury Compensation Act, otherwise known as NICA. Wilbur E. Brewton, general counsel for the state no-fault system, said the state agreed with the 5th DCA ruling and would not appeal. Defense attorneys previously had argued that a 1997 Florida Supreme Court decision blocked certain types of plaintiffs from filing malpractice lawsuits in circuit court, forcing them instead to seek compensation in the less lucrative no-fault compensation system. One of the key issues before the 5th DCA was the standard by which the Supreme Court ruled that children with physical impairments, such as cerebral palsy, also were substantially mentally impaired — which would bring such cases under NICA. The decision in Adventist Health System v. Florida Birth-Related Neurological Injury et al. paves the way for Shoaf’s parents to bring her malpractice claim in circuit court, where the potential damage award is far greater than compensation provided under NICA. The ruling also erases uncertainty about the standard under which a victim is deemed mentally impaired under the law — although the dissenting judges complained that the ruling creates more confusion. NICA provides coverage to children who have suffered both physical and mental injuries related to birth. Doctors and hospitals make annual payments to NICA for victim payments; in return, the law precludes injured parties from suing the doctors and hospitals for malpractice in such cases. The law’s goal is to encourage doctors to practice obstetrics and to stabilize malpractice insurance premiums, according to the Internet site for the Birth-Related Neurological Injury Compensation Association, which governs NICA. The only other state with a similar no-fault birth injury statute is Virginia. Plaintiffs in birth-related malpractice cases often try to show that their cases do not fall under the NICA because the payout is small compared with what they can win in court. Shoaf, who was born at Florida Hospital in Altamonte Springs in November 1997, sustained serious injuries after being deprived of oxygen at birth. According to court documents, Shoaf cannot walk or talk, is unable to eat by mouth and must wear a diaper. In January 2000, her parents, Sandra and James Shoaf, sued Florida Hospital and the attending doctors, Dr. Michael Geiling and Dr. Juan Ravelo, in Seminole Circuit Court for malpractice. The Shoafs prevailed with the 5th DCA because they demonstrated that their daughter was only physically impaired, not mentally impaired, said her family’s attorney, John E. Leighton of Leesfield Leighton Rubio Mahfood & Boyers in Miami. According to Leighton, the little girl and her family would collect up to $100,000 under NICA. In contrast, her parents now will proceed with a lawsuit seeking damages in excess of $20 million. Leighton represents the Shoafs with Miami solo practitioner Jay M. Levy. Florida Hospital was defended by Robert A. Hannah of Hannah Estes & Ingram in Orlando and Raymond T. Elligett Jr., partner of Schropp Buell & Elligett in Tampa. Thomas E. Dukes of McEwan Martinez & Dukes in Orlando represented Geiling, while Pierre J. Seacord of Ringer Henry Buckley & Seacord in Orlando represented Ravelo. None of the defense lawyers returned calls for comment. NOT ELIGIBLE FOR NICA After Shoaf filed suit, the defendants responded with a motion asking that the case be referred to the state Division of Administrative Hearings to determine whether the girl was covered by NICA. Seminole Circuit Judge Nancy Alley agreed and required Shoaf’s attorneys to file a petition with the state. In March 2002, an administrative law judge found that Shoaf was not eligible for compensation under NICA. But on appeal, in March 2003, a three-judge panel of the 5th DCA reversed the administrative judge’s ruling. In its 2-1 decision sending the case into the NICA system, the panel cited the Supreme Court’s 1997 decision in Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, known as the Birnie case. In Birnie, the high court upheld a ruling by an administrative law judge that a patient was covered by NICA because his physical injuries were so severe that they resulted in him being mentally impaired. In effect, that judge ruled that despite the fact that the child was mentally sound, the physical impairment so profoundly affected his learning ability that the child was deemed mentally impaired. In the wake of the Birnie decision, experts wondered whether the high court had set a new standard for determining mental impairment. Previously, it was thought that mental and physical impairment were decided separately. If there was a new standard, it seemingly made it easier for defendants to argue that birth injury cases fell under NICA and could not be filed in circuit court. NO NEW STANDARD On Friday, however, the 5th DCA held that the high court did not adopt a new standard in Birnie, reversing the three-judge panel’s decision. Instead, the 5th DCA held that in Birnie the Supreme Court only had looked to see whether the administrative law judge’s decision was supported by competent evidence — which it deemed it was — and had not set a new standard. In particular, the 5th DCA majority interpreted the Supreme Court ruling to not have adopted the standard outlined by the administrative law judge. That judge effectively allowed for a physical impairment to create a mental disability. “To say that physical disabilities that impede the cognitive and social development of a child alone are enough to constitute a mental impairment violates the dichotomy identified by the high court in Birnie,” wrote Judge Judge Jacqueline R. Griffin for the 5th DCA majority. Griffin had dissented from the 5th DCA panel ruling overturning the administrative law judge’s decision in the Shoaf case. “If this were the true definition of ‘substantial mental impairment,’” Judge Griffin wrote, “then seemingly most children with cerebral palsy would be classifiable as ‘substantially mentally impaired,’ although the evidence indicates that cerebral palsy and mental defect are two separate injuries.” In one of the two dissents, Judge Winifred J. Sharp called for the Supreme Court or Legislature to give guidance on what is covered by birth-related neurological injuries. “Right now,” Sharp wrote, “it is up for grabs.”

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