07-5818 JONI MACRI, NICODEMO (NIC) MACRI, and THE ESTATE OF JENA MACRI DECEASED, v. CLEMENTS AND ASHMORE, P.A., d/b/a NORTH FLORIDA WOMEN'S CARE, DAVID O'BRYAN, M.D., RACHEL DEPART, CNM, and FLORIDA B

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Laws-info.com » Cases » Florida » Florida First District Court » 2009 » 07-5818 JONI MACRI, NICODEMO (NIC) MACRI, and THE ESTATE OF JENA MACRI DECEASED, v. CLEMENTS AND ASHMORE, P.A., d/b/a NORTH FLORIDA WOMEN'S CARE, DAVID O'BRYAN, M.D., RACHEL DEPART, CNM, and FLORIDA B

State: Florida

Court: Florida First District Court

Docket No: 07-5818

Case Date: 07/16/2009

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JONI MACRI, NICODEMO (NIC) MACRI, and THE ESTATE OF JENA MACRI, DECEASED, Appellants, v. CLEMENTS AND ASHMORE, P.A., d/b/a NORTH FLORIDA WOMEN'S CARE, DAVID O'BRYAN, M.D., RACHEL DEPART, CNM, and FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION, Appellees. _____________________________/ Opinion filed July 16, 2009.

CASE NO. 1D07-5818

An appeal from the Circuit Court for Leon County. P. Kevin Davey, Judge. Donald M. Hinkle, of Hinkle and Foran, Tallahassee, for Appellants. Wilbur E. Brewton, General Counsel, Kelly B. Plante, and Tana D. Storey, of Brewton Plante, P.A., Tallahassee, for Appellee Florida Birth-Related Neurological Injury Association; Dennis Jackson Martin & Fontela, P.A., Tallahassee, and Carr, Allison, Pugh, Howard, Oliver & Sisson, Tallahassee, and Mark Hicks, Dinah Stein, and Erik P. Bartenhagen, of Hicks, Porter, Ebenfeld &

Stein, Miami, for Appellees Clement and Ashmore, P.A., d/b/a North Florida Women's Care, and David O'Bryan, M.D., and Rachel Depart, CNM.

ALLEN, J. The appellants challenge a summary judgment entered for the appellees on wrongful death claims with allegations of medical negligence. Among other

defenses, the appellees asserted that those claims are precluded by the exclusivity of remedy provision in the Florida Birth-Related Neurological Injury Compensation Plan, at section 766.303(2), Florida Statutes. The appellants

maintained that the claims are allowed under the "willful and wanton" exception in section 766.303(2). In entering summary judgment the court reasoned that the claims could not proceed as the appellants had not pled the "willful and wanton" exception in their complaint. But section 766.303(2) exclusivity is an affirmative defense, which the appellants did not have to negate in their complaint, and the court should not have entered the summary judgment. The appellants' civil action for wrongful death and bodily injury was based on allegations of medical negligence in connection with the birth and ensuing death of a child. The action was filed against the delivering obstetrician and the attending nurse-midwife, along with the professional association which was their 2

employer, and the hospital where the child was born.

The hospital was

subsequently dismissed, upon its settlement of a medical negligence claim for this incident. Meanwhile, the wrongful death action was abated on motion by the other defendants so as to compel the appellants to pursue relief under the Florida BirthRelated Neurological Injury Compensation Plan. sections 766.301 through 766.316, Florida This Plan, as established at Statutes, provides no-fault

compensation for qualifying injuries. However, only a limited recovery may be had under the Plan, and that is made the exclusive remedy with only certain exceptions. See

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