                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

PUTNAM COMMUNITY                     NOT FINAL UNTIL TIME EXPIRES TO
MEDICAL CENTER,                      FILE MOTION FOR REHEARING AND
                                     DISPOSITION THEREOF IF FILED
      Appellant,
                                     CASE NO. 1D16-32
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.

_____________________________/

Opinion filed December 5, 2016.

An appeal from the Division of Administrative Hearings
Barbara Staros, Administrative Law Judge.

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].”




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      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,”

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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 birthweight 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

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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




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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 McCary 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

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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

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two-step approach: (1) deference to the lower tribunal on issues of historical fact,

but (2) de novo review of the constitutional issue. Id. “As in all constitutional

challenges, the statute comes to the Court clothed in the presumption of correctness

and all reasonable doubts about the statute’s validity must be resolved in favor of

constitutionality.” Id. Because neither a suspect class nor fundamental rights are

implicated here, we review the purported classifications under a rational basis test,

asking whether section 766.302(2)’s classifications are rationally related to a

legitimate government purpose. Doe v. Moore, 410 F.3d 1337, 1346 (11th Cir.

2005). A statute is constitutional under the rational basis test when there is any

reasonably conceivable set of facts that could provide a basis for it. Id.; see also

Amerisure Ins. Co. v. State Farm Mut. Auto. Ins. Co., 897 So. 2d 1287, 1290 (Fla.

2005) (rational basis test “provides the most lenient level of scrutiny under the

federal and state equal protection clauses”).

      We conclude that there is no equal protection violation for two reasons.

First, the hospital has failed to show that single gestations and multiple gestations

involve similar situations for equal protection purposes. Second, even assuming

equal protection analysis applies, section 766.302(2) withstands constitutional

scrutiny because the statutory weight distinction is rationally related to preserving

the actuarial soundness of the Plan’s no fault coverage. See Samples, 114 So. 3d at

917 (finding the portion of the Plan, which limited the parental award to $100,000

                                          8
per claim, as opposed to per parent, rationally related to maintaining the actuarial

soundness of the Plan).

      Turning to the first reason, the gestational weight requirements are key

elements in the definition of “birth-related neurological injury,” and a uniform

classification of all infants meeting this definition. The distinction in the weight

requirements for single gestation (one baby) versus multiple gestation (twins or

more) of 2,500 grams and 2,000 grams, respectively, was introduced by chapter

2001-277, Laws of Florida (2001) (inserting into section 766.302(2) the phrase

“for a single gestation or, in the case of a multiple gestation, a live infant weighing

at least 2,000 grams” immediately preceding “2,500 grams”). Prior to this

amendment, the statute did not provide for “multiple gestation” infants at all. See,

e.g., § 766.302(2), Fla Stat. (2001) (“‘Birth-related neurological injury’ means

injury to the brain or spinal cord of a live infant weighing at least 2,500 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.”).

      It’s conceivable that the Legislature recognized that multiple gestation

infants have a lower birth weight than single gestation infants because the former

must share womb space and nutrition. See Doe, 410 F.3d at 1346. And the addition

                                          9
of “multiple gestation infants” with a differential weight requirement, reflects the

Legislature’s recognition that the two deliveries are not similarly situated. As such,

the hospital has not established a basis for an equal protection claim. Duncan v.

Moore, 754 So. 2d 708, 712 (Fla. 2000) (“Equal protection is not violated merely

because some persons are treated differently than other persons. It only requires

that persons similarly situated be treated similarly.”); (citing City of Cleburne, Tex.

v. Cleburne Living Ctr., 473 U.S. 432, 439, (1985) (“The Equal Protection Clause

of the Fourteenth Amendment commands that no State shall ‘deny to any person

within its jurisdiction the equal protection of the laws,’ which is essentially a

direction that all persons similarly situated should be treated alike.”)).

      Even if it did, however, the rational basis test is met: NICA’s weight

distinctions withstand constitutional scrutiny because they’re rationally related to

maintaining the actuarial soundness of its no fault coverage. In 2004, the Florida

Legislature considered, and ultimately rejected, reducing the weight requirement of

single gestation infants from 2,500 grams to 2,000 grams. The Legislature’s

decision not to move forward with such a reduction, was made after it

commissioned a report from the Florida Office of Program Policy Analysis &

Government Accountability (“OPPAGA”), titled, NICA Eligibility Requirements

Could Be Expanded, But the Costs Would Increase Significantly, Report No. 04-

04 (Jan. 2004), http://www.oppaga.state.fl.us/reports/pdf/0404rpt.pdf. As the title

                                          10
of its report suggests, the OPPAGA concluded that reducing the weight

requirement from 2,500 to 2,000 grams for single gestation births would increase

costs; in fact, it concluded that the change would result in approximately thirteen

additional claims per year that “would yield additional annual claims expenses of

between $18.5 million and $24.2 million.” Id. at 7. The report continued that

“[b]ecause NICA covers all medically necessary expenses over the lifetime of each

child, an increase in the number of claims w[ould] subsequently increase program

expenses for providing services to claimants.” Id. at 8. This would include, based

on then-current information, an increase in premiums to all participating NICA

health care physicians from $5,000 per year to $17,415 per year, among other

significant increases. Id. at 11. Such increases would have undermined the express

purpose of the Plan to provide no fault compensation for birth-related neurological

injuries to infants—see sections 766.301-.316, Florida Statutes—by making the

financial costs untenable.

      NICA’s actuarial soundness has been expressly recognized as a legitimate

State interest sufficient to withstand equal protection challenges. See, e.g.,

Samples, 114 So. 3d at 917 (finding constitutional the Plan’s $100k award per

claim (as opposed to per parent), and holding that Florida “has a legitimate interest

in the actuarial soundness of the Plan” because “limiting the parental award to

$100,000 per claim is rationally related to maintaining the actuarial soundness of

                                         11
the Plan”). The Legislature conceivably chose not to reduce the weight

requirements for single gestation infants to further the legitimate governmental

interest of preserving the availability of exclusive benefits on a no-fault basis for a

limited class of catastrophic injuries. See Doe, 410 F.3d at 1346. As such, we hold

that section 766.302(2)’s weight requirements and distinctions between single and

multiple gestational births meet the rational basis test.

      AFFIRMED.

MAKAR, JAY, and M.K. THOMAS, JJ., CONCUR.




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