CopyCited 40 times | Published | Supreme Court of Florida | 1997 WL 18238
...Larry Sands of Sands, White & Sands, P.A., Daytona Beach, for Respondents. PER CURIAM. We have for review a decision passing upon the following question certified to be of great public importance: IN ORDER TO OBTAIN COVERAGE UNDER THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY PLAN AS PROVIDED IN SECTIONS 766.301-316, FLORIDA STATUTES, MUST AN INFANT SUFFER BOTH SUBSTANTIAL MENTAL AND SUBSTANTIAL PHYSICAL IMPAIRMENT, OR CAN THE DEFINITION BE CONSTRUED TO REQUIRE ONLY SUBSTANTIAL IMPAIRMENT, MENTAL AND/OR PHYSICAL? Florida Birth Related Neurological v....
...PROCEDURAL HISTORY On July 19, 1991, Judith and Fred Birnie, as parents and natural guardians of their son, Eric Birnie, who was born on March 12, 1989, timely filed a petition for compensation for birth-related neurological injuries pursuant to the Florida Birth-Related Neurological Injury Compensation Plan, sections 766.301-766.316, Florida Statutes (1995)....
...at 1019. The NICA Plan was established by the legislature "to provide compensation, on a no-fault basis, for a limited class of catastrophic [birth-related neurological] injuries that result in unusually high costs for custodial care and rehabilitation." §
766.301(2), see also §
766.303(1)....
...Quite to the contrary, reading the phrase as it is plainly written and construing the word "and" in the conjunctive is completely consistent with the legislature's intent to "provide compensation, on a no-fault basis, for a limited class of catastrophic injuries," § 766.301(2), in an effort to stabilize and reduce malpractice insurance premiums for providers of obstetric services in Florida. See § 766.301(c)....
CopyCited 25 times | Published | Supreme Court of Florida | 1997 WL 213718
...endants' negligence during the delivery. The defendants responded with a motion to dismiss, claiming that the Braniffs were limited to an administrative remedy under Florida's Birth-Related Neurological Injury Compensation Plan (NICA plan), sections 766.301-766.316, Florida Statutes (1993)....
...Moreover, our reading of NICA's notice provision will not frustrate the plan's goal of stabilizing the perceived medical malpractice insurance crisis affecting obstetricians by reducing their malpractice insurance premiums. Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan,
668 So.2d 974 (Fla.1996); §
766.301(1), Fla....
...Florida Birth-Related Neurological Injury Compensation Association to be particularly compelling in this regard.
667 So.2d 401, 402-403 (Fla. 4th DCA 1995)(Klein, J., dissenting). His dissenting opinion, which I adopt in full, reads as follows: The very first provision of NICA, section
766.301, Florida Statute (1993) provides: (1) The Legislature makes the following findings: (a) 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 for other physicians....
CopyCited 19 times | Published | Florida 5th District Court of Appeal | 2000 Fla. App. LEXIS 6077, 2000 WL 638929
...The physicians moved to abate the proceedings until a determination was made by the Division of Administrative Hearings as to the compensability of plaintiff's claim under the Plan. Florida's Birth-Related Neurological Injury Compensation Act (sections 766.301-766.316, Florida Statutes) provides a no fault and exclusive remedy for birth-related neurological injuries when the medical service providers elect to participate in the Plan....
...THE EXCLUSIVE JURISDICTION TO DETERMINE WHETHER AN INJURY SUFFERED BY A NEW-BORN INFANT DOES OR DOES NOT CONSTITUTE A "BIRTH-RELATED NEUROLOGICAL INJURY" WITHIN THE MEANING OF THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN, SECTIONS 766.301-.316, FLORIDA STATUTES (1993), SO THAT A CIRCUIT COURT IN A MEDICAL MALPRACTICE ACTION SPECIFICALLY ALLEGING AN INJURY OUTSIDE THE COVERAGE OF THE PLAN MUST AUTOMATICALLY ABATE THAT ACTION WHEN THE PLAN'S IMMUNITY IS RAISED AS AN AFFIRMATIVE...
...en practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery." Id. at 309. *626 In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections
766.301,
766.304, and
766.316, as follows: An act relating to medical malpractice insurance; amending s.
766.301, F.S.; clarifying legislative intent; amending s.
766.304, F.S.; providing exclusive jurisdiction of administrative law judges in claims filed under ss.
766.301-766.316, F.S.; providing a limitation on bringing a civil action under certain circumstances; amending s....
...ating to the no-fault alternative for birth-related neurological injuries; prescribing conditions; providing for applicability of amendments;.... Be It Enacted by the Legislature of the State of Florida: Section 1. Paragraph (d) of subsection (1) of Section 766.301, Florida Statutes, is amended to read: 766.301 Legislative findings and intent. (1) The Legislature makes the following findings: (d) The costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault....
...The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding. Section 2. Section
766.304, Florida Statutes, is amended to read:
766.304 Administrative law judge to determine claims. 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....
...he exhibits introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered....
...the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s.
395.002(8)(b) or when notice is not practicable. Section 6. The amendments to sections
766.301 and
766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth....
...ce principles of the Braniff decision. In McKaughan, the supreme court concluded that the circuit court, as well as the administrative law judge, could determine whether a claim fell under NICA. The legislature countered that conclusion by adding to section
766.301 the provision that "whether such claims are covered by this act must be determined exclusively in an administrative proceeding." Likewise, section
766.304 was amended to provide that "the administrative law judge has exclusive jurisdi...
CopyCited 19 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 40, 2010 Fla. LEXIS 43, 2010 WL 114510
...BACKGROUND The Florida Birth-Related Neurological Injury Compensation Plan ("NICA" or "the plan") was established by the Florida Legislature in 1988 as a means to alleviate the high costs of medical malpractice insurance for physicians practicing obstetrics. § 766.301, Fla....
...ot be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316....
CopyCited 16 times | Published | Supreme Court of Florida | 2011 WL 2637444
...physicians practicing obstetrics. The Legislature found that obstetricians were among the most severely affected by the increasing malpractice insurance premiums and that the costs of birth-related neurological injury claims were particularly high. § 766.301(1), Fla. Stat. (2001). Consequently, the Legislature created the NICA fund to "provide compensation, on a no-fault basis, for a limited class" of birthrelated neurological injuries. § 766.301(2), Fla....
...labor, delivery, or resuscitation in the immediate postdelivery period; and (4) which renders the infant permanently and substantially impaired. The ALJ has exclusive jurisdiction to determine whether a claim is compensable under the NICA Plan. See § 766.301(1)(d), Fla....
...d injury. While it is true that claimants bear the initial burden of proof under section
766.309(1)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law. See §§
766.301,
766.303, Fla. Stat. As the Legislature explained in its statement of findings and intent set forth in section
766.301, physicians practicing obstetrics are the most severely affected by rising costs of medical malpractice insurance, and the costs of a birth-related neurological injury are particularly high....
...t." Id. Thus, under the NICA statutory scheme it is "the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation." § 766.301(2), Fla....
CopyCited 16 times | Published | Supreme Court of Florida
...THE EXCLUSIVE JURISDICTION TO DETERMINE WHETHER AN INJURY SUFFERED BY A NEW-BORN INFANT DOES OR DOES NOT CONSTITUTE A "BIRTH-RELATED NEUROLOGICAL INJURY" WITHIN THE MEANING OF THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN, SECTIONS 766.301-.316, FLORIDA STATUTES (1993), SO THAT A CIRCUIT COURT IN A MEDICAL MALPRACTICE ACTION SPECIFICALLY ALLEGING AN INJURY OUTSIDE THE COVERAGE OF THE PLAN MUST AUTOMATICALLY ABATE THAT ACTION WHEN THE PLAN'S IMMUNITY IS RAISED AS AN AFFIRMATIVE...
...McKaughan,
652 So.2d 852, 863 (Fla. 2d DCA 1995). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We agree with the district court that the Birth-Related Neurological Injury Compensation Plan (hereinafter the NICA plan or the plan), sections
766.301-.316, Florida Statutes (1993), does not vest exclusive jurisdiction in an administrative hearing officer to determine if an injury suffered by a new-born infant is covered by the plan when the plan's provisions are raised as an affirmative defense to a medical malpractice action in circuit court....
...THE NICA PLAN As noted by the district court, the legislature enacted the NICA plan to stabilize a perceived medical malpractice insurance crisis affecting obstetricians and to ensure the continued availability in Florida of essential obstetrical services. § 766.301(1), Fla.Stat. (1993). The plan establishes a no-fault administrative system that provides compensation for an infant who suffers a narrowly defined birth-related neurological injury. Id. § 766.301(2)....
...etermine all claims," reflects the legislature's intent that the administrative officer have exclusive jurisdiction to determine the nature of an infant's injury. This argument is also inconsistent with the plain language of the NICA statute. First, section
766.301(2) expressly states that the NICA plan "shall apply only to birth-related neurological injuries." As is already apparent in this case, the McKaughans assert that their son has not suffered a "birth-related neurological injury," and is not entitled to NICA benefits. Second, section
766.304 provides: The hearing officer shall hear and determine all claims filed pursuant to ss.
766.301-766.316 and shall exercise the full power and authority granted to him in chapter 120, as necessary, to carry out the purposes of such sections....
...NOTES [1] The NICA plan's tolling provision, section
766.306, states: The statute of limitations with respect to any civil action that may be brought by, or on behalf of, an injured infant allegedly arising out of, or related to, a birth-related neurological injury shall be tolled by the filing of a claim in accordance with ss.
766.301-766.316, and the time such claim is pending or is on appeal shall not be computed as part of the period within which such civil action may be brought....
...Of course, if the limitations period has already expired before a claim is filed, the tolling provisions would appear to have no effect. [2] We note, however, that the NICA tolling provision furthers the legislature's stated goal of addressing the insurance crisis brought on by medical malpractice litigation. See § 766.301(2)....
CopyCited 15 times | Published | Supreme Court of Florida
...In each case, the Second District certified conflict with decisions from the Third, Fourth, and Fifth District Courts of Appeal on an issue regarding the subject matter jurisdiction of administrative law judges under the Florida Birth-Related Neurological Injury Compensation Act as found in sections
766.301 through
766.316, Florida Statutes (1997 & Supp.1998) (NICA)....
...d ordered the parents to file a claim for compensation under the injury compensation plan established by section
766.303, Florida Statutes (the NICA Plan). Claims under the NICA Plan are heard and determined administratively as set forth in sections
766.301-.316....
...[8] B. All Children's Hospital 1. The Purpose and Structure of NICA NICA was enacted in 1988 to address the adverse impact that the high cost of medical malpractice insurance premiums was having on the delivery of obstetric services in Florida. See § 766.301, Fla....
...claim under NICA. Id. at 627-28. In reaching this conclusion, the Fifth District first presented the language of the 1998 amendments as follows: In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections
766.301,
766.304, and
766.316, as follows: . . . . Be It Enacted by the Legislature of the State of Florida: Section 1. Paragraph (d) of subsection (1) of Section
766.301, Florida Statutes, is amended to read:
766.301 Legislative findings and intent....
...clusively in an administrative proceeding. Section 2. Section
766.304, Florida Statutes, is amended to read:
766.304 Administrative law judge to determine claims. 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....
...he exhibits introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered....
...the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s.
395.002(8)(b) or when notice is not practicable. Section 6. The amendments to sections
766.301 and
766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth....
...Instead, we agree with Judge Kahn's analysis of this question in Tabb,
880 So.2d 1253, where he wrote: The ALJ's authority derives from section
766.304, Florida Statutes (2001): [17] 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....
...Birth-Related Neuro. Injury Comp. Ass'n v. McKaughan,
668 So.2d 974 (Fla.1996)). Under the version of NICA that is applicable in the instant case, the ALJ possesses exclusive jurisdiction solely to determine whether a claim is compensable under NICA. See §
766.301, Fla....
...rity to determine this issue of whether the notice mandated by section
766.316 was provided. Rather, the 1998 amendments granted an *719 ALJ the exclusive jurisdiction solely to determine whether a birth-related injury is compensable under NICA. See §
766.301, Fla....
...In cases such as the instant one, where the potential claimant wishes to pursue tort remedies and to forgo any compensation from the plan, the task of the ALJ is limited to determining whether the injuries were compensable under section
766.309(1), and thus "covered by [NICA]," in accord with section
766.301(1)(d) (Supp.1998)....
...Such a claim may be filed by any legal representative on behalf of an injured infant." §
766.302(3), Fla. Stat. (1997). [12] The statute of limitations for any civil action that might otherwise be brought for the injury is tolled by the filing of a NICA claim. See section
766.306, Fla. Stat. (1997). [13] See §
766.301(1)(d), Fla. Stat. (Supp.1998) ("The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding."); §
766.304, Fla. Stat. (1997) ("The [ALJ] shall hear and determine all claims filed pursuant to ss.
766.301-766.316.")....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal
...e hearing officer on a supplementary petition for benefits filed by the appellees, Jaimes and Darlene McKaughan (the McKaughans), on behalf of their minor son under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), sections 766.301-.316, Florida Statutes (1993)....
...as designed to prevent. STATUTORY ANALYSIS OF THE PLAN The legislature enacted the Plan to stabilize a perceived medical malpractice insurance crisis affecting obstetricians and to ensure the continued availability of essential obstetrical services. § 766.301(1). The Plan establishes an administrative system that provides compensation on a no-fault basis for an infant who suffers a narrowly-defined birth-related neurological injury. § 766.301(2)....
...THE EXCLUSIVE JURISDICTION TO DETERMINE WHETHER AN INJURY SUFFERED BY A NEW-BORN INFANT DOES OR DOES NOT CONSTITUTE A "BIRTH-RELATED NEUROLOGICAL INJURY" WITHIN THE MEANING OF THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN, SECTIONS 766.301-.316, FLORIDA STATUTES (1993), SO THAT A CIRCUIT COURT IN A MEDICAL MALPRACTICE ACTION SPECIFICALLY ALLEGING AN INJURY OUTSIDE THE COVERAGE OF THE PLAN MUST AUTOMATICALLY ABATE THAT ACTION WHEN THE PLAN'S IMMUNITY IS RAISED AS AN AFFIRMATIVE...
CopyCited 12 times | Published | Florida 3rd District Court of Appeal | 2001 WL 649618
...quash the order denying their motion to abate the action filed in the circuit court until the administrative law judge determined whether the claim was compensable under the Florida Birth-Related Neurological Injury Compensation Act [NICA], sections
766.301-.316, Florida Statutes (Supp.1998). We grant the petition. Pursuant to sections
766.301(1)(d) and
766.304, Florida Statutes (Supp.1998), [1] *1000 an administrative law judge, not the circuit court, has exclusive jurisdiction to determine whether a claim filed under NICA is compensable....
...Accordingly, we grant the petition for writ of certiorari quashing the order denying the motion to abate. We remind the trial court that it was obligated to follow O'Leary because neither the Supreme Court of Florida nor this Court had decided this precise issue subsequent to the 1998 amendments of sections
766.301(1)(d) and
766.304....
...Anderson,
746 So.2d 525, 526 (Fla. 2d DCA 1999), review granted,
760 So.2d 945 (Fla.2000). As a result of our decision, we do not address the alternative petition filed by the petitioners. Petition for writ of certiorari granted. NOTES [1] In 1998, sections
766.301(1)(d) and
766.304, Ch. 98.113, were amended. Section
766.301(1)(d) was amended to add the following language: "The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding." Section
766.304 was amended, in part, to add the following lan...
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2004 WL 57230
...BACKGROUND A. Statutory Framework The plan was established by the Florida Birth-Related Neurological Injury Compensation Act (NICA), which was originally enacted pursuant to chapter 88-1, Laws of Florida, and became effective on February 8, 1988. See §§
766.301-.316, Fla. Stat. (Supp.1988). The version of the plan applicable here is found in sections
766.301 through
766.316, Florida Statutes (1997), and in amendments to the 1997 provisions *452 as set forth in sections
766.301 and
766.304, Florida Statutes (Supp.1998). [1] NICA was created based on a legislative determination that "[t]he costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault." §
766.301(1)(d)....
...ot be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316....
...f an ALJ. This question was subsequently addressed by the legislature with the enactment of chapter 98-113, Laws of Florida. In that legislation, language was added to NICA to clarify the role of ALJs in adjudicating NICA claims. The 1997 version of section 766.301(1)(d), which set forth one of the many legislative reasons for NICA, was amended by the addition of this statement: "The issue of whether such [birth-related neurological injury] claims are covered by this act must be determined exclusively in an administrative *455 proceeding." § 766.30(1)(d), Fla....
...In cases such as the instant one, where the potential claimant wishes to pursue tort remedies and to forgo any compensation from the plan, the task of the ALJ is limited to determining whether the injuries were compensable under section
766.309(1), and thus "covered by [NICA]," in accord with section
766.301(1)(d) (Supp.1998)....
...pensability as required by law and in conformance with this opinion. Reversed and remanded; conflict certified. NORTHCUTT and STRINGER, JJ., concur. NOTES [1] As will be discussed in more detail later in this opinion, the 1998 amendments to sections
766.301 and
766.304 added language emphasizing that a determination as to the compensability of a NICA claim is a matter within the exclusive jurisdiction of an administrative law judge....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2002 WL 385000
...injury was compensable under the Plan. ANALYSIS The Florida Birth-Related Neurological Injury Compensation Plan ("the Plan") was established by our Legislature to provide no-fault compensation for birthrelated neurological injuries to infants. See §§ 766.301-316, Fla....
...Ass'n v. McKaughan,
668 So.2d 974, 978 (Fla.1996). The Legislature's intent was "to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation." §
766.301(2), Fla....
CopyCited 10 times | Published | Florida 2nd District Court of Appeal | 2001 WL 220009
...The legislature created this plan to protect physicians from the skyrocketing malpractice insurance premiums paid by obstetricians and to assure that Floridians would have an adequate supply of these essential health services. See ch. 88-1, § 60, Laws of Fla.; § 766.301(1)(a), (c), Fla....
CopyCited 10 times | Published | Florida 1st District Court of Appeal | 2004 WL 1920005
...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)....
...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....
...hat an ALJ has jurisdiction to determine whether the notice requirement was satisfied in a particular case. Appellant's preferred result would require a circuit court proceeding any time notice becomes an issue, contrary to the terms of the law. See § 766.301(1)(d), Fla....
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 1992 WL 191597
...from the essential requirements of law. Lapidus v. Arlen Beach Condo. Ass'n, Inc.,
394 So.2d 1102 (Fla. 3d DCA 1981). Petitioners moved to dismiss the malpractice action alleging that the Florida Birth-Related Neurological Injury Compensation Plan, section
766.301 et....
CopyCited 7 times | Published | Florida 1st District Court of Appeal | 2002 WL 31641524
...te surgical delivery and that the defendants failed to perform an appropriate and timely cesarean section. The defendants moved to abate the civil action pending the administrative determination of the claim under the NICA plan, codified in sections 766.301-766.316, Florida Statutes....
...(1997); see also Nagy,
813 So.2d at 159. The NICA plan was designed by the Legislature "to provide compensation, on a no-fault basis, for a limited class of catastrophic [birth-related neurological] injuries that result in unusually high costs for custodial care and rehabilitation." §
766.301(2), Fla....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2862055
...The Ruiz family also alleged that proper NICA Plan notice was not given by the University physicians or the hospital as required by section
766.316, Florida Statutes (1998). In response, the hospital and the University filed motions to dismiss or abate, contending that the claim was governed by NICA, sections
766.301-.316, Florida Statutes (1998), and that the Ruiz family *868 should bring the claim under NICA....
...ompetent substantial evidence. See §
120.68(7), Fla. Stat. (1998); Id. The issue on appeal is whether the University physicians properly complied with the notice requirement pursuant to section
766.316. The legislative goal behind enacting sections
766.301-.316 was to provide a no-fault alternative remedy for a "limited class of catastrophic [birth-related neurological] injuries that result in unusually high costs for custodial care and rehabilitation." See §
766.301(2), Fla....
...e NICA Plan notice. We affirm and certify direct conflict with the Fifth District Court of Appeal in Orlando Regional Healthcare System, Inc. v. Alexander,
909 So.2d 582 (Fla. 5th DCA 2005). Affirmed and direct conflict certified. NOTES [1] Sections
766.301-.316, Florida Statutes (1998) establish NICA, a limited no-fault administrative compensation system for some birth-related neurological injuries pursuant to section
766.302(2)....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2008 WL 140806
...Ass'n,
832 So.2d 188 (Fla. 1st DCA 2002). The legislative intent in developing the Plan was "to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation." §
766.301(2)....
...Our conclusion is consistent with the legislative intent of the statute. The legislature specifically found that the problem that the Plan was to address was the crisis in medical malpractice insurance premiums for physicians practicing obstetrics. See § 766.301(1)(a)....
...ail himself of the exclusivity provision of the Plan would at the same time be forced to carry costly malpractice insurance to protect against a hospital's failure to provide notice. This would be contrary to the legislative purpose of the Plan. See § 766.301(1)(c) ("Because obstetric services are essential, it is incumbent upon the Legislature to provide a plan designed to result in the stabilization and reduction of malpractice insurance premiums for providers of such services in Florida.")....
...Y THE NOTICE REQUIREMENTS OF SECTION
766.316, FLORIDA STATUTES (1997), IF THE HOSPITAL WHERE THE DELIVERY TAKES PLACE FAILS TO PROVIDE NOTICE OF ANY KIND? Reversed and remanded; question certified. NORTHCUTT, C.J., and KELLY, J., Concur. NOTES [1] §§
766.301-.316, Fla....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2003 WL 327530
...John and Rebecca Romine, individually and as parents and next friends of Loren Romine, a minor, appeal a final administrative order dismissing with prejudice their petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan ("NICA"), sections 766.301-.316, Florida Statutes (1998)....
...[4] See Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass'n,
813 So.2d 155, 159 (Fla. 4th DCA 2002). *151 NICA was established by the Legislature to provide no-fault compensation for certain infants who sustained birth-related neurological injuries. See §§
766.301-.316, Fla....
...In an effort to prevent the recurrence of the Gilbert situation, the Legislature amended section
766.304 in 1998 to preclude both a civil and a NICA claim recovery: 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....
...he exhibits introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered....
...98-113, § 1, at 524, Laws of Fla. (emphasis added). [5] In doing so, the Legislature *153 expressed its clear intent that the amendment be retroactively applied to any NICA claim filed on or after July 1, 1998, regardless of when the child was born: Section 6. The amendments to section
766.301 and
766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed before or after that date and to that extent shall apply retroactively regardless of the date of birth....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 1995 WL 44539
...viously occurring on a state-wide basis, any perceived mootness would still not divest us of the jurisdictional authority to provide future guidance as to the basic constitutionality of the statute. See Holly v. Auld,
450 So.2d 217 (Fla. 1984). [14] Section
766.301, Florida Statutes (1993), for example, sets forth extensive findings justifying the public need for the establishment of an exclusive administrative remedial process for the compensation of birth-related neurological injuries on a no-fault basis in a limited class of cases....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2005 WL 2104317
...In all other respects, we affirm the ALJ's order. We begin by briefly summarizing the relevant law. NICA provides an exclusive remedy in the form of compensation for certain statutorily-defined birth-related neurological injuries on a no-fault basis. Section 766.301 of the Florida Statutes articulates the Legislature's intent behind enacting NICA: 766.301....
...Legislative findings and intent * * * * * * (2) It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries. §
766.301(2), Fla. Stat. (2003)(emphasis added). The term "birth-related neurological injuries" is defined as follows:
766.302. Definitions; ss.
766.301-766.316 As used in ss.
766.301-766.316, the term: * * * * * * (2) "Birth-related neurological injury" means 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 we...
...abnormality. §
766.302(2), Fla. Stat. (2003). Section
766.304 outlines the exclusive nature of NICA's relief:
766.304. Administrative law judge to determine claims 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....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 31 Fla. L. Weekly Fed. D 1788
...Applying the reasoning set forth in Turner and Hill, we conclude that certiorari review is appropriate in this case so as to effectuate the intent of the NICA legislation, which is to establish a limited system of compensation irrespective of fault. See § 766.301, Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 8763, 2010 WL 2425998
...We do not believe that the supreme court's equal protection analysis in St. Mary's Hospital applies to section
766.31(1)(b)1. As NICA correctly notes, the statute at issue in St. Mary's Hospital dealt with fault-based damages, not a no-fault compensation scheme as provided for in section
766.31(1)(b)1. See §
766.301(2), Fla....
...Assuming discrimination exists, the Samples argue that the parental cap bears no rational relationship to the Plan's stated goals of reducing medical malpractice insurance premiums by providing no-fault compensation for a limited class of high-cost catastrophic injuries. §§ 766.301(1)(c) and (2), Fla....
...Despite this low standard, NICA notes that the Plan expressly evidences a need to limit awards, including the parental award, to ensure actuarial soundness so that children may be compensated and new claims may be accepted. The Legislature expressly stated that it intended to provide a " limited system of compensation...." § 766.301(d), Fla....
...xclusive remedy. §
766.314(9)(d), Fla. Stat. (2007). Thus, maintaining actuarial soundness is an express goal of the program and is important to achieving the other goals of the program. Limiting parental compensation to $100,000, as required under section
766.301(1)(b)1., instead of judicially authorizing up to $200,000, is rationally related to actuarial soundness the less money NICA is required to pay, the easier it will be for the Plan to remain actuarially sound....
...Accordingly, we conclude the Plan provides both a reasonable alternative remedy and a commensurate benefit. Regarding the second Kluger exception, the Samples in effect concede that the Legislature expressly demonstrated an overwhelming public necessity for the plan in section 766.301(1)(c), Florida Statutes (2007)....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2006 WL 1649027
...(2005)(stating that all evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible in administrative proceedings, whether or not such evidence would be admissible in a trial in the courts of Florida). AFFIRMED. PLEUS, C.J., and SAWAYA, J., concur. NOTES [1] Section
766.301 through section
766.316 of the Florida Statutes (2004) sets forth the provisions of Florida's Birth-Related Neurological Injury Compensation Act.
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 2015 Fla. App. LEXIS 7980, 2015 WL 3390092
...om the trial
court’s order denying its motion for summary judgment on the plaintiffs’ claims
for medical malpractice based on UM’s contention that it is entitled to immunity
from suit under Florida’s Birth-Related Neurological Injury Act, § 766.301, Fla.
Stat., et seq....
...a no-fault
alternative remedy for a ‘limited class of catastrophic [birth-related neurological]
injuries that result in unusually high costs for custodial care and rehabilitation.’”
Ruiz,
916 So. 2d at 868 (alteration in original) (quoting §
766.301(2), Fla....
...In passing NICA, the legislature sought to shelter medical personnel
providing obstetrical services from the increasingly high costs of medical
malpractice insurance, particularly given the likelihood of suit and the magnitude
of potential damages when a baby is delivered with a neurological injury. §
766.301, Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2006 WL 348718
...Ortiz's labor, resulting in their child being born with brain damage. Northwest filed a motion to abate the action on the ground that the Ortizes were required to seek a remedy only under the Florida Birth-Related Neurological Injury Compensation Plan ("NICA"), sections
766.301 to
766.316, Florida Statutes....
...ry. Therefore it failed to comply with the notice provisions of the plan. Northwest and Dr. De Souza appeal this judgment. The legislature passed NICA in order to help "stabiliz[e] and reduc[e] malpractice insurance premiums" faced by obstetricians. § 766.301(1)(c), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1994 WL 45168
...in the amount of $90,000. We reverse. Flor Carreras' daughter, Maria Carreras, was born with severe brain damage. Ms. Carreras' counsel filed a petition for compensation under the Florida Birth-Related Neurological Injury Compensation Plan, sections 766.301-.316, Florida Statutes (1991)....
...See §
766.302(2), Fla. Stat. (1991). If the infant's injury satisfies the statutory definition, then the infant qualifies for financial benefits. Id. §§
766.309,
766.31. The claimant need not establish any fault on the part of a health care provider. Id. §§
766.301(2),
766.309....
...ipating physician at the birth, the judge of compensation claims shall make an award providing compensation for the following items relative to such injury: * * * *1106 (c) Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the judge of compensation claims....
...There, the court looked to the text of the applicable statute and found that the statutory language did not support such an award. Id. at 831-833. Similarly, in the present case the statute provides for attorney's fees "incurred in connection with the filing of a claim under ss. 766.301-766.316......
...lts obtained ... . R.Reg.Fla.Bar 4-1.5(b)(2), (4) (emphasis added). It is reasonably clear that the legislature viewed NICA as a relatively simple no-fault process for the care of infants with very severe, very expensive, permanent disabilities. See § 766.301, Fla....
...approximately 40 percent of the compensatory award. NICA next contends that the amount of hours approved for pre-petition work was excessive. We agree. The statute authorizes attorney's fees "incurred in connection with the filing of a claim under ss. 766.301-766.316......
...The order under review is reversed and the cause remanded for further proceedings consistent herewith. NOTES [1] See §
766.302(1), Fla. Stat. (1991). [2] At the time of the proceedings below, the statute provided that "[t]he judge of compensation claims shall hear and determine all claims filed pursuant to ss.
766.301-766.316......
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2004 WL 690565
...of the Division of Administrative Hearings (DOAH), which held that because certain of the health care providers failed to give sufficient notice of the applicability of the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), see § 766.301.316, Fla....
...In response to the *688 complaint, the Hospital and McCall raised the statutory immunity of the Plan as an affirmative defense and requested that the suit be abated until the ALJ determined whether the birth-related injuries were covered by the Plan. Relying on the interpretation of section 766.301(1)(d), provided in O'Leary v....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2006 WL 931588
...McKaughan,
668 So.2d 974, 978 (Fla. 1996). In 1998, the legislature amended the Act, adding the following language: "The issue of whether such [birth-related neurological injury] claims are covered by this act must be determined exclusively in *985 an administrative proceeding." §
766.301(1)(d), Fla....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1995 WL 96392
...rum in which to determine whether birth-related injuries were neurological in nature and therefore subject to the exclusive administrative procedures provided by the Florida Birth-Related Neurological Injury Compensation Association (NICA), sections 766.301-.316, Florida Statutes (1993)....
...to resolve the issue raised by the defendants as to the nature of the injuries. NICA provides compensation, on a no-fault basis, for a limited class of catastrophic injuries which result in unusually high costs for custodial care and rehabilitation. § 766.301(2), Fla....
...XCLUSIVE JURISDICTION TO DETERMINE WHETHER AN INJURY SUFFERED BY A NEW-BORN INFANT DOES OR DOES NOT CONSTITUTE A "BIRTH-RELATED NEUROLOGICAL *494 INJURY" WITHIN THE MEANING OF THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN, SECTIONS 766.301-316, FLORIDA STATUTES (1993), SO THAT A CIRCUIT COURT IN A MEDICAL MALPRACTICE ACTION SPECIFICALLY ALLEGING AN INJURY OUTSIDE THE COVERAGE OF THE PLAN MUST AUTOMATICALLY ABATE THAT ACTION WHEN THE PLAN'S IMMUNITY IS RAISED AS AN AFFIRMATIVE D...
CopyCited 2 times | Published | Florida 2nd District Court of Appeal
...d at 1066, to the extent that these opinions hold that the ALJ has the authority to determine issues related to notice in NICA proceedings. *639 Reversed and remanded with instructions; conflict certified. NORTHCUTT and KELLY, JJ., Concur. NOTES [1] § 766.301-.316, Fla....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1995 WL 757878
...COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS INVOKING NICA AS THE PATIENT'S EXCLUSIVE REMEDY? Reversed. GUNTHER, C.J., and DELL, J., concur. KLEIN, J., dissents with opinion. KLEIN, Judge, dissenting. The very first provision of NICA, section 766.301, Florida Statute (1993) provides: (1) The Legislature makes the following findings: (a) Physicians practicing obstetrics are high-risk medial specialists for whom malpractice insurance premiums are very costly, and recent increases in such premiums have been greater for such physicians than for other physicians....
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1995 WL 612957
...We find, however, that the statute, the literal language of which is in conflict with the stated legislative policy of the act, should be construed so as to give full effect to the legislative policy. That policy is clearly stated by the legislature as follows: 766.301 Legislative findings and intent....
...Because we realize the possible impact of this decision on the fund and on pipeline cases, we stay our mandate and certify the following question to the Florida Supreme Court as one of great public importance: IN ORDER TO OBTAIN COVERAGE UNDER THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY PLAN AS PROVIDED IN SECTIONS 766.301-316, FLORIDA STATUTES, MUST AN INFANT SUFFER BOTH SUBSTANTIAL MENTAL AND SUBSTANTIAL PHYSICAL IMPAIRMENT, OR CAN THE DEFINITION BE CONSTRUED TO REQUIRE ONLY SUBSTANTIAL IMPAIRMENT, MENTAL AND/OR PHYSICAL? AFFIRMED. DAUKSCH and ANTOON, JJ., concur. ON MOTION FOR REHEARING Appellant, Florida Birth-Related Neurological Injury Compensation Association (NICA) urges in its motion for rehearing that we overlooked the legislative admonition in section 766.301(2), Florida Statutes, that it intended that NICA only fund "a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation....
...drugs at birth. Because it is only the birth-related neurological injuries that normally pose a high risk to "physicians practicing obstetrics," this interpretation is most consistent with the legislative finding and intent so clearly enunciated in section 766.301....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1996 WL 710800
...judgment which was based on collateral estoppel. We dismiss because petitioner will have an adequate remedy on appeal. Plaintiffs filed a claim for compensation with the Florida Birth-Related Neurological Injury Compensation Association pursuant to section 766.301, Florida Statutes (1993)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal
...was placed upon the general public. They also alleged that the statute contains an unlawful delegation of the taxing authority. This appeal is from a judgment in favor of appellees on all issues. We affirm. Chapter 88-1, Section 60, now codified as Section 766.301, Florida Statutes (1989), sets forth findings in support of the legislation as follows: 766.301 Legislative findings and intent (1) The Legislature makes the following findings: (a) 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 for other physicians....
CopyCited 1 times | Published | Supreme Court of Florida | 2007 Fla. LEXIS 2
...In each case, the Second District certified conflict with decisions from the Third, Fourth, and Fifth District Courts of Appeal on an issue regarding the subject matter jurisdiction of administrative law judges under the Florida Birth-Related Neurological Injury Compensation Act as found in sections
766.301 through
766.316, Florida Statutes (1997 & Supp.1998) (NICA)....
...d ordered the parents to file a claim for compensation under the injury compensation plan established by section
766.303, Florida Statutes (the NICA Plan). Claims under the NICA Plan are heard and determined administratively as set forth in sections
766.301-.316....
...8 B. All Children’s Hospital I. The Purpose and Structure of NICA NICA was enacted in 1988 to address the adverse impact that the high cost of medical malpractice insurance premiums was having on the delivery of obstetric services in Florida. See § 766.301, Fla....
...laim under NICA. Id. at 627-28 . In reaching this conclusion, the Fifth District first presented the language of the 1998 amendments as follows: In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections
766.301,
766.304, and
766.316, as follows: [[Image here]] Be It Enacted by the Legislature of the State of Florida: Section 1. Paragraph (d) of subsection (1) of Section
766.301, Florida Statutes, is amended to read:
766.301 Legislative findings and intent.— (1) The Legislature makes the following findings: (d) The costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault....
...clusively in an administrative proceeding. Section 2. Section
766.304, Florida Statutes, is amended to read:
766.304 Administrative law judge to determine claims.— 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....
...he exhibits introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered....
...the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s.
395.002(8)(b) or when notice is not practicable. Section 6. The amendments to sections
766.301 and
766.304, Florida Statutes, shall take effect July 1,1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth....
...Such a claim may be filed by any legal representative *711 on behalf of an injured infant.” §
766.302(3), Fla. Stat. (1997). . The statute of limitations for any civil action that might otherwise be brought for the injury is tolled by the filing of a NICA claim. See section
766.306, Fla. Stat. (1997). . See §
766.301(l)(d), Fla. Stat. (Supp.1998) ("The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.”); §
766.304, Fla. Stat. (1997) ("The [ALJ] shall hear and determine all claims filed pursuant to ss.
766.301-766.316.”)....
CopyCited 1 times | Published | Supreme Court of Florida | 21 Fla. L. Weekly Supp. 91, 1996 Fla. LEXIS 277
in Florida of essential obstetrical services. §
766.301(1), Fla.Stat. (1993). The plan establishes a no-fault
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 12744, 2009 WL 2602286
...Vincent's, and fourteen other defendants. The circuit court proceedings were abated for a determination by DOAH as to whether the infant's injuries were covered by the Florida Birth-Related Neurological Injury Compensation Plan (hereafter, the NICA Plan), section 766.301, et seq., Florida Statutes (2001)....
...Birth-Related Neurological Injury Comp. Ass'n,
665 So.2d 1082, 1084 (Fla. 3d DCA 1995). The Rebuttal Presumption under Section
766.309(1)(a) The NICA Plan was established by the Legislature to provide no-fault compensation for birth-related neurological injuries to infants. See §§
766.301-.316, Fla....
...d injury. While it is true that claimants bear the initial burden of proof under section
766.309(1)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law. See §§
766.301,
766.303, Fla. Stat. As the Legislature explained in its statement of findings and intent set forth in section
766.301, physicians practicing obstetrics are the most severely affected by rising costs of medical malpractice insurance, and the costs of a birth-related neurological injury are particularly high....
...Id. Thus, under the NICA statutory scheme it is "the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation." [2] § 766.301(2), Fla....
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 13846, 2004 WL 2101891
...d NICA benefits, requiring them to elect a remedy. We affirm this decision. Florida’s Birth-Related Neurological Injury Compensation Plan In 1988, the Florida Legislature created the Florida Birth-Related Neurological Injury Compensation Plan. See § 766.301(1), Fla....
...vil lawsuit. See
842 So.2d at 151 . That is what the Gugel-mins attempt to do. Accordingly, the order on appeal is AFFIRMED. STONE and WARNER, JJ., concur. . The current version of the statute provides that "[a]n award may not be made or paid under ss.
766.301-766.316 if the claimant recovers under a settlement or a final judgment is entered in a civil action.” §
766.304, Fla....
CopyPublished | Florida 1st District Court of Appeal
...ot be foreclosed
where there is clear and convincing evidence of bad faith or
malicious purpose or willful and wanton disregard of human
rights, safety, or property, provided that such suit is filed prior to
and in lieu of payment of an award under ss.
766.301-766.316.”
5
(Emphasis added). The ALJ has “exclusive jurisdiction to
determine whether a claim filed under NICA is compensable.”
§§
766.301(1)(d),
766.304, and
766.311(1), Fla....
...9.330 or
9.331.
_____________________________
OSTERHAUS, C.J., concurring in result.
I concur with Judge Lewis’s decision to affirm here. The
administrative law judge rejected Appellant’s claim under the
Birth-Related Neurological Injury Compensation Plan, § 766.301,
Fla....
CopyPublished | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 317, 2013 WL 2096260, 2013 Fla. LEXIS 1001
...nable alternative remedy. As stated above, the express purpose of the Plan is “to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation.” § 766.301(2), Fla....
CopyPublished | District Court of Appeal of Florida | 1990 Fla. App. LEXIS 4525, 1990 WL 85455
...was placed upon the general public. They also alleged that the statute contains an unlawful delegation of the taxing authority. This appeal is from a judgment in favor of appellees on all issues. We affirm. Chapter 88-1, Section 60, now codified as Section 766.301, Florida Statutes (1989), sets forth findings in support of the legislation as follows: 766.301 Legislative findings and intent (1) The Legislature makes the following findings: (a)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 for other physicians....
CopyPublished | Florida 3rd District Court of Appeal | 2016 Fla. App. LEXIS 11076
...(NICA) was created by the Florida Legislature in 1988. NICA is a statutory
organization that manages the Florida Birth Related Neurological Injury
Compensation Plan ("Plan") used to pay for the care of infants born with certain
neurological injuries. §766.301(2), Fla....
CopyPublished | Florida 5th District Court of Appeal | 2004 WL 19485
...for ALJs to apply in analyzing evidence of mental impairment. This framework is consistent with the purpose of NICA to provide a limited system of compensation irrespective of fault for those infants which suffer birth-related neurological injuries. § 766.301, Fla....
...§ 766.308, which established and provided for the medical advisory panel, was part of the NICA statute until its repeal in July 2001. [1] Section
766.302, Florida Statutes, refers to the Plan as established under section
766.303. The statutory provisions that I refer to are found in sections
766.301-.316, Florida Statutes (2002). [2] The provisions of chapter 120, Florida Statutes, are made applicable by section
766.304, Florida Statutes, which provides: 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. [1] To quote Dickens' character, Mr. Bumble, commenting on the law: if that be the law, "the law is an ass-an idiot ..." Charles Dickens, Oliver Twist, Ch. 51. [1] 766.301 Legislative findings and intent. (1) The Legislature makes the following findings: (a) 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 for other physicians....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 1081, 2011 WL 335401
...her a NICA notice was given. The trial court accepted the Gwyns' argument and denied the motion. NICA was enacted by the Florida Legislature with the intent to stabilize and reduce malpractice insurance premiums for physicians practicing obstetrics. § 766.301(1)(c)....
...Financing for the fund was provided through assessments made against hospitals and physicians ( see section
766.314) and limitations were placed on amounts recoverable by claimants ( see section
766.31). In essence, NICA was intended to establish a limited system of compensation irrespective of fault. See §
766.301(1)(d)....
...be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or a willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316....
...As a matter of law, they have no NICA claim because their claim does not fall within the scope of the Act. Their only available remedy is through the courts. Petition for Writ of Certiorari is hereby DENIED. MONACO, C.J. and JACOBUS, J., concur. NOTES [1] §§ 766.301-.316, Fla....
CopyPublished | Florida 3rd District Court of Appeal
...court’s order denying its motion for summary judgment on the plaintiff–
petitioners’ claims for medical malpractice based on UM’s contention that it is
entitled to immunity from suit under Florida’s Birth-Related Neurological Injury
Act, § 766.301, Fla....
...alternative remedy for a ‘limited class of catastrophic [birth-related neurological]
injuries that result in unusually high costs for custodial care and rehabilitation.’”
7
Ruiz,
916 So. 2d at 868 (alteration in original) (quoting §
766.301(2), Fla....
...In passing NICA, the legislature sought to shelter medical personnel
providing obstetrical services from the increasingly high costs of medical
malpractice insurance, particularly given the likelihood of suit and the magnitude
of potential damages when a baby is delivered with a neurological injury. §
766.301, Fla....
CopyPublished | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 19341
...laims with NICA to receive payment for providing medically necessary and reasonable custodial care benefits. A class member who disagreed with NICA’s determination could file a claim with the Florida Division of Administrative Hearings pursuant to § 766.301-766.316, Elori-da Statutes....
...eement—filed “a claim with [DOAH] ... using a petition to determine benefits form” posted on NICA’s website. The petition was then resolved by an ALJ in an administrative proceeding pursuant to §
766.31. The process the parties adopted from §
766.301-766.316 to resolve petitions for custodial care benefits addresses attorneys’ fees and costs explicitly in §
766.31, the statute identified on the claim form submitted by Appellants....
...Should there be a final determination of compensability, and the claimants accept an award under this section, the claimants shall not be liable for any expenses, including attorney’s fees, incurred in connection with the filing of a claim under ss. 766.301-766.316 other than those expenses awarded under this section....
CopyPublished | Florida 1st District Court of Appeal
legal representatives to have suffered a BRNI. §
766.301(2), Fla. Stat. (“It is the intent of the Legislature
CopyPublished | Florida 1st District Court of Appeal
...ture established “a limited
system of compensation irrespective of fault” by creating the
“Plan” to financially cover “a limited class of catastrophic injuries
that result in unusually high costs for custodial care and
rehabilitation.” §§
766.301,
766.303(1), (2), Fla....
...Stat.
The whole point of the Plan is to facilitate—in lieu of a judicial
proceeding—no-fault, yet exclusive, compensation from state
funds for the benefit of those children claimed by their legal
representatives to have suffered a BRNI. § 766.301(2), Fla....
...taking a voluntary dismissal of their “claim.” Absent a claim, there
was no authority for the ALJ to issue an order on compensability.
See §
766.304, Fla. Stat. (“The administrative law judge shall hear
and determine all claims filed pursuant to ss.
766.301-766.316 ....
...in 1998”
with the enactment of chapter 98-113, Laws of Florida, which
NICA claims amended the Plan’s statutory provisions in response
to Florida Birth-Related Neurological Injury Compensation
Association v. McKaughan. The law added a sentence to section
766.301(1)(d), Florida Statutes, that provided: “The issue of
whether [BRNI] claims are covered by this act must be determined
exclusively in an administrative proceeding.” Ch....
...officer “hear and determine all claims”—meant that the officer had
“exclusive jurisdiction to determine the nature of an infant’s
injury.” Id. (emphasis supplied). In rejecting the argument, the
court initially looked to a fourth provision, section 766.301(2),
which expressly makes the Plan applicable “only to birth-related
neurological injuries” (that is, BRNIs); and noted that the parents
had already asserted their child did not suffer a BRNI and was not
entitled to benefits under the Plan....
...The court also considered the
portion of section
766.304 providing that the hearing officer/ALJ
may “exercise the full power and authority granted to [her or] him
in chapter 120 [the Administrative Procedure Act], as necessary,
to carry out the purposes of [sections
766.301 through
766.316]”—
that is, of the Plan....
...
766.305(1) is filed alleging that the infant has suffered a NICA
injury.” Id. (first emphasis supplied).
Pulling this all together, we see the supreme court relied on a
close textual treatment of the four statutory provisions just
mentioned, sections
766.301(2),
766.302(3),
766.304, and
766.305(1); and its conclusion that these provisions limit the Plan
and the ALJ’s authority thereunder to “claims” by parents
affirmatively seeking compensation; to hold that an
administrative hearing officer/ALJ does not have “exclusive
jurisdiction ....
...asserted as an affirmative defense, and we do not read the 1998
amendments as attempting to do so. 6 Indeed, the 1998
amendments, remarkably, left untouched the exact text on which
the McKaughan Court relied for its holding: all four provisions
(sections
766.301(2),
766.302(3),
766.304, and
766.305(1)) limiting
the Plan’s application to claims for compensation based on a BRNI.
6 To be sure, we are not passing on the constitutionality of any
of these 1998 amendments. We merely are conducting a close
textual treatment of those amendments within the context of what
otherwise would be constitutionally permissible.
15
For instance, the addition to section
766.301(1)(d) refers to a birth-
related neurological injury claim and the issue whether it is
covered under the Plan, which “must be determined exclusively in
an administrative proceeding.” The addition to section
766.304
also speaks in...
...The Legislature
established a fund with treasury dollars and created a public right
26
to compensation from that fund for those infants suffering “a
limited class of” statutorily defined, “catastrophic” BRNIs.
§§
766.301(2),
766.302(2), (3),
766.303(1),
766.305, Fla....
CopyPublished | Florida 1st District Court of Appeal
...the Legislature established “a limited system of compensation
irrespective of fault” by creating the “Plan” to financially cover “a
limited class of catastrophic injuries that result in unusually high
costs for custodial care and rehabilitation.” §§
766.301(1)(d), (2),
766.303(1), (2), Fla....
...Stat.
The whole point of the Plan is to facilitate—in lieu of a judicial
proceeding—no-fault, yet exclusive, compensation from state
funds for the benefit of those children claimed by their legal
representatives to have suffered a BRNI. § 766.301(2), Fla....
...ng a
voluntary dismissal of their “claim.” Absent a claim, there was no
authority for the ALJ to issue an order on compensability. See
§
766.304, Fla. Stat. (“The administrative law judge shall hear and
determine all claims filed pursuant to ss.
766.301-766.316 ....
...in 1998”
with the enactment of chapter 98-113, Laws of Florida, which
NICA claims amended the Plan’s statutory provisions in response
to Florida Birth-Related Neurological Injury Compensation
Association v. McKaughan. The law added a sentence to section
766.301(1)(d), Florida Statutes, that provided: “The issue of
whether [BRNI] claims are covered by this act must be determined
exclusively in an administrative proceeding.” Ch....
...officer “hear and determine all claims”—meant that the officer had
“exclusive jurisdiction to determine the nature of an infant’s
injury.” Id. (emphases supplied). In rejecting the argument, the
court initially looked to a fourth provision, section 766.301(2),
which expressly makes the Plan applicable “only to birth-related
neurological injuries” (that is, BRNIs); and noted that the parents
had already asserted their child did not suffer a BRNI and was not
entitled to benefits under the Plan....
...The court also considered
the portion of section
766.304 providing that the hearing
officer/ALJ may “exercise the full power and authority granted to
[her or] him in chapter 120 [the Administrative Procedure Act], as
necessary, to carry out the purposes of [sections
766.301 through
766.316]”—that is, of the Plan....
...section
766.305(1) is filed alleging that the infant has suffered a
NICA injury.” Id. (first emphasis supplied).
Pulling this all together, the reader can see that the supreme
court relied on a close textual treatment of the four statutory
provisions just mentioned, sections
766.301(2),
766.302(3),
766.304, and
766.305(1)—and its conclusion that these provisions
limit the Plan and the ALJ’s authority thereunder to “claims” by
parents affirmatively seeking compensation—to hold that an
administrative hearing officer/ALJ does not have “exclusive
jurisdiction ....
...remedy is asserted as an affirmative defense, so the 1998
amendments should not be read as attempting to do so. 7 Indeed,
the 1998 amendments, remarkably, left untouched the exact text
on which the McKaughan Court relied for its holding: all four
provisions (sections
766.301(2),
766.302(3),
766.304, and
766.305(1)) limiting the Plan’s application to claims for
compensation based on a BRNI. For instance, the addition to
section
766.301(1)(d) refers to a BRNI claim and the issue of
whether it is covered under the Plan, which “must be determined
exclusively in an administrative proceeding.” The addition to
section
766.304 also speaks in terms of “a claim filed u...
...adjudicate claims for enforcement of that right. The Legislature
established a fund with treasury dollars and created a public right
to compensation from that fund for those infants suffering “a
limited class of” statutorily defined, “catastrophic” BRNIs.
§§
766.301(2),
766.302(2), (3),
766.303(1),
766.305, Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 1448963, 2012 Fla. App. LEXIS 6544
...y Stephanie. Appellants moved to dismiss Exposito’s claims on the following grounds: (1) Baby Stephanie’s “injuries may fall within the purview of the Florida Birth-Related Neurological Injury Compensation Plan (“the Plan”) as set forth in Section 766.301 et seq., Florida Statutes”; (2) The “issue of whether a claim is compensable under the Plan must be determined exclusively by an administrative law judge in an administrative proceeding, not by a court of general jurisdiction”;...
...continue a civil action, as such would violate the exclusiveness of remedy provisions of Section
766.303, Florida Statutes.” On November 22, 2010, in response to the motion to dismiss, Expósito filed with DOAH a petition for benefits pursuant to section
766.301 et seq., Florida Statutes (2010), a statutory scheme known as the “NICA Plan.” In order to place into proper context the administrative petition for benefits and the subsequent administrative proceedings, we first explain the NICA Plan and the relevant statutory provisions....
...eviate the high costs of medical malpractice insurance for physicians prac *806 ticing obstetrics.” Bennett v. St. Vincent’s Med. Ctr.,
71 So.3d 828, 836 (Fla.2011). The first subsection of this statutory-scheme expresses the legislative intent: Section
766.301....
...(2) It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries. § 766.301, Fla....
...” *807 Section
766.303(2), Fla. Stat. (2010) (emphasis added). 2 The statutory scheme establishes the nature and extent of the ALJ’s authority over these claims: 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....
...able under common law and statutory law. §
766.304, Fla. Stat. (2010) (emphasis added). The Legislature also imposed a time limitation for the filing of an administrative claim for compensation under the NICA Plan: Any claim for compensation under ss.
766.301-766-316 that is filed more than 5 years after the birth of an infant alleged to have a biHh-related neurological injury shall be barred....
...ot be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316....
...g out of the birth or delivery of a child, which may be as long as eight years. § 95.1 l(4)(b), Fla. Stat. (2010). Furthermore, the Legislature expressly provided in § 95.1 l(4)(b) that the limitations period "shall not apply to actions for which ss. 766.301-766.316 provide the exclusive remedy.” By this language the Legislature made plain its intent to apply the five-year statute of limitations to compensable NICA claims (i.e., those claims for which NICA provides the exclusive remedy)....
CopyPublished | Florida 4th District Court of Appeal | 2005 Fla. App. LEXIS 6000, 2005 WL 957593
...We grant this petition for a writ of prohibition to prevent the trial court from proceeding in excess of its jurisdiction. The underlying action is a medical malpractice claim falling within the exclusive remedy provided by the Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan). See § 766.301-.316, Fla....
