CopyCited 59 times | Published | Court of Appeals for the Eleventh Circuit | 82 Fed. R. Serv. 3d 503, 2012 WL 1581334, 2012 U.S. App. LEXIS 9334
...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.” Id. § 766.302(2)....
... who practices obstetrics or performs obstetrical services . . . who had paid or was
exempted from payment at the time of the injury the assessment required for
participation in the [no-fault plan] for the year in which the injury occurred.” Id. §
766.302(7)....
...performed or supervised by a “participating physician,” and the Act excludes
12
officers, employees, and agents of the United States from its definition of
“participating physician,” Fla. Stat. § 766.302(7)....
...o the negligence of Stanton and
Audette. The exclusion of “any physician who practices medicine as an officer,
employee, or agent of the Federal Government” from the definition of
“participating physician” in the Compensation Act, see id. §
766.302(7), cannot
expand the waiver of sovereign immunity in the Federal Tort Claims Act because
“state law cannot expand the Government’s liability beyond that which could flow
from an analogous private activity.” Scheib,
759 F.2d at 864.
B....
CopyCited 40 times | Published | Supreme Court of Florida | 1997 WL 18238
...6.301-766.316, Florida Statutes (1995). [1] Petitioner NICA, the Florida Birth-Related Neurological Injury Compensation Association, disputed the Birnies' claim for compensation based on its conclusion that Eric had not suffered an injury covered by section 766.302(2) because he was not "substantially mentally impaired." An administrative hearing subsequently was held to determine whether Eric's injury was covered under the Plan....
...ligence tests" for purposes of compensation under the NICA Plan, the hearing officer concluded that Eric "is permanently and substantially mentally and physically impaired and has suffered a `birth-related neurological injury,' within the meaning of section 766.302(2), Florida Statutes." *1351 NICA appealed the hearing officer's order granting the Birnies' petition for compensation under the Plan....
...tion Plan. In July, 1991, when Eric was two years and four months old, the Birnies filed a petition for compensation for a birth-related neurological injury which NICA contested based on its conclusion that Eric had not suffered an injury covered by section 766.302(2), Florida Statutes (1991), because he was not "substantially mentally impaired." An administrative hearing was held to determine whether Eric's injury was covered by the Plan....
...Moreover, as a direct consequence of his injuries, Eric's social and vocational development have been drastically impaired. Consequently, it is concluded that Eric is permanently and substantially mentally and physically impaired and that Eric has suffered a "birth-related neurological injury," within the meaning of Section
766.302(2), Florida Statutes. Accordingly, the subject claim is compensable under the NICA Plan. Sections
766.302(2),
766.309(2), and
766.31(1), Florida Statutes....
...Thus, a deformity or loss of limb would not ordinarily be covered under the NICA Plan. [end footnote 2] ANALYSIS This case presents this Court with a straightforward question of statutory interpretation and construction. That is, should the word "and," as used in the phrase "substantially mentally and physically impaired" in section 766.302(2) be read in the conjunctive, *1354 or must it be replaced with the word "or" and read in the disjunctive to remain consistent with the legislature's intent in enacting the NICA statute? Although certifying the question for our revie...
...1). As the Birnies did here, the injured infant or his personal representative may seek compensation under the Plan by filing a claim for compensation with the Division of Administrative Hearings (DOAH) within five years of the infant's birth. See §§
766.302(3),
766.303(2),
766.305(1), and
766.313....
...cer in accordance with the provisions of Chapter 120, Florida Statutes (1995). §§
766.304,
766.307,
766.309,
766.31. Pertinent to the issue before us, the hearing officer must determine whether the infant's injury is compensable under the statute. Section
766.302(2) states: "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, delive...
...ble, absurd results and thus defeat the legislature's intent. Accord Holly v. Auld,
450 So.2d 217 (Fla.1984). Unlike those cases, however, reading the word "and" as used in the phrase "permanently and substantially mentally and physically impaired," section
766.302(2), in the conjunctive does not lead to absurd results, nor does it undermine the legislative policy in enacting the NICA statute....
...CONCLUSION We are left with the hearing officer's findingwhich is properly predicated on a reading of the statute in the conjunctive that Eric Bernie is "permanently and substantially mentally and physically impaired and ... has suffered a `birth-related neurological injury' within the meaning of section 766.302(2)." Having thoroughly reviewed the record and the hearing officer's final order, we conclude that it is supported by competent and substantial evidence....
CopyCited 25 times | Published | Supreme Court of Florida | 1997 WL 213718
...at 322. There is a striking similarity between NICA and our worker's compensation law, since in both the legislature took away a common law right to sue and provided an administrative remedy for compensation without fault. In the definitions portion, section 766.302(7), Florida Statutes (1993) provides: "Participating physician" means a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was...
CopyCited 19 times | Published | Supreme Court of Florida | 35 Fla. L. Weekly Supp. 40, 2010 Fla. LEXIS 43, 2010 WL 114510
...ces either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred. § 766.302(7), Fla. Stat. (1997). "`Hospital' means any hospital licensed in Florida." § 766.302(6), Fla....
...QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur. CANADY, J., recused. NOTES [1] We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. [2] The "plan" means the Florida Birth-Related Neurological Injury Compensation Plan established under section
766.303, Florida Statutes (1997). See §
766.302(8), Fla....
CopyCited 16 times | Published | Supreme Court of Florida | 2011 WL 2637444
..."Birth-related neurological injury" is defined by statute as "injury to the brain ... caused by oxygen deprivation ... 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." § 766.302(2), Fla....
...umerous days after the delivery. As required by statute, NICA was served with the petition in the administrative proceedings. NICA intervened and took the position that Tristan did not suffer a "birth-related neurological injury" within the scope of section 766.302(2)....
...during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Consequently, Tristan was not shown to have suffered a "birth-related neurological injury" as defined by the *836 Plan, and the claim is not compensable. § 766.302(2), Fla....
...ery 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....
...xygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2)....
...s a statutory substitute for common law rights and liabilities, its provisions should be strictly construed. Fla. Birth-Related Neuro. Injury Comp. Ass'n,
686 So.2d at 1354 (quoting McKaughan,
652 So.2d at 859). In turning to the statutory language, section
766.302(2) defines "[b]irth-related neurological injury" to mean: [I]njury to the brain or spinal cord of a live infant ......
...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. § 766.302(2), Fla....
...ld avoid readings that would render part of a statute meaningless." (quoting Velez,
934 So.2d at 1165)). However, under the plain language of the statute, the phrase "in the immediate postdelivery period" is a modifier and not an independent phrase. Section
766.302(2) narrows a birth-related neurological injury to one occurring in the course of "labor, delivery, or resuscitation in the immediate postdelivery period." The only word that "immediate postdelivery period" can modify is the term "resu...
...It appears, however, that the First District erroneously injected the term "manifest" into the statutory definition when no such term occurs. See Hayes v. State,
750 So.2d 1, 4 (Fla.1999) ("We are not at liberty to add words to statutes that were not placed there by the Legislature."). In reviewing the definition provided by section
766.302(2), the phrases "caused by" and "occurring in" set forth in the phrase "injury to the brain ......
...deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the *844 injury is a birth-related neurological injury as defined in s. 766.302(2)....
...ia the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, that intent should prevail, for that, in fact is the will of the Legislature." (internal quotation marks omitted)). Under section 766.302, a "claimant" is defined as "any person who files a claim ... for compensation" under the NICA statute for a "birthrelated neurological injury." § 766.302(3), Fla....
CopyCited 16 times | Published | Supreme Court of Florida
...Pursuant to the order of the court, the McKaughans filed a petition for benefits pursuant to the NICA plan. Subsequently, the McKaughans filed a supplementary petition which alleged their son's impairment did not occur "in the course of labor, delivery, or resuscitation in the immediate post-delivery period," see sec. 766.302(2), and therefore did not meet the definition of a birth-related neurological injury as provided in the plan....
...ficer to resolve that issue. NICA also intervened in the administrative proceedings and filed a response in opposition to the McKaughans' supplementary petition, alleging that "Michael has suffered a `birth-related neurological injury' as defined in section 766.302(2), Florida Statutes." In a final order, the administrative hearing officer dismissed the McKaughan's petition without prejudice and concluded: the Plan does not accord a participating physician or other health care provider any right...
...The hearing officer held that the McKaughans had not filed a "claim for compensation" suitable for administrative resolution since they had affirmatively averred that Michael did not meet the statutory definition of an infant suffering a birth-related neurological injury. See § 766.302(2)....
...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. Id. § 766.302(2)....
...If the hearing officer finds that the statutory criteria are satisfied, then the infant, as well as the infant's parents or legal guardians, are entitled to the award of specifically defined, but limited, financial benefits without regard to fault. Id. §
766.31. CLAIMANTS FOR NICA BENEFITS Section
766.302(3) defines the class of claimants who can seek NICA benefits on behalf of injured infants: "Claimant" means any person who files a claim pursuant to s....
CopyCited 15 times | Published | Supreme Court of Florida
...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. Stat. (Supp.1998). In NICA, the Legislature established the NICA Plan, §
766.302(8), Fla....
...(1997). First, the ALJ must determine whether the claim is a birth-related neurological injury. §
766.309(1)(a), Fla. Stat. (1997). Second, the ALJ must determine whether the injury was caused by a participating health care provider, as defined in section
766.302(7)....
...("[N]o civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s.
766.303."). If the claim is ultimately determined to be compensable, NICA's exclusive remedy provision shields participating health care providers from a civil tort action based upon the same claim. See §
766.302(6)-(7), Fla....
...
863 So.2d at 452. The Fergusons filed suit on May 26, 1999. [5] As explained below, NICA claims are initially filed with the Association, the administrator of the NICA Plan. The Association makes an initial recommendation on whether the claim is compensable. See §
766.302(1), Fla....
...the Fergusons, but she did not join in the appeal below or in this proceeding. [8] Although the Association has stipulated that the Fergusons' claim is compensable, the ALJ has not made any findings regarding the compensability of the claim. [9] See § 766.302(1), Fla....
...used 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. § 766.302(2), Fla....
...[11] "Claimant" is defined in applicable part as "any person who files a claim pursuant to s.
766.305 for compensation for a birth-related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant." §
766.302(3), Fla....
CopyCited 14 times | Published | Florida 2nd District Court of Appeal
...used 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. § 766.302(2)....
...See Travelers Ins. Co. v. Sitko,
496 So.2d 920 (Fla. 1st DCA 1986). In that regard, the Plan clearly contemplates that a hearing officer's jurisdiction under section
766.304 is limited to determining and hearing all claims filed pursuant to the Plan. Section
766.302(3) defines a claimant to mean "any person who files a claim pursuant to s....
...and, in certain circumstances, casualty insurance companies. §
766.314(5)(b)(c). [3] In 1993, the Plan was amended to repose this authority in an administrative hearing officer. Ch. 93-251, §§ 2, 3, at 2477, Laws of Fla. (codified as amended at §§
766.302(4),
766.304, Fla....
CopyCited 12 times | Published | Florida 2nd District Court of Appeal | 2004 WL 57230
...Eligibility for NICA compensation is based on a "determin[ation] that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." §
766.31(1). A detailed definition of "[b]irth-related neurological injury" is set forth in section
766.302(2); "[p]articipating physician" is defined in section
766.302(7)....
...xygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2)....
CopyCited 11 times | Published | Florida 4th District Court of Appeal | 2002 WL 385000
...Davila informed the Nagys that she was a participant in NICA and any damages were limited by the Plan. The Nagys filed a petition with the Division of Administrative Hearings for a determination as to whether Ava suffered a "birth-related neurological injury" for which compensation should be awarded under the Plan. Section 766.302(2), Florida Statutes (1997), provides: "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...
...which renders the infant permanently and substantially mentally and physically impaired"), which must occur during labor, delivery or resuscitation for the claim to be compensable. Consequently, the ALJ concluded that Ava suffered a "birth-related neurological injury," within the meaning of section 766.302(2), Florida Statutes, and the injury was compensable under the Plan....
...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. Stat. (1997). This case involves the interpretation and application of section
766.302(2), a part of the Plan, which defines "birth-related neurological injury." "A determination of the administrative law judge as to the qualification of the claim for purposes of compensability under s....
...An ALJ's interpretation of the Plan is reviewed de novo. See Fluet v. Fla. Birth-Related Neurological Injury Comp. Ass'n,
788 So.2d 1010 (Fla. 2d DCA 2001). The Nagys do not dispute the ALJ's findings of fact. They dispute the ALJ's interpretation of when the brain injury must occur according to section
766.302(2)....
...NICA's expert stated that he could not determine when the postdelivery diminution in the blood supply injured the brain. Because the initial injury was to something other than the baby's brain or spinal cord, by definition, it is not a "birth-related neurological injury" within section 766.302(2)....
CopyCited 10 times | Published | Florida 4th District Court of Appeal | 1995 WL 757909
...The hearing officer refused to expressly rule upon the issue of notice, but proceeded to make the following finding: Having carefully reviewed the evidentiary record developed in this case, the Hearing Officer agrees with NICA that Kathleen Behan has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes, and that therefore the Behans' claim is noncompensable under the Plan......
CopyCited 10 times | Published | Florida 3rd District Court of Appeal | 1992 WL 191597
...This court finds from an examination of the subject statute that the Florida legislature did not intend the statute to apply to `death' under the circumstances as herein presented. We disagree. After defining a "birth-related neurological injury" in section 766.302(2), the subsection continues in the next sentence to explain what is included and what is excluded from the definition: This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality....
...plies. The conclusion follows logically. If the legislature had intended otherwise it would not have excluded, specifically, death caused by other than birth-related injury. Further support for the conclusion is to be found in the second sentence of section 766.302(3), which provides: Such a claim [for a birth-related neurological injury] may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof....
CopyCited 8 times | Published | Florida 1st District Court of Appeal
...Under the plan, a "participating physician" is one who is "licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation" in NICA. § 766.302(7), Fla....
CopyCited 7 times | Published | Florida 2nd District Court of Appeal | 2003 WL 1785928
...KELLY, J., and SCHEB, JOHN M., Senior Judge, Concur. NOTES [1] Section
766.315, Florida Statutes (Supp. 1998), establishes the Florida Birth-Related Neurological Injury Compensation Association (NICA) to administer the Florida Birth-Related Neurological Injury Compensation Plan. See §
766.302(2)....
CopyCited 6 times | Published | Florida 3rd District Court of Appeal | 2005 WL 2862055
...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 6 times | Published | Florida 5th District Court of Appeal | 2007 WL 4458151
...ical Injury Compensation Plan ("NICA"), created by sections
766.301-.316, Florida Statutes (2002). In the final order, the administrative law judge ("ALP) determined that, Isabelle suffered a "birth-related neurological injury" within the meaning of section
766.302(2); that the language of NICA's brochure satisfied the requirements of section
766.316; and that Mrs....
...The injury must have rendered the infant permanently and substantially mentally and physically impaired. The legislation does not apply to genetic or " congenital abnormalities. Only injuries to infants delivered by participating physicians, as defined in s. 766.302(7), Florida Statutes, are covered by the Plan....
...islature's intent to make all parts of the sentence applicable in the conjunctive. See, e.g., Fla. Birth-Related Neurological injury Comp. Assn,
686 So.2d 1349 (holding that word "and" in phrase "substantially mentally and physically impaired" under section
766.302(2), Florida Statutes, must be construed to require both mental and physical impairment, not mental "or" physical impairment)....
CopyCited 5 times | Published | Florida 5th District Court of Appeal | 2008 WL 4753729
...(2004). The claim was filed by the survivors of Harper Dean Stever, who died six days after birth. In a final order, the administrative law judge ("ALJ") determined that Harper had not suffered a "birth-related neurological injury," as defined under section 766.302(2), Florida Statutes (2004), since the brain injury did not occur "in the course of labor, delivery, or resuscitation in the immediate postdelivery period....
...Willis did not offer any opinion as to whether a brain injury occurred during "resuscitation in the immediate postdelivery period." Based on Dr. Willis's opinion, NICA determined that the claim was not compensable as the injury did not meet the definition of a "birth-related neurological injury," as defined in section 766.302(2), Florida Statutes....
...caused by oxygen deprivation or mechanical injury "in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital," which renders the infant both permanently and substantially mentally and physically impaired. § 766.302(2), Fla....
...Here, the ALJ was required to determine whether Harper suffered a brain injury due to oxygen deprivation or mechanical injury "in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital " that rendered him permanently and substantially mentally and physically impaired. § 766.302(2), Fla....
CopyCited 5 times | Published | Florida 2nd District Court of Appeal | 2008 WL 140806
...However, physicians who choose to participate in the coverage provided by the Plan are *707 required to pay an additional annual assessment. §
766.314(4), (5). Section
766.303(2) provides that if injuries resulting from the delivery of an infant meet the statutory definition of a "[b]irth-related neurological injury," §
766.302, and if the delivering physician is a participant in the Plan, the remedy provided by the Plan is the exclusive remedy available to the infant and his or her parents....
CopyCited 5 times | Published | Florida 4th District Court of Appeal
...vision of section
766.303(2). The circuit court denied summary judgment, finding that the Pediatrix doctors were not immune from suit, as the exclusivity provision did not apply to them because they are not "participating physicians" under the plan. §
766.302(7) (defining a "participating physician" as one who practices obstetrics or "performs obstetrical services" and who has paid the yearly assessment required for participation)....
...n a birth, or immediate post-delivery resuscitation, as long as one physician participates in the plan. To be entitled to the plan's protections, each physician practicing obstetrics or performing obstetrical services must pay the yearly assessment. § 766.302(7), Fla....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2005 WL 2104317
...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....
...ery 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....
...J to apply the presumption against her in this case. For the reasons set forth above with regard to the sufficiency of the evidence, we reject this argument as meritless. As for her "on its face" challenge, Alexander claims that sections
766.309 and
766.302 of the Florida Statutes are unconstitutional because the statutes contain vague terms, specifically citing to the terms "labor", "substantial impairment", and "permanent injury"....
CopyCited 4 times | Published | Florida 5th District Court of Appeal | 2010 Fla. App. LEXIS 8763, 2010 WL 2425998
...Although we view this binding precedent as distinguishable, we also certify the question presented in this appeal as one of great public importance. Facts In August 2007, MacKenzie Samples was born with birth-related neurological injuries, as defined in section 766.302(2), Florida Statutes (2007)....
...ceives a total of $100,000 in another case. However, we agree with NICA that similarly situated people within the classification of "parents" are not treated differently. Every child subject to NICA has two biological parents, a mother and a father. § 766.302(9), Fla....
CopyCited 3 times | Published | Florida 3rd District Court of Appeal | 1994 WL 45168
...In general, the plan applies where there has been an injury to the brain or spinal cord of an infant caused by oxygen deprivation or mechanical injury during labor or delivery, which renders the infant permanently and substantially mentally and physically impaired. See § 766.302(2), Fla....
...payor as well as payee, after considering the statutory factors. We remand for a new hearing in light of the principles stated here. The order under review is reversed and the cause remanded for further proceedings consistent herewith. NOTES [1] See § 766.302(1), Fla....
CopyCited 3 times | Published | Florida 4th District Court of Appeal | 2010 Fla. App. LEXIS 4502, 2010 WL 1329656
...on of section
766.303(2). The circuit court denied summary judgment, finding that the Pediatrix doctors were not immune from suit, as the exclusivity provision did not apply to them because they are not “participating physicians” under the plan. §
766.302(7) (defining a “participating physician” as one who practices obstetrics or “performs obstetrical services” and who has paid the yearly assessment required for participation)....
...n a birth, or immediate post-delivery resuscitation, as long as one physician participates in the plan. To be entitled to the plan's protections, each physician practicing obstetrics or performing obstetrical services must pay the yearly assessment. § 766.302(7), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2010 Fla. App. LEXIS 5257, 2010 WL 1563544
...The ALJ concluded that a separate notice was required with respect to each pregnancy. We agree. Section
766.316 requires "[e]ach hospital with a participating physician on its staff" to "provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries." Section
766.302(7) defines the term, "participating physician" as a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payme...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1995 WL 96392
...NICA further provides for administrative procedures to determine whether an injury is a birth-related neurological injury, and, if so, the amount of damages. The statute forecloses any civil action against a NICA participant *493 when the injury is of the type defined in section 766.302(2), Florida Statutes (1993)....
...The Division of Administrative Hearings of the Department of Management Services is charged with providing the administrative hearings for the participating health care providers and the claimant. §
766.305, Fla. Stat. (1993). Claimants are defined by section
766.302(3): (3) "Claimant" means any person who files a claim pursuant to s....
CopyCited 2 times | Published | Florida 4th District Court of Appeal | 1995 WL 757878
...He also found as a matter of fact that the injury to plaintiffs' child did not occur during birth, but rather several hours after birth, and did not therefore occur "in the course of labor, delivery, or resuscitation in the immediate postdelivery," as required by section 766.302(2)....
...at 322. There is a striking similarity between NICA and our worker's compensation law, since in both the legislature took away a common law right to sue and provided an administrative remedy for compensation without fault. In the definitions portion, section 766.302(7), Florida Statutes (1993) provides: "Participating physician" means a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was...
CopyCited 2 times | Published | Florida 5th District Court of Appeal | 1995 WL 612957
...Larry Sands, of Sands, White & Sands, P.A., Daytona Beach, for Appellees. HARRIS, Judge. The issue on appeal is whether the hearing officer erred in his construction and application of the definition of a "birth-related neurological injury" as provided in section 766.302(2), Florida Statutes....
...The Birnies filed a petition for compensation for a birth-related neurological injury which was denied by the Florida Birth-Related Neurological Injury Compensation Association (NICA) based on its conclusion that Eric had not suffered an injury covered by section 766.302(2), Florida Statutes (1991) because he was not "substantially mentally impaired." An administrative hearing was held to determine whether Eric's injury was covered by the Plan....
...His social and vocational development have unquestionably been significantly impaired (R. 87-98). It is obvious, as determined by the hearing officer, that the coverage issue in this case turns on the definition of "birth-related neurological injury" as defined by section 766.302(2), Florida Statutes, which provides: "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...
...pears to have an intellectual ability in the normal range, NICA contends that Eric is not substantially and permanently "mentally impaired" and thus does not come within the scope of the statute. The hearing officer rejected NICA's interpretation of section 766.302(2) as "unduly narrow." We agree and affirm. NICA urges that section 766.302(2) is in derogation of the common law and thus must be strictly construed; the Birnies, on the other hand, contend that the statute is remedial and thus must be liberally construed....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2005 WL 1199057
...dministrative law judge to reach a determination regarding compensability. Section
766.309, in turn, directs the administrative law judge to decide (1) "[w]hether the injury claimed is a birth-related neurological injury," as that term is defined in section
766.302(2); (2) "[w]hether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching h...
CopyCited 1 times | Published | Supreme Court of Florida | 2007 Fla. LEXIS 2
...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. Stat. (Supp.1998). In NICA, the Legislature established the NICA Plan, §
766.302(8), Fla....
...(1997). First, the ALJ must determine whether the claim is a birth-related neurological injury. §
766.309(l)(a), Fla. Stat. (1997). Second, the ALJ must determine whether the injury was caused by a participating health care provider, as defined in section
766.302(7)....
...(“[N]o civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s.
766.303.”). If the claim is ultimately determined to be compensable, NICA’s exclusive remedy provision shields participating health care providers from a civil tort action based upon the same claim. See §
766.302(6)-(7), Fla....
...
863 So.2d at 452 . The Fergusons filed suit on May 26, 1999. . As explained below, NICA claims are initially filed with the Association, the administrator of the NICA Plan. The Association makes an initial recommendation on whether the claim is compensable. See §
766.302(1), Fla....
...the Fergusons, but she did not join in the appeal below or in this proceeding. . Although the Association has stipulated that the Fergusons’ claim is compensable, the ALJ has not made any findings regarding the com-pensability of the claim. . See § 766.302(1), Fla....
...used 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. § 766.302(2), Fla....
..."Claimant” is defined in applicable part as "any person who files a claim pursuant to s.
766.305 for compensation for a birth-related neurological injury to an infant. Such a claim may be filed by any legal representative *711 on behalf of an injured infant.” §
766.302(3), Fla....
CopyCited 1 times | Published | Supreme Court of Florida | 21 Fla. L. Weekly Supp. 91, 1996 Fla. LEXIS 277
‘birth-related neurological injury’ as defined in section
766.302(2), Florida Statutes.” In a final order, the
CopyCited 1 times | Published | Florida 5th District Court of Appeal | 2006 Fla. App. LEXIS 20576, 2006 WL 3523624
...Sierra’s claim was compensable under the Plan. Based on its experts’ opinions, NICA “determined that the instant claim [was] not compensable as the injury [did] not meet the definition of a ‘birth-related neurological injury’ as defined in Section 766.302(2), Florida Statutes, which specifically requires that the injury render ‘the infant permanently and substantially mentally and physically impaired.’ ’’ A hearing was then held to determine whether the Matteinis’ claim was compensable....
...Under the Plan, a “birth-related neurological injury” is an injury to the brain or spinal cord of an infant caused by oxygen deprivation or mechanical injury during labor or delivery, which renders the infant both “permanently and substantially mentally and physically impaired.” § 766.302(2), Fla....
...The existence of permanent brain injury or damage alone, without demonstrating both permanent and substantial mental and physical impairment, is not sufficient to demonstrate that the infant suffers a “birth-related neurological injury,” as defined in section 766.302(2)....
CopyCited 1 times | Published | Florida 1st District Court of Appeal | 2009 Fla. App. LEXIS 12744, 2009 WL 2602286
...d not during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital. Consequently, Tristan was not shown to have suffered a "birth-related neurological injury" as defined by the Plan, and the claim is not compensable. § 766.302(2), Fla....
...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 both "permanently and substantially mentally and physically impaired." § 766.302(2), Fla....
...e scope of the NICA Plan. In response, the Bennetts and NICA argue that the presumption cannot be employed in favor of medical providers, but only in favor of a claimant(s), who by statute can only be a legal representative(s) of the injured infant. § 766.302(3), Fla....
...ed in renal failure, hepatic injury, respiratory complications, and hematologic complications, [the child's medical records from St. Vincent's Medical Center] state Tristan did not have permanent and substantial neurological impairment as defined in section 766.302, Florida Statutes, until suffering from severe hyponatremia, pulmonary arrest, hours of resuscitation, and profound metabolic acidosis on October 3, 2001....
...n deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related *70 neurological injury as defined in s. 766.302(2)....
...pplying the presumption of compensability. Under section
766.309(1)(a), the rebuttable presumption does not expressly require a showing that the neurological injury occurred during labor, delivery or in the immediate post-delivery period. Of course, section
766.302(2) defines a [b]irth-related neurological injury as an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant both "permanently and substantially mentally and physically impaired." Importantly, neither section
766.302(2) nor section
766.309(1)(a) requires that neurological damage be manifest during "labor, delivery, or resuscitation in the immediate postdelivery period." It is "oxygen deprivation or mechanical injury" which must occur during "labor...
CopyPublished | Florida 4th District Court of Appeal | 2004 Fla. App. LEXIS 13846, 2004 WL 2101891
...Unfortunately, there were complications during the birth of the second child, Giuli-ano, and he sustained brain or spinal cord injuries due to oxygen deprivation. It was eventually determined that Giuliano had sustained a birth-relatéd neurological injury, as defined by section 766.302(2), Florida Statutes....
...provision: (1) the child must have sustained a birth-related neurological injury as defined by section
733.302(2) and (2) the defendant health care provider must have provided the patient with notice = of the provider's participation in NICA. See §§
766.302(2),
766.303(2),
766.316, Fla. Stat. (1988); §§
766.302(2),
766.303(2),
766.316, Fla....
CopyPublished | Florida 1st District Court of Appeal
...academic exercise, and we have no jurisdiction to engage in such a
meaningless endeavor. 2 We should dismiss.
I
According to McDonald, her daughter suffered a “birth-related
neurological injury” (“BRNI”), as defined in section 766.302(2),
Florida Statutes....
CopyPublished | Florida 4th District Court of Appeal | 2015 Fla. App. LEXIS 8026, 2015 WL 3396708
...We agree with respondents that the trial court did not depart from the essential requirements of law in denying petitioners’ motion. The complaint alleges that the malpractice occurred in treating the child during the days and weeks after the birth, and not within the “immediate post-delivery period in a hospital.” § 766.302(2), Fla.' Stat....
...e-delivery notice as required 'to claim immunity from civil suit under NICA. See §
766.316, Fla. Stat. (2007). In fact, these petitioners are not participating physicians or within the class of doctors covered by the NICA statute. See §§
766.301,
766.302(7), Fla....
CopyPublished | Florida 4th District Court of Appeal
...We agree with respondents that
the trial court did not depart from the essential requirements of law in
denying petitioners’ motion.
The complaint alleges that the malpractice occurred in treating the
child during the days and weeks after the birth, and not within the
“immediate post-delivery period in a hospital.” § 766.302(2), Fla....
...re-delivery notice as required to
claim immunity from civil suit under NICA. See §
766.316, Fla. Stat.
(2007). In fact, these petitioners are not participating physicians or within
the class of doctors covered by the NICA statute. See §§
766.301,
766.302(7), Fla....
CopyPublished | Supreme Court of Florida | 38 Fla. L. Weekly Supp. 317, 2013 WL 2096260, 2013 Fla. LEXIS 1001
...Fifth District’s decision in Samples . I. BACKGROUND In its decision below, the Fifth District set forth the following facts and procedural history: In August 2007, MacKenzie Samples was born with birth-related neurological injuries, as defined in section 766.302(2), Florida Statutes (2007)....
CopyPublished | District Court of Appeal of Florida | 1997 Fla. App. LEXIS 6935, 1997 WL 336591
...We have for review the trial court’s order dismissing with prejudice a medical malpractice action involving a birth-related neurological injury, yet retaining jurisdiction over the ease. We reverse. Justin W. Haddox, a minor, suffered a birth-related neurological injury as defined in section 766.302(2), Florida Statutes (1993), a provision of Florida’s Birth-Related Neurological Injury Compensation Plan (NICP)....
CopyPublished | District Court of Appeal of Florida
...Under the plan, a “participating physician” is one who is “licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation” in NICA. § 766.302(7), Fla....
CopyPublished | District Court of Appeal of Florida | 1999 Fla. App. LEXIS 472, 1999 WL 22730
...The trial court did not make a judicial determination that Michael suffered a birth-related injury as defined by the Plan. The stipulation went on to identify the following disputed issues of fact: ' 1. Whether Michael did in fact suffer a “birth-related neurological injury” as defined in section 766.302(2), Florida Statutes (Supp.1988), so as to entitle him to benefits? 2....
CopyPublished | Florida 5th District Court of Appeal | 2004 WL 19485
...ngs to resolve whether Raven was covered by the plan. The NICA statute defines "birth-related neurological injury" to mean an injury which, among other things, renders the infant both "permanently and substantially mentally and physically impaired." § 766.302(2), Fla....
...Despite severe physical limitations, testing indicated that Eric was average or even above average in his cognitive skills. Eric's parents nonetheless sought compensation under the plan, claiming that he was "mentally impaired" within the meaning of section 766.302(2), Florida Statutes (1991)....
...Moreover, as a direct consequence of his injuries, Eric's social and vocational development have been drastically impaired. Consequently, it is concluded that Eric is permanently and substantially mentally and physically impaired and that Eric has suffered a "birth-related neurological injury," within the meaning of Section
766.302(2), Florida Statutes. Accordingly, the subject claim is compensable under the NICA Plan. Sections
766.302(2),
766.309(2), and
766.31(1), Florida Statutes....
...nding which is properly predicated on a reading of the statute in the conjunctivethat Eric Bernie is "permanently and substantially mentally and physically impaired and ... has suffered a `birth-related neurological injury' within the meaning of section 766.302(2)." Having thoroughly reviewed the record and the hearing officer's final order, we conclude that it is supported by competent and substantial evidence....
...The Finding That the Infant is Not Substantially and Permanently Mentally Impaired is a Factual Finding Supported by Substantial Competent Evidence In order to obtain compensation under the Plan, the injured infant must sustain a "birth-related neurological injury." In section 766.302(2), the Legislature provides the following definition: "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 ge...
...nations based upon all available evidence: Whether the injury claimed is a birth-related neurological injury. (Emphasis added). This statute also provides that a presumption arises that the injury is a birth-related neurological injury as defined in section 766.302(2) "[i]f the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby...
...indingwhich is properly predicated on a reading of the statute in the conjunctivethat Eric Bernie is "permanently and substantially mentally and physically impaired and ... has suffered a `birth-related neurological injury' within the meaning of section 766.302(2)." Having thoroughly reviewed the record and the hearing officer's final order, we conclude that it is supported by competent and substantial evidence....
...Moreover, the Birnie court made it clear what issue it intended to resolve when it stated: *574 This case presents this Court with a straightforward question of statutory interpretation and construction. That is, should the word "and," as used in the phrase "substantially mentally and physically impaired" in section
766.302(2) be read in the conjunctive, or must it be replaced with the word "or" and read in the disjunctive to remain consistent with the legislature's intent in enacting the NICA statute?
686 So.2d at 1353-54....
...Had we been free in this case to write on a clear page, I might have agreed with the majority. The ALJ is the factfinder; his conclusions are supported by substantial and competent evidence. The NICA statute appears to require both permanent and substantial mental and physical impairment. § 766.302(2), Fla....
...
686 So.2d at 1353. The Florida Supreme Court approved this interpretation of the statute. In my view, we are bound to follow this interpretation until either the Legislature or the Supreme Court changes the definition of a "birth-related neurological injury." §
766.302(2), Fla....
...ated neurological injuries" under the NICA statute. Right now, it is up for grabs. PLEUS, J., dissenting. The overall result of the majority decision will be to eliminate any meaningful standards in determining whether mental impairment exists under section 766.302(2), Florida Statutes....
...By failing to announce any standard, today's en banc decision permits the ALJ to exclude the mentally impaired child with some cognitive function from participating in the Plan. This would leave Raven with no resources to treat her injuries. SHARP, W., J., concurs. NOTES [1] Section 766.302(2), Florida Statutes (1995), in its entirety provides: "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 inj...
...between 12-14 months) or the Stanford Binet Intelligence Test (between ages 4-5). (emphasis added). Fla. Stat. § 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....
CopyPublished | Florida 5th District Court of Appeal | 2011 Fla. App. LEXIS 1081, 2011 WL 335401
...ng of timely notice to the Gwyns. In response, the Gwyns observed that it was undisputed that Dr. Stroup, the only attending *387 obstetrician at the time of Daniel's delivery, was not a "participating physician" as defined in the Act. Specifically, section 766.302(7), Florida Statutes (2010), defines "participating physician" as: A physician licensed in Florida to practice medicine who practices obstetrics, or performs obstetrical services either full time or part time and who had paid or was e...
...v. Braniff,
696 So.2d 308, 309-10 (Fla.1997). With limited exceptions not applicable to the instant case, physicians providing obstetric services are required to pay an annual assessment of $5,000 to be considered a "participating physician." See §§
766.302(7) and
766.314(4)(c)....
CopyPublished | Florida 5th District Court of Appeal
...deprivation caused a brain injury that rendered Child
permanently and substantially impaired. The parties stipulated
that the sole legal issue for the ALJ’s adjudication was whether
Child “suffered a birth-related neurological injury” as defined by
section 766.302(2), Florida Statutes.
Each side presented expert deposition testimony concerning
the disputed facts....
...sustained by an infant delivered by an obstetrician.” Bennett v. St.
Vincent’s Med. Ctr., Inc.,
71 So. 3d 828, 836 (Fla. 2011). Instead,
coverage is reserved for when an infant suffers a “birth-related
neurological injury,” which is a statutory term of art. Id. at 836–
37; see §
766.302(2), Fla....
...heavily. The ALJ’s factual finding . . . is supported by substantial
competent evidence and is conclusive and binding on this Court.”).
Because the ALJ concluded that Appellant did not show a
“birth-related neurological injury” as defined by section
766.302(2), and because the findings underlying this conclusion
are supported by competent, substantial evidence, we must affirm.
AFFIRMED.
MAKAR, JAY, and SOUD, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla....
CopyPublished | Florida 1st District Court of Appeal
...compensable, the parents had to demonstrate, at a minimum, W.K.
suffered a BRNI, defined in part as an “injury to the brain or spinal
cord of a live infant . . . which renders the infant permanently and
substantially mentally and physically impaired.” § 766.302(2), Fla.
Stat....
CopyPublished | District Court of Appeal of Florida | 2016 Fla. App. LEXIS 17937
Medical Center (“the hospital”) challenges section
766.302(2) of NICA on state and federal equal protection
CopyPublished | Florida 1st District Court of Appeal | 2016 Fla. App. LEXIS 19341
... motion for attorneys’ fees and costs in a NICA-related dispute. We reverse and remand for the entry of an order granting fees and costs. Background Appellants are the parents of a son born with a- birth-related neurological injury as defined by § 766.302(2), Florida Statutes, who was admitted into the Florida Birth-Related Neurological Injury Compensation Association (NICA) program on November 10, 1997....
CopyPublished | Florida 1st District Court of Appeal
...parents Jennifer and Marlon Chavez are not entitled to
compensation out of the Florida Birth-Related Neurological Injury
Compensation Plan (the “Plan”) because their daughter did not
sustain a “birth-related neurological injury” (“BRNI”), as that type
of injury is defined by section 766.302(2), Florida Statutes (2017)....
...minimum weight, “caused by oxygen deprivation or mechanical
4
injury” that occurs during “labor, delivery, or resuscitation,” that
leaves the baby “permanently and substantially mentally and
physically impaired.” §§
766.302(2),
766.303(4),
766.315(1)(a), Fla.
Stat.
The Plan essentially is a risk-management or insurance trust
fund....
...Hearing
(“DOAH”)—part of the Department of Management Services in the
executive branch—to administer these “claims” against the Plan’s
funds, which is done through its ALJs, appointed hearing officers.
§
766.304, Fla. Stat.; see also §
766.302, Fla....
...the executive branch. To be clear, it is they (or another legal
representative of the infant) as claimants who initiate this
executive-branch regime, “claimant” being defined as “any person
who files a claim pursuant to s.
766.305 for compensation.”
§
766.302(3), Fla....
...fact meets the definition of a BRNI, but also whether “obstetrical
services” were provided by or under the supervision of a physician
who had paid an assessment into the Plan (or was exempted) for
the year in which the BRNI occurred. §
766.309(1), Fla. Stat.; see
also §
766.302(7), Fla....
...nal question, and
we took oral argument as well. 4 Shands and UF acknowledge that
the Chavezes are not “claimants” against the Plan, and that
neither NICA nor a healthcare provider may initiate a proceeding
regarding compensation under NICA. Cf. § 766.302(3), Fla....
...malpractice action in circuit court.”
668 So. 2d at 975 (emphasis
supplied).
11
In answering the question, the supreme court rejected several
arguments. First, it rejected the providers’ assertion that the use
of the word “may” in section
766.302(3), Florida Statutes, (viz.:
stating that “a claim may be filed by [the injured infant’s] legal
representative”) is permissive and does not exclude a provider
from seeking benefits for the infant....
...
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....
...Instead, before the court in Bennett were two other legal
questions involving the Plan’s text: whether the district court
correctly construed the term “immediate postdelivery period in a
hospital” as used in the Plan’s definition of a BRNI (section
766.302(2)); and whether the district court correctly applied the
“rebuttable presumption” provided for in section
766.309(1)(a),
Florida Statutes, even though the parents were not making a claim
for compensation....
...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. Stat. This
right is in favor of “the injured infant” to “promote[] and protect[]
the health and best interests of children with birth-related
neurological injuries.” §§
766.302(3),
766.303(4), Fla....
CopyPublished | Florida 1st District Court of Appeal
(“BRNI”), as that type of injury is defined by section
766.302(2), Florida Statutes (2017). 1 The Chavezes
CopyPublished | Florida 1st District Court of Appeal
...and Marlon Chavez are not entitled to compensation out of the
Florida Birth-Related Neurological Injury Compensation Plan (the
“Plan”) because their daughter did not sustain a “birth-related
neurological injury” (“BRNI”), as that type of injury is defined by
section 766.302(2), Florida Statutes (2017)....
...to a baby of a specified
minimum weight, “caused by oxygen deprivation or mechanical
injury” that occurs during “labor, delivery, or resuscitation,” that
leaves the baby “permanently and substantially mentally and
physically impaired.” §§
766.302(2),
766.303(4),
766.315(1)(a), Fla.
Stat....
...Hearings
(“DOAH”)—part of the Department of Management Services in the
executive branch—to administer these “claims” against the Plan’s
funds, which is done through its ALJs, appointed hearing officers.
§
766.304, Fla. Stat.; see also §
766.302(4), (5), Fla....
...executive branch. To be clear, it is they (or another legal
representative of the infant) as claimants who put this executive-
branch regime into motion, “claimant” being defined as “any
person who files a claim pursuant to s.
766.305 for compensation.”
§
766.302(3), Fla....
...fact meets the definition of a BRNI, but also whether “obstetrical
services” were provided by or under the supervision of a physician
who had paid an assessment into the Plan (or was exempted) for
the year in which the BRNI occurred. §
766.309(1), Fla. Stat.; see
also §
766.302(7), Fla....
...5 Shands and
UF acknowledge that the Chavezes are not “claimants” against the
Plan, and that neither NICA nor a healthcare provider may
initiate a proceeding regarding compensation under NICA. Cf.
5 The question was further addressed on rehearing.
11
§ 766.302(3), Fla....
...malpractice action in circuit court.” McKaughan,
668 So. 2d at 975
(emphasis supplied).
In answering the question, the supreme court rejected several
arguments. First, it rejected the providers’ assertion that the use
of the word “may” in section
766.302(3), Florida Statutes, (viz.:
stating that “a claim may be filed by [the injured infant’s] legal
representative”) is permissive and does not exclude a provider
from seeking benefits for the infant....
...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....
...Instead, before the court in Bennett were two other legal
questions involving the Plan’s text: whether the district court
correctly construed the term “immediate postdelivery period in a
hospital” as used in the Plan’s definition of a BRNI (section
766.302(2)); and whether the district court correctly applied the
“rebuttable presumption” provided for in section
766.309(1)(a),
Florida Statutes, even though the parents were not making a claim
for compensation....
...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. Stat. This
right is in favor of “the injured infant” to “promote[] and protect[]
the health and best interests of children with birth-related
neurological injuries.” §§
766.302(3),
766.303(4), Fla....
CopyPublished | Florida 3rd District Court of Appeal | 2012 WL 1448963, 2012 Fla. App. LEXIS 6544
...used 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. § 766.302(2), Fla....
...766.305 for compensation for a birth-related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof. § 766.302(3), Fla....
...ed in the business records of Jackson Memorial Hospital, one of the appellants in this case. . The Florida Birth-Related Neurological Injury Compensation Association was created by the NICA statute and serves as the administrator of the NICA Plan. §§
766.302(1),
766.303(1), and
766.315, Fla....
...This likely explains why Expósito did not file a petition for benefits under the NICA Plan before filing her malpractice claim in circuit court. . "Claimant” means “any person who files a claim pursuant to s.
766.305 for compensation for a birth-related neurological injury to an infant." §
766.302(3) Fla....
