Florida/Georgia Personal Injury & Workers Compensation

...Id. § 766.303(2). To recover under the no-fault plan, the representatives of an injured infant must file a claim with the Florida Birth-Related Neurological Injury Compensation Association, which administers the plan. Id. §§ 766.303, 766.305, 766.315....

...judge determines that the infant’s injury is a “birth-related neurological injury” sustained during obstetric treatment by a “participating physician” or a certified nurse midwife under the supervision of a “participating physician.” Id. § 766.309, 766.31. The Compensation Act defines both the covered injuries and the professionals....

...For a compensable claim, the injured infant’s representatives are entitled to recover only actual medical expenses, an award of up to $100,000 to the infant’s parents or legal guardians, a $10,000 death benefit if the infant passed away, and reasonable attorney’s fees and related expenses. Id. § 766.31....

...common law and statutory law.” Id. § 766.304. Awards paid through the no-fault compensation plan are funded by assessments on physicians and hospitals that provide obstetric services. Id. § 5 766.314(1), (4). All hospitals licensed in Florida are required to pay assessments based on the number of infants delivered in the hospital. Id. § 766.314(4)(a). Physicians who elect to participate in the plan must pay an assessment of $5,000 annually. Id. § 766.314(4)(c), (5)(a)....

...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....

...he 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....

...itations 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....

...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 Association has been given broad powers to administer the Plan, including payment of claims on behalf of the Plan. § 766.315. To fund the Plan, which the Florida Supreme Court has compared to a form of insurance supported by a tax, the legislature imposed mandatory yearly assessments on all licensed physicians and hospitals. § 766.314(4)(a)(b); Coy v. Florida Birth-Related Neurological Compensation Plan, 595 So.2d 943 (Fla. 1992) (upholding constitutionality of section 766.314). [2] As noted in Coy, "obstetricians are not required to join the Plan, and insurance thus is available only if the obstetrician has elected to join." 595 So.2d at 944. Obstetricians who decide to participate pay a much higher assessment. § 766.314(4)(c)....

...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. § 766.31....

...In charging the Association with the responsibility of administering the Plan, the legislature granted it the broad authority to "[h]ave and exercise all powers necessary or convenient to effect any or all of the purposes for which the plan is created." § 766.315(4)(g)....

...[3] Moreover, even though an administrative hearing officer now performs this function, that officer, as well as a party to the proceeding, can invoke the jurisdiction of a circuit court for assistance in the determination and enforcement of an award, as can similarly be done under the Workers' Compensation Act. Compare § 766.312 with §§ 440.24(1); 440.33(2), Fla....

...expressed ... or to speculate about what should have been intended." Public Health Trust of Dade County v. Lopez, 531 So.2d 946, 949 (Fla. 1988) (citations omitted). Under the Plan, a claim for compensation must be filed within five years of birth. § 766.313....

...Associates, Inc., were intervenors below. [2] To maintain the Plan on an "acturarially sound basis," funds are also derived in part from the Insurance Commissioner's Regulatory Trust Fund and, in certain circumstances, casualty insurance companies. § 766.314(5)(b)(c)....

...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)....

...ctive of fault." § 766.301(1)(d). 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). A scheme of assessments on physicians and hospitals to fund the plan is set forth in section 766.314. Section 766.316 [2] requires that "[e]ach hospital with a participating physician on its staff and each participating physician"—subject to certain exceptions not relevant here—"shall provide notice to the obstetrical patients ......

...losed 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. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311....

...Although the text of NICA has no express provision on this point, an essential feature of the statutory scheme as it has been implemented is that the availability of immunity under section 766.303(2) is contingent on the giving of notice pursuant to section 766.316....

...ertified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. (c) How much compensation, if any, is awardable pursuant to s. 766.31....

...ething NICA gave him no authority to do and failed to do what the statute required him to do. There is no basis in NICA for the ALJ's foray into the issue of immunity from tort liability under section 766.303(2) and the related issue of notice under section 766.316....

...Since the adoption of the 1998 amendments, NICA is very clear that the determination of whether an injury is compensable is exclusively *456 within the province of the ALJ, see § 766.304, Fla. Stat. (Supp.1998)—subject, of course, to the right to pursue an appeal of the ALJ's determination, see § 766.311, Fla....

...The issue of immunity from tort liability and the related issue of notice are an entirely different matter. There is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine either (a) that notice under section 766.316 was or was not properly given, or (b) that a provider is or is not entitled to invoke the immunity from tort liability provided for in section 766.303(2)....

...rt liability. See Galen, 696 So.2d at 309-11. Thus, the provision of notice has no bearing whatsoever on whether a claim is compensable. The availability of compensation under the plan is alike available to claimants who received proper notice under section 766.316 and to claimants who did not receive such notice....

...ion must then be made concerning whether that civil action is "in violation of the exclusiveness of remedy provisions of s. 766.303." § 766.304. That determination concerning tort immunity will turn on whether proper notice was given as required by section 766.316....

...Those amendments, which took effect on July 1, 1998, "apply only to [administrative NICA] claims filed on or after that date and to that extent ... apply retroactively regardless of the date of birth." Ch. 98-113, § 6, at 814-15, Laws of Fla. [2] Section 766.316 was also amended in 1998. See § 766.316, Fla....

...ital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. § 766.309(1)(b), Fla. Stat. (1999). See also § 766.31, Fla....

...[2] In this case, Morton Plant Hospital was not a teaching hospital. In addition, the nurse midwives in this case had not paid assessments to NICA. If they had, they would be treated like "participating physicians" *1012 because they were "supervised by a participating physician." See § 766.314(4)(c), Fla....

...The administrative law judge interpreted the statute to require the participating physician to "deliver" a baby, rather than to "deliver" obstetrical services in the course of the "delivery" of a baby. Moreover, the administrative law judge mistakenly concluded that the language in section 766.314(4)(c), which treats a participating nurse midwife like a participating physician, prevented a physician who supervised a nonparticipating midwife from "delivering" services during the delivery of the baby....

...Indeed, a consultation like the one held in this case may expose a physician to liability if negligently performed. See, e.g., Tysinger v. Smisson, 176 Ga.App. 604, 337 S.E.2d 49 (1985). [5] The involvement of a nurse midwife in this case tends to unnecessarily confuse the analysis. Section 766.314(4)(c) provides, in part, that a nurse midwife may become a "participating physician" if supervised by a participating physician....

...Hypothetically, if the participating physician had been called by a nonparticipating physician for a consult about the decision to administer Pitocin, the legal issue would be the same, without the confusion created by the involvement of the midwife and section 766.314(4)(c)....

...evidence regarding only whether obstetrical services were delivered by a participating physician. Therefore, the administrative law judge made no finding as to whether the injury suffered by the infant was a "birth-related neurological injury." [3] Section 766.314(4)(c), Florida Statutes (1999) provides, in part: Participating physicians include any certified nurse midwife who has paid 50 percent of the physician assessment required by this paragraph and paragraph (5)(a) and who is supervised b...

...The purpose of this plan, as expressed by the Legislature, is to provide compensation, on a no-fault basis, for birth-related neurological injuries. The compensation plan is the exclusive remedy for such injuries, and limits recovery to $100,000. See § 766.303, Fla. Stat. (2003); § 766.31(1)(b)1., Fla....

...n medical treatment in a statutory scheme, it has specifically provided for payment of such expenses in the statutory language. As examples, the Malu panel cited to the statutory scheme that provided benefits for birth-related neurological injuries, section 766.31(1)(a), Florida Statutes (2002), and a workers' compensation statute that was repealed in 1993, section 440.13(6), Florida Statutes (1993)....

...elated neurological injuries, and (2) to have been delivered by a participating physician. §§ 766.303, 766.309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and physicians in the state of Florida. § 766.314....

...However, "before an obstetrical patient's remedy is limited by the NICA plan, the patient must be given pre[ ]delivery notice of the health care provider's participation in the plan." Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997); see also § 766.316 ("Each hospital with a participating physician on its staff and each participating physician ......

...certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. (c) How much compensation, if any, is awardable pursuant to s. 766.31....

...a party to give notice, the ALJ also lacks jurisdiction to determine any issue related to notice, including the legal question of what notice is sufficient and the factual issue of whether notice was given. All Children's Hosp., 863 So.2d at 456-57. Section 766.31 specifically states that if the ALJ determines that the injury is a birth-related neurological injury and that the delivering physician is a participant in the Plan, he shall award compensation....

...NOTES [1] During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads: (4) If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31....

...his or her case and then seeking benefits under NICA. The court explained: We first address the issue of whether the receipt of compensation by a "NICA baby" from a source other than NICA "would thwart the purpose of the plan." It clearly does not. Section 766.31(1)(a), Florida Statutes (Supp.1988), recognizes that a NICA infant may receive compensation from other sources, such as state and federal governments and health insurance....

...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....

...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....

...Bay Area Signs, 639 So.2d 1114, 1115-16 (Fla. 1st DCA 1994). Under NICA, an injured infant or his personal representative may seek compensation under NICA by filing a claim for compensation with the DOAH within five years of the infant's birth. See §§ 766.302(3), 766.305(1), & 766.313, Fla....

...[7] For the foregoing reasons, we conclude that the ALJ erred in applying the 1998 amendment to section 766.304, Florida Statutes (1998), to bar the Romines' claim. We remand this matter to the DOAH for further proceedings consistent herewith. REVERSED AND REMANDED. SHARP, W., and GRIFFIN, JJ., concur. NOTES [1] In section 766.315, Florida Statutes, the Legislature created the Florida Birth-Related Neurological Injury Association (NICA), the appellee, to administer NICA. See §§ 766.315, 766.302, Fla....

...The issue of whether NICA would be required to reimburse Mrs. Carreras for this treatment was heard before the State of Florida, Division of Administrative Hearings. It was the claimant's position that reimbursement was warranted since the treatment was "medically necessary and reasonable." § 766.31(1)(a), Fla....

...The hearing officer concluded that the treatment was not "medically necessary and reasonable," and therefore, denied the claimant's request for reimbursement. This appeal follows. The claimant contends that the hearing officer erred in concluding that, pursuant to Section 766.31(1)(a), Florida Statutes (1993), the treatment was not "medically necessary and reasonable." We agree....

...Department of Administrative Hearings, 29 So.3d 992 (Fla. 2010), the Florida Supreme Court held that, to be entitled to NICA protections, both a participating physician and a hospital with a participating physician on its staff, were required to provide notice under section 766.316, Florida Statutes (2009)....

...The plain language of section 766.303(2) bars double recovery for a compensable injury under NICA. See also § 766.304, Fla. Stat. (2009) ("If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under § 766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of § 766.303."); Fla....

...expenses to obtain medical treatment, it has specifically made such expenses payable. In addition to so providing in our worker's compensation statute, Hunter, it also did so in our statutes providing benefits for birthrelated neurological injuries, section 766.31(1)(a), Florida Statutes....

...Plante and Tana D. Storey, of Brewton Plante, P.A., Tallahassee, for Appellees. LAWSON, J. The parents of a child with birth-related neurological injuries appeal an administrative order awarding them $100,000 jointly, in parental compensation, pursuant to section 766.31(1)(b)1., Florida Statutes (2007)....

...The Florida Birth-Related Neurological Injury Compensation Association ("NICA") agreed that MacKenzie's injuries were compensable under the plan. Pursuant to a stipulation between the parties, NICA agreed to pay expenses for MacKenzie's care pursuant to section 766.31(1)(a) and reasonable attorney's fees and other expenses pursuant to section 766.31(1)(c). The stipulation resolved the Samples' major claims except for the amount of parental compensation under section 766.31(1)(b)1. NICA agreed to make a lump sum payment of $100,000 to both parents jointly. However, the Samples reserved the right to have a hearing before an ALJ to raise the issue of the *21 interpretation and constitutionality of section 766.31(1)(b)1. The ALJ approved the stipulation and afforded the parties a hearing to offer any proof they perceived pertinent to the interpretation of section 766.31(1)(b)1....

...ther there are one or two parents involved in the claim. Such offer is subject to the subsequent approval of the ALJ. (2) Pursuant to Section 766.309, Florida Statutes, the ALJ must make all NICA Awards, which includes the parental award pursuant to Section 766.31(1)(b)1., Florida Statutes....

...Florida Birth-Related Neurological Injury Compensation Association, 1994 WL 1027875, DOAH Case No. 93-4268N (July 22, 1994). The ALJ entered a Final Order denying the Samples' claim for an additional $100,000 as part of the parental award. He found that the legislative history of section 766.31(1)(b)1....

..."both parents or legal guardians, and not for each parent or legal guardian." The ALJ allowed the parties to make arguments and present evidence on the constitutional issues but did not rule on them. Ambiguity On appeal, the Samples first argue that section 766.31(1)(b)1....

...McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). However, if a statutory provision is ambiguous — subject to more than one reasonable interpretation — courts may employ rules of construction and extrinsic aids to discern legislative intent. Id. Section 766.31(1)(B)1....

...Appellants' reliance on a rule of statutory construction as a basis for finding an ambiguity places the proverbial "cart before the horse" — because rules of statutory construction are designed to be applied only after a statute is found to be ambiguous, to resolve the ambiguity. Here, the plain language of section 766.31(1)(b)1....

...arising out of or related to a medical negligence claim with respect to such injury." [1] Without conceding that the statute is ambiguous or that this court need resort to statutory construction, [2] NICA notes that *23 the legislative history clearly establishes that the Legislature intended a single award to parents. When section 766.31(1)(b) was enacted, it used the singular terms "parent or legal guardian." Ch. 88-1, Laws of Fla.; § 766.31(1)(b), Fla. Stat. (1988). In 1989, the Legislature changed these terms to "parents or legal guardians." Ch. 89-186, § 5, Laws of Fla.; § 766.31(1)(b)1., Fla....

...Comm., CS for CS for HB 339, Final Staff Analysis (June 30 1989) (on file with Fla. State Archives). Clearly, the Legislature intended the statute to provide a single award of up to $100,000 for both parents. Constitutional Challenges The Samples challenge section 766.31(1)(b)1....

...ionship to a legitimate government objective. Id. Conversely, a statutory classification violates equal protection if it treats similarly situated people in a different manner based upon an illogical and arbitrary basis. Id. As the party challenging section 766.31(1)(b)1., as applied, on equal protection grounds, the Samples bear the burden to show that (1) they were treated differently under the law from similarly situated persons, (2) that the statute intentionally discriminates against them, and (3) that there was no rational basis for the discrimination....

...Such a categorization *25 offends the fundamental notion of equal justice under the law and can only be described as purely arbitrary and unrelated to any state interest. Id. at 972 (citation omitted). 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....

...("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."). It seems apparent from the language of the statute that the parental award in section 766.31(1)(b)1....

...is primarily intended to compensate parents for the added burdens and costs of providing care for a child with permanent and severe neurological injuries, not as damages to make parents whole for the loss of consortium negligently caused, as in a traditional tort action. [3] Furthermore, the classification of "parents" in section 766.31(1)(b)1....

...epending on how many children or other claimants exist. Thus, the legislative classification in this case is well-defined and narrowly drawn when compared to the classification in St. Mary's Hospital . Based upon these two distinctions, we find that section 766.31(1)(b)1....

...The Legislature expressly stated that it intended to provide a " limited system of compensation...." § 766.301(d), Fla. Stat. (2007) (emphasis added). The Plan also contains specific provisions relating to actuarial soundness. For example, on the assessment side of the equation, sections 766.314(5)(b) and (c) provide that if existing assessments are insufficient to maintain the NICA fund on an "actuarially sound" basis, additional appropriations are authorized. On the compensation side, section 766.314(9)(c) provides that if funds on hand are insufficient to cover anticipated expenses, NICA "shall not accept any new claims without express authority from the Legislature." If a claim is not accepted because of the above provision, the Plan ceases to be the exclusive remedy. § 766.314(9)(d), Fla....

...y intelligence with a reasonable opportunity to know what is prohibited, and is written in a manner that encourages or permits arbitrary or discriminatory enforcement." Cashatt v. State, 873 So.2d 430, 435 (Fla. 1st DCA 2004). The Samples argue that section 766.31(1)(b)1....

...NICA argues that the Samples appear to be asserting a facial vagueness challenge. "[A] facial challenge for vagueness will be upheld only if the enactment is impermissibly vague in all of its applications." Brown v. State, 629 So.2d 841, 843 (Fla.1994); Cashatt, 873 So.2d at 434. Section 766.31(1)(b)1....

...te offers no guidance to an ALJ on how much to award parents, how to divide an award between parents or whether to authorize the award in lump sum or periodic payments. However, the above-cited final orders actually support our conclusions that: (a) section 766.31(1)(b)1....

...Likewise, in Waddell, the ALJ ordered periodic payments to the mother, as the custodial parent, "absent a change in the custodial arrangement." [4] In addition, both final orders contained extensive factual findings and well-articulated reasoning. And, both were subject to judicial review pursuant to section 766.311. Florida Statutes. Accordingly, we conclude that section 766.31(1)(b)1., when read in pari materia with other NICA provisions, is sufficiently clear in its intent to provide no-fault economic compensation to parents....

...ported by detailed factual findings. Section 766.304, Florida Statutes, affords the ALJ all powers authorized under the APA, including conducting an evidentiary hearing to determine the proper amount, division and distribution of the parental award. Section 766.311 provides the right of judicial review. [5] 3. Access to Courts The Samples also claim that section 766.31(1)(b)1....

...In discussing this element, the court in Echarte stated, "in determining whether no alternative means exists to meet the public necessity of ending the medical malpractice crisis, the plan as a whole, rather than focusing on one specific part of the plan, must be considered." Id. at 197. Thus, the Samples mistakenly focus on section 766.31(1)(b)1....

...d Tort Systems, demonstrated that no alternative means existed to meet the public necessity. Id. at 197. The same reasoning applies in the instant case. Accordingly, we conclude that the statute also satisfies the second Kluger exception. Conclusion Section 766.31(1)(b)1....

...Mary's Hospital precedent distinguishable, we acknowledge that the statutes are analogous enough that our supreme court may view the issue differently. We also believe that the issue is one of great public importance, and as such certify the following question to the Florida Supreme Court: Does the limitation in section 766.31(1)(b)1., Florida Statutes, of a single award of $100,000 to both parents violate the Equal Protection Clause of the United States and Florida Constitutions? AFFIRMED; QUESTION CERTIFIED....

...1 As is true of many physicians working at Jackson Memorial, the doctors are at least arguably employed both publicly by the PHT and privately by UM. 3 in addition to attorney’s fees and future medical care costs. See § 766.31, Fla. Stat. (1998). The ALJ also specifically found that the PHT had provided the plaintiffs with notice that it participated in the NICA plan, as required by section 766.316 of the Florida Statutes (1998) (“NICA’s Notice Provision”), but that Drs....

...2007). 4 Provision”), which mandates compensation from the Association as the exclusive remedy for injuries found to be compensable under NICA. Further, UM argued that because it is not a participating hospital or doctor, it was not required to give notice under section 766.316 and should therefore be immune from suit....

...ensable. If the claim is found to be compensable under the requirements and definitions established throughout NICA, the ALJ must award actual expenses for medically necessary and reasonable medical care and related costs for the child’s lifetime, § 766.31(1)(a), a payment to the child’s parents of up to $100,000 if living or $10,000 if deceased, § 766.31(1)(b), and reasonable expenses incurred in filing the NICA claim, including attorney’s fees, § 766.31(1)(c)....

...notice that the doctors and/or hospitals participate in the NICA plan so the patients are aware they may be waiving their right to civil suit in the event of a birth-related neurological injury. NICA’s Notice Provision provides in full: 766.316....

...Notice to obstetrical patients of participation in the plan Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries....

... presumption that 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. § 766.316. Although NICA’s Notice Provision makes no reference to NICA’s Immunity Provision or discusses waiver of immunity in the statute itself, it is now well-established Florida law that a party who is required to give notice under...

...NICA’s Notice Provision and fails to do so waives its right to assert the exclusivity of remedies defense provided in NICA’s Immunity Provision. Galen of Fla., Inc. v. Braniff, 696 So. 2d 308, 309-10 (Fla. 1997). Further, due to the inclusion of the conjunctive word “and” in section 766.316, the Florida Supreme Court has interpreted NICA’s Notice Provision to require independent notice from both participating physicians and participating hospitals—notice by one does not satisfy the notice requirement for the other....

...waiver of the NICA immunity to which it would otherwise be entitled by virtue of the party’s direct involvement in the labor and delivery. Because only hospitals with participating physicians and participating physicians themselves are required to give such notice, § 766.316, only those two categories of people could ever waive NICA immunity when they are directly involved in the labor and delivery. Every other person or entity directly involved in the labor and delivery is entitled to immunity that cannot be waived regardless of any notice that is or is not provided. C....

...2d at 309-10. UM is neither a “hospital with a participating physician on its staff” nor a “participating physician,” and it is therefore not required to give notice of NICA participation under the terms of NICA’s Notice Provision. See § 766.316 (“Each hospital with a participating physician on its staff and each participating physician, ....

...Thus, because the plaintiffs’ vicarious liability claim is not premised on UM’s “direct involvement” in the labor and delivery giving rise to the injury, UM is unable to invoke NICA’s Immunity Provision. The fact that UM has no obligation to provide notice of NICA participation, § 766.316, and therefore could not possibly waive any immunity to which it was entitled, is irrelevant because UM cannot invoke NICA immunity for its indirect involvement in the labor and delivery in the first place. We therefore hold that...

...ess under Wisconsin law. The parties suggested that Wisconsin is a community property state, and that the exemption therefore is not authorized under Wisconsin law. In Wisconsin, all property of spouses is presumed to be marital property. Wis. Stat. § 766.31....

...h renders the infant permanently and substantially mentally and physically impaired. 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. Under the NICA statute, the financial benefits include expenses for care and treatment, as well as periodic payments to the parents or guardians. Id. § 766.31(1)(a), (b). The funds for these financial benefits are obtained from assessments on physicians and hospitals. Id. § 766.314....

...sician 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....

...The time limitations imposed by the claimant or the circumstances. 4. The nature and length of the professional relationship with the claimant. 5. The experience, reputation, and ability of the lawyer or lawyers performing services. 6. The contingency or certainty of a fee. Section 766.31(1), Fla....

...onable award and will further the purpose of the fee-authorizing statute, only the enumerated factors may be considered. Schick v. Department of Agriculture & Consumer Serv's, 599 So.2d 641, 643-44 (Fla. 1992) (footnote omitted). In the present case section 766.31 enumerates the factors to be considered. [4] The JCC confined his attention to the statutory factors, and was correct in doing so. We note that one of the statutory factors to be considered is the "contingency or certainty of a fee." § 766.31(1)(c)(6), Fla....

...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... ." § 766.31(1)(c), Fla....

...[5] NICA next contends that the award of $300 per hour in this case was excessive and not supported by competent substantial evidence. We agree. The root of the difficulty originates in the JCC's finding regarding the "fee customarily charged in the locality for similar legal services." § 766.31(1)(c)(2), Fla....

...Claimants asserted, among other things, that a higher fee was justified because this was one of the first cases processed through the NICA system. They argued that this justified enhancement of the hourly rate under the portion of the statute referring to the "novelty and difficulty of the questions involved... ." § 766.31(1)(c)(1), Fla....

...ely 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... ." § 766.31(1)(c), Fla....

...nection with the petition. Plainly, the exploration of the possibility of opting out of NICA through the "bad faith" exception or otherwise [8] is not, as the statute *1110 requires, work performed "in connection with the filing of a claim... ." Id. § 766.31(1)(c)....

...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......

...Department of Administrative Hearings, 29 So.3d 992 (Fla. 2010), the Florida Supreme Court held that, to be entitled to NICA protections, both a participating physician and a hospital with a participating physician on its staff, were required to provide notice under section 766.316, Florida Statutes (2009)....

...The plain language of section 766.303(2) bars double recovery for a com-pensable injury under NICA. See also § 766.304, Fla. Stat. (2009) (“If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under § 766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of § 766.303.”); Fla....

...finality because it is an ancillary or collateral issue. The appellants' reading of the order fails to recognize the distinction between "actual expenses" arising from a compensable injury, which comprise the element of compensation provided for in section 766.31(1)(a), and "reasonable expenses" that are incurred in connection with bringing the claim, which comprise a separate element of compensation provided for in section 766.31(1)(c)....

...Therefore, we reject the appellants' argument that there is no need to make a determination as to the amount of the award of previously incurred expenses. Similarly, upon distinguishing "actual expenses" and "reasonable expenses" it is clear that an award of compensation under section 766.31(1)(a) is not an ancillary or collateral issue. We do not reach the question of whether an award under section 766.31(1)(c) is an ancillary or collateral issue....

...of this matter in Circuit Court without court approval." The Hospital argued further that a determination about the child's best interests "cannot be made without determining the amount of compensation [the Plan] will provide pursuant to Fla. Stat. § 766.31 [(2004)] (`a bird in the hand') versus pursuing a civil suit against [the Hospital] in Circuit Court with all its contingencies and uncertainty." Following a hearing, the circuit court entered an order denying the Andersons' motion to lift abatement....

...ry.... (b) Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.... (c) How much compensation, if any, is awardable pursuant to s. 766.31....

...n. See Weinstock v. Houvardas, 924 So.2d 982, 985 (Fla. 2d DCA 2006) (holding "that under the 2003 Act, the ALJ has exclusive jurisdiction to determine whether notice of a health provider's participation in NICA was properly given in accordance with section 766.316")....

...cate the proceedings. Section 766.309(4) provides as follows: If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31....

...rsue their civil claim against the Hospital. But the ALJ has already determined that the Hospital is not entitled to assert the exclusivity of remedy provision of the Plan under section 766.303 because it failed to provide the requisite notice under section 766.316....

...[2] Effective May 2, 2006, the legislature amended section 766.309(1) to add subsection (d), which specifically provides that the ALJ shall determine "[w]hether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s. 766.316 are satisfied....

...On August 22, 2007, NICA filed its motions for clarification of the 1995 and 1999 final orders. In the motions and at the hearing held in October 2007, NICA argued that the DOAH administrative law judge (ALJ) had jurisdiction to enforce the final orders pursuant to section 766.312, Florida Statutes (2007), and jurisdiction to interpret and clarify those final orders....

...The Parents requested attorneys’ fees and costs for having to defend against NICA’s motions. In October 2007, the ALJ entered orders that purported to clarify the 1995 and 1999 final orders. The ALJ also denied the Parents’ motions for attorneys’ fees and costs. Section 766.312 provides the ALJ with authority to “enforce” awards....

...costs, which were filed pursuant to several statutes. Because we are reversing the ALJ’s clarification orders, we remand for the ALJ to reconsider the motions for fees and costs. The ALJ denied the Parents’ motions for fees and costs pursuant to section 766.31(l)(c). That section provides for the recovery of “[reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney’s fees.” NICA’s motions for clarification were directed to the final orders that approved the Parents’ claims for benefits, and as a result of the motions, the Parents incurred expenses....

...The ALJ struck the Parents’ motions for fees and costs under section 57.105, Florida Statutes (2007), and denied the Parents’ motions for fees and costs under section 120.569(2)(e), Florida Statutes (2007). Because of our decision that the Parents’ are entitled to recover their fees and costs under section 766.31(l)(c), their claims for fees and costs under sections 57.105 and 120.569(2)(e) may be moot....

financial benefits without regard to fault. Id. § 766.31. CLAIMANTS FOR NICA BENEFITS Section 766.302(3)

...rative law judge (“ALJ”) on a petition for benefits filed by appellees/cross-appellants, Bassam and Rayya Abifaraj, pursuant to *1128 the Florida Birth-Related Neurological Injury Compensation Plan (“NICA plan”) contained in sections 766.301-766.316, Florida Statutes (1997)....

...ether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital,” and (c) “[h]ow much compensation, if any, is awardable,” pursuant to section 766.31. The ALJ also has jurisdiction to make factual findings concerning whether the notice requirement found in section 766.316 2 has been satisfied....

...sed tvhere there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard for 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. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311....

...Although the incident giving rise to appel-lees' claim, Samer’s birth, occurred in 1997, the 1998 amendment applies retroactively to all NICA plan claims filed after July 1, 1998, regardless of the date of birth. See Ch. 98-113, § 6, at 814-15, Laws of Fla. . Section 766.316, Florida Statutes (1997), provides, that "[e]ach hospital with a participating physician on its staff and each participating physician ......

...Appellant, Erica McDonald, appeals a final order in which the administrative law judge (“ALJ”) determined that her claim filed under Florida’s Birth-Related Neurological Injury Compensation Plan (“NICA Plan” or “Plan”) was compensable but time-barred under section 766.313, Florida Statutes (2015), and that Appellees, Florida Health Sciences Center, Inc. d/b/a Tampa General Hospital (“Tampa General”) and the University of South Florida Board of Trustees (“USF”), provided her with adequate notice of their participation in the Plan. This court has jurisdiction. See § 766.311(1), Fla....

...order finding that while Appellant’s claim was compensable, it was time-barred and that, as a result, dismissal with prejudice was appropriate. The ALJ agreed that Appellant’s claim was compensable under the NICA Plan but time-barred pursuant to section 766.313 and explained in part: Before compensation may be awarded under the NICA Plan, in addition to section 766.309(1), the ALJ must determine in section 766.316 whether: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the [NICA] Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. At this time, the factual questions in section 766.316 remain to be determined, as well as their ramifications on Petitioner’s rights and remedies with respect to [the child’s] injury....

.... 2  In their subsequent motion for partial summary final order, Tampa General and USF argued that the notice they provided to Appellant of their participation in the NICA Plan met the statutory requirements of section 766.316....

...Appellant also received a second notice on each of those visits, which provided in part as follows: I have been furnished information in the form of a brochure prepared by the Florida Birth-Related Neurological Injury Compensation Association (NICA), pursuant to Section 766.316, Florida Statutes, by the physicians[] of the University of South Florida Department of Obstetrics and Gynecology (USF OB/GYN)....

...otice forms to Appellant. In the final order, the ALJ explained that the “sole (remaining) issue to be determined in this matter is whether Intervenors, Tampa General and USF/Dr. Brown, complied with the NICA notice requirements set forth in section 766.316....

...As to the issue of whether Dr. Brown had an obligation to personally provide Appellant with notice of her NICA participation, the ALJ concluded that the approach USF used to inform Appellant of Dr. Brown’s participation in NICA met the requirements of section 766.316....

...losed 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. Stat. (2015). Because NICA remedies are limited, obstetric patients are entitled to receive pre-delivery notice of their rights and limitations under the Plan. Id. Section 766.316, Florida Statutes (2015), which is entitled “Notice to obstetrical patients of participation in the plan,” provides: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth- related neurological injuries....

...ild with birth-related neurological injuries.”) (Emphasis added). Pursuant to section 766.309(1)(d), Florida Statutes (2015), ALJs “ha[ve] the exclusive jurisdiction” to make “factual determinations regarding the notice requirements in s. 766.316.” The ALJ in this case appropriately ruled on the issue of notice after determining that Appellant’s claim was compensable though time- barred because if Appellees provided Appellant sufficient notice of their participation in NICA, then Appellant’s exclusive remedy was through NICA....

...m civil liability”); see also Jackson, 932 So. 2d at 1127. This is precisely why the notice issue is pivotal to the parties’ case. The only issues Appellant raises on appeal are that the ALJ erred in concluding that Dr. Brown complied with section 766.316’s requirement that she notify Appellant of her participation in NICA and in determining that Appellant did not overcome the rebuttable presumption provided for in section 766.316 because she failed to show that the notice she was given was insufficient....

...cipating physicians be set forth in a written notice.” Id. 8  Appellant argues that this court should decline to follow Jackson for two reasons, one of them being that it conflicts with the plain language of section 766.316 that “each participating physician” provide notice to patients....

...Neurological Injury Compensation Association, in which the court answered in the negative the certified question of whether “a physician’s predelivery notice to his or her patient of the [NICA] plan and his or her participation in the plan satisfy the notice requirements of section 766.316 . . . if the hospital where the delivery takes place fails to provide notice of any kind.” 29 So. 3d at 994. The court held that “in order to satisfy the notice requirements of section 766.316, Florida Statutes (1997), both participating physicians and hospitals with participating physicians on staff must provide obstetrical patients with notice of their participation in the plan.” Id....

...at 994–95. As Appellees contend, Appellant’s reliance upon Florida Birth-Related Neurological Injury Compensation Association is misplaced. The supreme court in that case did not address the issue of whether a catch-all phrase is sufficient under section 766.316 to notify patients of all of a medical group’s physicians’ participation in the Plan....

...behalf of another institution’s physicians. The only issue addressed in that case was whether a physician’s notification excuses a hospital from providing its own notice of NICA participation. As the supreme court determined, that is clearly not permitted under section 766.316. In this case, USF provided Appellant with notice that all of its physicians were NICA participants. By virtue of Dr. Brown’s employment with USF in September 2015, that notice met the statutory requirements of section 766.316....

...da OB/GYN umbrella.”). Appellant’s arguments that USF’s notice was insufficient because Tampa General’s employees provided it to her or that Dr. Brown should have personally provided notice to her are meritless. There is no language in section 766.316 requiring a physician to personally notify a patient of his or her NICA participation....

...inadequate to satisfy the University physicians’ independent obligation to provide notice.”). Here, Tampa General’s witnesses testified that Appellant was twice provided with a NICA notice on behalf of USF. This constituted sufficient notice under section 766.316. Lastly, appellant argues that she overcame the rebuttable presumption provided for in section 766.316 by showing that the notice she was given was insufficient....

...§ 766.309(1), Fla. Stat. (requiring that the “[ALJ] shall make the following determinations based upon all available evidence: . . . (d) Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s. 766.316 are satisfied.”). In turn, the ALJ issued a straightforward order concluding that “Petitioner’s Petition is time-barred pursuant to section 766.313 but is otherwise compensable under the NICA Plan.” This is an appealable “final order on compensability and notice” that Appellant had an explicit statutory right to appeal....

...ological injuries, and Appellees would have been unable to invoke NICA as Appellant’s exclusive remedy. See Fla. Birth-Related Neurological Injury Comp. Ass’n, 29 So. 3d at 994; Jackson, 932 So. 2d at 1127. 11 § 766.311, Fla....

...V, § (4)(c) (“District courts of appeal shall have the power of direct review of administrative action, as prescribed by general law.”). On the merits, Appellant asked us to reverse based upon a substantively peripheral notice-requirement issue. See § 766.316, Fla. Stat. (requiring notice to patients of participation in the Plan). But the notice issue provides no basis for reversing the ALJ’s disposition because Appellant’s claim is time-barred. See § 766.313, Fla....

...Florida Statutes. She sought reimbursement of medical expenses and payment of benefits out of a public fund the Legislature established for such injuries under the Florida Birth-Related Neurological Injury Compensation Plan (the “Plan”). See §§ 766.303, 766.31, 766.314, Fla....

...under this act is compensable”). In other words, McDonald would have no right to an award out of the Plan’s fund unless an ALJ—rather than a court vested with judicial power under Article V—makes the determination regarding entitlement. See § 766.31(1), Fla....

...a participating physician at the birth, the administrative law judge shall make an award providing compensation. . . .”); see also § 766.309(4), Fla. Stat. (allowing ALJ to address compensability in one final order, subject to appeal, and to issue later an award under section 766.31, Florida Statutes). 3 See Art....

...entities other than Article III courts”). Another condition the Legislature set on the public right to compensation from the Plan’s fund is a requirement that a claim to that compensation be filed within five years of the injured child’s birth. See § 766.313, Fla....

...judge has final order authority” if “there is no genuine issue as to any material fact” and allowing an ALJ to render such an order if “the 4 Formally named the “Florida Birth-Related Neurological Injury Compensation Association.” § 766.315, Fla....

...Even though the ALJ determined in a summary final order that compensation may not be awarded under the Plan (because it was time-barred), he explained that “[b]efore compensation may be awarded under the NICA Plan . . . the ALJ must determine” whether the notice required by section 766.316, Florida Statutes, was provided....

...o [the child’s] injury.” An evidentiary hearing ensued, followed by another final order from the ALJ, this one determining that both participating healthcare providers gave McDonald “adequate notice” in compliance with the “requirements of section 766.316.” The disposition was (once again) that McDonald’s claim “is time- barred,” but that it was “otherwise compensable under the NICA Plan.” (emphasis supplied). Both the SFO and the later final order cite to University of Miami v....

...Exposito ex rel. Gonzalez, 87 So. 3d 803 (Fla. 3d DCA 5 The notice healthcare providers are required to give patients under the Plan is to inform those patients “as to the limited no- fault alternative for birth-related neurological injuries.” § 766.316, Fla....

...idence:” a) whether the claimed injury meets the definition of BRNI; b) whether the delivering provider was a “participating physician” under the Plan; c) how much compensation is awardable, if any; and d) whether “the notice requirements in s. 766.316 are satisfied.” At first glance, one might assume (as the Third District apparently did), that the statute tasks the ALJ with adjudicating certain facts in the place of a circuit court, regardless of whether there is a viable claim....

...ice” within the executive branch, as assigned by the Legislature—gatekeeper of the Plan’s fund—so the exercise of quasi-judicial power expected under this statutory provision is fine under the constitution. See Art. V, § 1, Fla. Const.; cf. § 766.31(1), Fla....

...related neurological injury shall exclude all other rights and remedies . . . .”); § 766.304, Fla. Stat. (“If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under s. 766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s....

...for the claimant by the Legislature: the statute then “shield[ing providers] from a civil tort action based upon the same claim.” NICA v. DOAH, 948 So. 2d at 711. For a provider to receive the benefit of this exclusivity, however, the notice requirements of section 766.316 must have been satisfied. See id. (explaining that compliance with the notice requirement of section 766.316 “is a condition precedent to NICA’s 19 exclusivity”); see also Galen of Fla., Inc....

...ust, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery”). Enter the fourth determination the ALJ may make under section 766.309(1): whether “the notice requirements in s. 766.316 are satisfied.” The ALJ—having determined the claimant does have a public right to compensation under the Plan—may, at the direction of the Legislature, adjudicate the factual question of notice—if raised—because the adjudication will affect the exclusivity of any award the ALJ then makes....

...(emphasis supplied)); O’Leary, 757 So. 2d at 627 (“The language used by the legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim.”); id. at 628 (“We also note that a section 766.316 notice issue is peculiar to a NICA claim.”). 25 authority of the deputy commissioner as an administrative agency, the court is under no obligation to give weight to his proceedings pending the dete...

...jurisdictional question whether a private right has been extinguished. Our authority as a district court of appeal to engage in judicial review of administrative action is limited to what general law provides. See Art. V, § 4(b)(2), Fla. Const. Even though, as the chief notes, section 766.311 authorizes direct review of an ALJ’s order by appeal to a district court of appeal, for us to bring our appellate judicial power to bear on such an order, there nevertheless must be a “party who is adversely affected by” it....

...ty because it is an ancillary or collateral issue. The appellants’ reading of the order fails to recognize the distinction between “actual expenses” arising from a compen-sable injury, which comprise the element of compensation provided for in section 766.31(l)(a), and “reasonable expenses” that are incurred in connection with bringing the claim, which comprise a separate element of compensation provided for in section 766.31(l)(c)....

...Therefore, we reject the appellants’ argument that there is no need to make a determination as to the amount of the award of previously incurred expenses. Similarly, upon distinguishing “actual expenses” and “reasonable expenses” it is clear that an award of compensation under section 766.31(l)(a) is not an ancillary or collateral issue. We do not reach the question of whether an award under section 766.31(l)(c) is an ancillary or collateral issue....

...ological Injury Compensation Plan (the Plan). We have for review the decision of the Fifth District Court of Appeal in Samples v. Florida Birth-Related Neurological, 40 So.3d 18 (Fla. 5th DCA 2010). The Fifth District upheld the constitutionality of section 766.31(l)(b)l, Florida Statutes (2010), which provides for an award not exceeding $100,000 to the parents or legal guardians of an infant found to have sustained a birth-related neurological injury....

...The court held that the statute does not violate equal protection, is not void for vagueness, and does not violate the Samples’ right to access the courts. The Fifth District certified the following question to be of great public importance: Does the limitation in section 766.31(l)(b)l., Florida Statutes, of a single award of $100,000 to both parents violate the Equal Protection Clause of the United States and Florida Constitutions? Id....

...The Florida Birth-Related Neurological Injury Compensation Association (“NICA”) agreed that MacKenzie’s injuries were compensable under the plan. Pursuant to a stipulation between the parties, NICA agreed to pay expenses for MacKenzie’s care pursuant to section 766.31(l)(a) and reasonable attorney’s fees and other expenses pursuant to section 766.31(l)(c). The stipulation resolved the Samples’ major claims except for the amount of parental compensation under section 766.31(l)(b)l. NICA agreed to make a lump sum payment of $100,000 to both parents jointly. However, the Samples reserved the right to have a hearing before an [administrative law judge (ALJ) ] to raise the issue of the interpretation and constitutionality of section 766.31(l)(b)l. The ALJ approved the stipulation and afforded the parties a hearing to offer any proof they perceived pertinent to the interpretation of section 766.31(l)(b)l....

...there are one or two parents involved in the claim. Such offer is subject to the subsequent approval of the ALJ. *915 (2) Pursuant to section 766.309, Florida Statutes, the ALJ must make all NICA Awards, which includes the parental award pursuant to section 766.31(l)(b)l., Florida Statutes....

...Florida Birth-Related Neurological Injury Compensation Association, 1994 WL 1027875 , DOAH Case No. 93-4268N (July 22, 1994). The ALJ entered a Final Order denying the Samples’ claim for an additional $100,000 as part of the parental award. He found that the legislative history of section 766.31(l)(b)l....

...for each parent or legal guardian.” The ALJ allowed the parties to make arguments and present evidence on the constitutional issues but did not rule on them. Samples, 40 So.3d at 20-21 . The Samples appealed the ALJ’s final order, claiming that section 766.31(l)(b)l (the “parental award provision”) was ambiguous and challenging the provision on three constitutional grounds: equal protection, vagueness, and access to courts....

...The parental award provision provides for “[pjeriodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum.” § 766.31(l)(b)l, Fla....

...�� Samples, 40 So.3d at 22 . The plain language of the parental award provision clearly states that a singular “award” shall be paid to the plural “parents or legal guardians” of an injured child, “which award shall not exceed $100,000.” § 766.31(l)(b)l, Fla....

...lated neurological injuries, and (2) to havé been delivered by a participating physician. §§ 766.303, 766.309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and physicians in the state of Florida. § 766.314....

...However, “before an obstetrical patient’s remedy is limited by the NICA plan, the patient must be given pre[ jdelivery notice of the health care provider’s participation in the plan.” Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997); see also § 766.316 (“Each hospital with a participating physician on its staff and each participating physician ......

...certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. (c) How much compensation, if any, is awardable pursuant to s. 766.31....

...arty to give notice, the ALJ also lacks jurisdiction to determine any issue related to notice, including the legal question of what notice is sufficient and the factual issue of whether notice was given. All Children’s Hosp., 863 So.2d at 456-57 . Section 766.31 specifically states that if the ALJ determines that the injury is a birth-related neurological injury and that the delivering physician is a participant in the Plan, he shall award compensation....

...During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads: (4) If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31....

...On August 22, 2007, NICA filed its motions for clarification of the 1995 and 1999 final orders. In the motions and at the hearing held in October 2007, NICA argued that the DOAH administrative law judge (ALJ) had jurisdiction to enforce the final orders pursuant to section 766.312, Florida Statutes (2007), and jurisdiction to interpret and clarify those final orders....

...The Parents requested attorneys' fees and costs for having to defend against NICA's motions. In October 2007, the ALJ entered orders that purported to clarify the 1995 and 1999 final orders. The ALJ also denied the Parents' motions for attorneys' fees and costs. Section 766.312 provides the ALJ with authority to "enforce" awards....

...and costs, which were filed pursuant to several statutes. Because we are reversing the ALJ's clarification orders, we remand for the ALJ to reconsider the motions for fees and costs. The ALJ denied the Parents' motions for fees and costs pursuant to section 766.31(1)(c). That section provides for the recovery of "[r]easonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees." NICA's motions for clarification were directed to the final orders that approved the Parents' claims for benefits, and as a result of the motions, the Parents incurred expenses....

...The ALJ struck the Parents' motions for fees and costs under section 57.105, Florida Statutes (2007), and denied the Parents' motions for fees and costs under section 120.569(2)(e), Florida Statutes (2007). Because of our decision that the Parents' are entitled to recover their fees and costs under section 766.31(1)(c), their claims for fees and costs under sections 57.105 and 120.569(2)(e) may be moot....

...njury caused by oxygen deprivation during the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital.” It provided that Justin and his parents were entitled to receive an award of compensation pursuant to section 766.31, Florida Statutes (1995), because the obstetrical services were rendered by a “participating physician.” The administrative order directed that NICA make immediate payment to Justin of expenses previously incurred, as well as payments for future expenses as incurred, consistent with section 766.31(l)(a), Florida Statutes (1995). The order further stated that “[pjursuant to section 766.312, Florida Statutes, jurisdiction is reserved to resolve any disputes, should they arise, regarding the [parties’] compliance with the terms of this final order.” Thereafter, Dr....

...ermit the petition to proceed would thwart the purpose of the Plan. We first address the issue of whether the receipt of compensation by a “NICA baby” from a source other than NICA “would thwart the purpose of the plan.” It clearly does not. Section 766.31(l)(a), Florida Statutes (Supp.1988), recognizes that a NICA infant may receive compensation from other sources, such as state and federal governments and health insurance....

...However, the legislature did not incorporate an election of remedies clause like Virginia’s statute. In 1998, however, the legislature did amend section 766.304 to provide: 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....

...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....

...birth-related neurological injuries. Fla. Birth-Related Neurological Injury Comp. Ass'n v. Dep't. of Admin. Hearings, 29 So.3d 992, 995 (Fla. 2010). 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). Because NICA's remedies are limited, obstetric patients subject to limited compensation under NICA are entitled to receive pre-delivery notice of their rights and limitations under the Act. See § 766.316; see also Fla....

...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)....

...d a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation for the following items relative to such injury ... § 766.31(1) (emphasis added); see also Calixte v....

...sed 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. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in section 766.311....

...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. Stat. (2010). [2] Pursuant to section 766.316, Florida Statutes, each hospital with a participating physician on its staff and physicians deemed to be "participating physicians" under the Act are required to provide notice to their obstetrical patients "as to the limited no-fault...

...ments of NICA. See § 766.303, Fla. Stat. (1998). The ALJ determined that Michael’s injury was compensable under NICA and approved the statute’s maximum award of $100,000 in addition to attorney’s fees and future medical care costs. See § 766.31, Fla. Stat. (1998). The ALJ also specifically found that the PHT had provided the plaintiffs with notice that it participated in the NICA plan, as required by section 766.316 of 1 As is true of many physicians working at Jackson Memorial, the doctors are at least arguably employed both publicly by the PHT and privately by UM. 3 the Florida Statutes (1998) (herei...

...given the statutorily required notice of NICA participation to the patient. Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So. 2d 705, 717 (Fla. 2007). 4 to give notice under section 766.316 and should therefore be immune from suit. The plaintiffs responded by arguing that Drs....

...ensable. If the claim is found to be compensable under the requirements and definitions established throughout NICA, the ALJ must award actual expenses for medically necessary and reasonable medical care and related costs for the child’s lifetime, § 766.31(1)(a), a payment to the child’s parents of up to $100,000 if living or $10,000 if deceased, § 766.31(1)(b), and reasonable expenses incurred in filing the NICA claim, including attorney’s fees, § 766.31(1)(c)....

...notice that the doctors and/or hospitals participate in the NICA plan so the patients are aware they may be waiving their right to civil suit in the event of a birth-related neurological injury. NICA’s Notice Provision provides in full: 766.316....

...Notice to obstetrical patients of participation in the plan Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries....

...presumption that 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. § 766.316. 6The statute grants immunity to anyone “directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs,” but we will refer to this as “labor and delivery” for ease of referenc...

...NICA’s Notice Provision and fails to do so waives its right to assert the exclusivity of remedies in NICA’s Immunity Provision. Galen of Fla., Inc. v. Braniff, 696 So. 2d 308, 309-10 (Fla. 1997). Further, due to the inclusion of the conjunctive word “and” in section 766.316, the Florida Supreme Court has interpreted NICA’s Notice Provision to require independent notice from both participating physicians and participating hospitals—notice by one does not satisfy the notice requirement for the other....

...15 is neither a “hospital with a participating physician on its staff” nor a “participating physician,” and it is therefore not required to give notice of NICA participation under the terms of NICA’s Notice Provision. See § 766.316 (“Each hospital with a participating physician on its staff and each participating physician, ....

constitutionality [on equal protection grounds] of section 766.31(l)(b)l[, which grants a single award of 100k

...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....

...CA’s request *847 for recoupment or offset. The ALJ then denied Appellants’ motion for attorneys’ fees and costs, which is the subject of this appeal. Analysis This case involves the interpretation of the NICA-related attorneys’ fee statute, § 766.31, Fla....

...and custodial care benefits according to the process described above. The claim form that Appellants completed, which is an exhibit to the settlement agreement, specified that: “This claim form is being submitted for payment by NICA under Statute 766.31, F.S.” In this case, the parties did not resolve their custodial care benefits dispute between themselves, so Appellants—according to the process prescribed in the parties’ settlement agreement—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....

...re 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. § 766.31(l)(c), Fla....

...1 We understand NICA’s argument that we should affirm the ALJ’s denial of Appellants’ fees and costs because Appellants “were clearly not the prevailing party ... [and] NICA prevailed by any measure.” But this argument is not consistent with the language of the settlement agreement and statute. Section 766.31 does not address prevailing parties, but rather links liability for expenses with a final claim determination and award....

...Birth-Related Neurological Injury Comp. Ass’n v, Carreras, 633 So.2d 1103, 1106 (Fla. 3d DCA 1994) (addressing the calculation of NICA-related fees). WOLF, LEWIS, and OSTERHAUS, JJ., CONCUR. . Our opinion does not reach the issue of recoveries typically allowed under § 766.31, but is limited to the context presented here, where the parties agreed to resolve their disputed benefits issue using this statute's award-resolution regime.

...vation 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. The Legislature funds the Plan through budgetary appropriations plus assessments (read: taxes) on licensed hospitals and physicians. See § 766.314(1), (4), (5)(b), (c), (7), Fla. Stat.; see also Coy v....

...Birth-Related Neurological Injury Comp. Plan, 595 So. 2d 943, 944 (Fla. 1992). NICA adopts an operational plan, subject to approval by the Department of Financial Services, that provides for “assessments on an actuarially sound basis,” subject to certain limitations. § 766.314(1), Fla. Stat. The funds are to be used exclusively for the payment of “awards” made from the Plan and for expenses incurred to administer it. § 766.314(2)(a), (3), Fla....

...irrespective of fault, for birth-related neurological injury claims.”). Naturally, the funds under the Plan are state funds, and the Legislature waives sovereign immunity “solely to the extent necessary to assure payment of compensation” for BRNIs. §§ 766.303(3), 766.315(5)(f), 766.31(1), Fla. Stat. NICA administers “the payment of claims on behalf of the plan” and can “[t]ake such legal action as may be necessary to avoid payment of improper claims.” § 766.315(4)(b), (j), Fla....

...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. Stat. (defining “administrative law judge” and “division”); cf. § 766.312, Fla....

...If the ALJ determines that the claim is compensable—essentially, that the evidence shows that the injury suffered meets the definition of a BRNI—that is the end of it, and the ALJ “make[s] an award providing compensation” for various specified past and future expenses out of the Plan’s funds. § 766.31(1), Fla....

...(2) (“The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.”); § 766.309(1)(c), Fla. Stat. (requiring ALJ to determine how much compensation is awardable under section 766.31, Florida Statutes)....

...The findings of fact and conclusions of law of the administrative law judge shall not be admissible in any subsequent proceeding. . . .”). 3 The ALJ may also have to adjudicate whether the providers complied with the notice requirement set out in section 766.316, Florida Statutes—if the claimant contests the exclusivity of the award once the claim is determined to be compensable....

...n of notice arises only if the claim has been adjudicated compensable). 7 Judicial review of an order of the ALJ determining compensability of the claim filed is to be by appeal to a district court of appeal. See § 766.311(1), 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 ....

...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....

...Birth-Related Neurological Injury Comp. Ass’n, 757 So. 2d 624, 627 (Fla. 5th DCA 2000) (“The language used by the legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim.”); id. at 628 (“We also note that a section 766.316 notice issue is peculiar to a NICA claim.”). 17 after the 1998 amendments, is still limited to someone affirmatively seeking compensation....

...related neurological injuries.” §§ 766.302(3), 766.303(4), Fla. Stat. The right is enforceable against NICA, which is responsible for administering the Plan and paying awards out of the treasury funds available for that purpose. §§ 766.303(1), 766.315(4), (5)(a), Fla. Stat.; cf. § 766.307(2), Fla. Stat. (“The parties to the hearing shall include the claimant and the association.”); § 766.311(2), Fla. Stat....

...iving ALJs (rather than judicial officers) the exclusive authority to determine whether a claimant asserting a public right to compensation in fact meets the statutory criteria for enforcement of that right. §§ 766.304, 766.305(1), Fla. Stat.; see § 766.31(1), Fla....

past and future expenses out of the Plan’s funds. § 766.31(1), Fla. Stat.; see also id. (2) (“The award shall

...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. (2021). The Plan essentially is a risk-management or insurance trust fund. The Legislature funds the Plan through budgetary appropriations plus assessments (read: taxes) on licensed hospitals and physicians. See § 766.314(1), (4), (5)(b), (c), (7), Fla. Stat.; see also Coy v....

...Birth-Related Neurological Injury Comp. Plan, 595 So. 2d 943, 944 (Fla. 1992). NICA adopts an operational plan, subject to approval by the Department of Financial Services, that provides for “assessments on an actuarially sound basis,” subject to certain limitations. § 766.314(2)(a)4., Fla....

...irrespective of fault, for birth-related neurological injury claims.”). Naturally, the funds under the Plan are state funds, and the Legislature waives sovereign immunity “solely to the extent necessary to assure payment of compensation” for BRNIs. §§ 766.303(3), 766.315(5)(f), 766.31(1), Fla. Stat. NICA administers “the payment of claims on behalf of the plan” and can “[t]ake such legal action as may be necessary to avoid payment of improper claims.” § 766.315(4)(c), (j), Fla....

...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. Stat. (defining “administrative law judge” and “division”); cf. § 766.312, Fla....

...If the ALJ determines that the claim is compensable—essentially, that the evidence shows that the injury suffered meets the definition of a BRNI—that is the end of it, and the ALJ “make[s] an award providing compensation” for various specified past and future expenses out of the Plan’s funds. § 766.31(1), Fla....

...(2) (“The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.”); § 766.309(1)(c), Fla. Stat. 8 (requiring ALJ to determine how much compensation is awardable under section 766.31, Florida Statutes)....

...The findings of fact and conclusions of law of the administrative law judge shall not be admissible in any subsequent proceeding. . . .”). Judicial review of an order of the ALJ determining compensability of the filed claim is to be by appeal to a district court of appeal. See § 766.311(1), Fla....

...The parents, on their own and on behalf of G.C., originally petitioned for compensation under the Plan. The petition prayed for the award of payment for medical services and expenses for G.C. as provided 3 The ALJ may also have to adjudicate whether the providers complied with the notice requirement set out in section 766.316, Florida Statutes—if the claimant contests the exclusivity of the award once the claim is determined to be compensable....

...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 ....

...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....

...Birth-Related Neurological Injury Comp. Ass’n, 757 So. 2d 624, 627 (Fla. 5th DCA 2000) (“The language used by the legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim.”); id. at 628 (“We also note that a section 766.316 notice issue is peculiar to a NICA claim.”). 18  C As just mentioned in the margin, NICA v....

...related neurological injuries.” §§ 766.302(3), 766.303(4), Fla. Stat. The right is enforceable against NICA, which is responsible for administering the Plan and paying awards out of the treasury funds available for that purpose. §§ 766.303(1), 766.315(4), (5)(a), Fla. Stat.; cf. § 766.307(2), Fla. Stat. (“The parties to the hearing shall include the claimant and the association.”); § 766.311(2), Fla. Stat....

...iving ALJs (rather than judicial officers) the exclusive authority to determine whether a claimant asserting a public right to compensation in fact meets the statutory criteria for enforcement of that right. §§ 766.304, 766.305(1), Fla. Stat.; see § 766.31(1), 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....

...No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under s. 766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s....

...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. § 766.313, Fla....

...nsability) was a condition precedent to Exposito’s ability to maintain her cause of action in circuit court. The DOAH entered an order determining that although the claim for compensation was untimely and barred by the statute of limitations under section 766.313, because immunity would be a defense to the civil action, the ALJ was required to make a finding as to the claim’s compensa-bility....

...We look to the statutes’ plain meaning in order to determine legislative intent. Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 254 (Fla.2006). Two provisions of the NICA Plan’s statutory scheme serve to guide us in this determination: First, under section 766.313 “[a]ny claim for compensation under [the NICA statute] that is filed more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred” (emphasis added). Although Ex-pósito filed a form petition requesting payment of expenses as set forth in section 766.31(a), Expósito never alleged that baby Stephanie had a birth-related neurological injury; in fact, she specifically stated in her petition that baby Stephanie “weighed only 665 grams at the time of her birth so she does not meet the N...

...losed 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. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311....

...ackson 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....

...exceeding her jurisdiction by proceeding with the administrative claim and making further determinations notwithstanding the fact that Ex-posito’s claim is time-barred.” The defendants asserted that "the question of whether a claim is barred by Section 766.313 Florida Statutes is a threshold jurisdictional issue, [and thus,] the ALJ lacked the jurisdiction to make any determinations beyond that ruling and that any additional determination rendered would amount to an improper advisory opinion." This court denied appellants' requested relief....

...e 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)....