Florida/Georgia Personal Injury & Workers Compensation

...Eaton of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, P.A., Miami, for Athey and Sierra, Amicus Curiae. KOGAN, Chief Justice. We have for consideration the following question certified by the First District Court of Appeal to be of great public importance: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS *309 GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS' INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? Braniff v....

...negligence during the delivery. The defendants responded with a motion to dismiss, claiming that the Braniffs were limited to an administrative remedy under Florida's Birth-Related Neurological Injury Compensation Plan (NICA plan), sections 766.301-766.316, Florida Statutes (1993). The Braniffs took the position that their civil suit was not precluded because the defendants had failed to comply with the NICA plan's notice provision, section 766.316, Florida Statutes (1993). The Braniffs maintained that as a condition precedent to asserting NICA exclusivity, section 766.316 required the defendants to give Mrs....

...Braniff of their participation in the NICA plan prior to delivery. They further maintained that pre-delivery notice is not required under the plan nor is exclusivity of the NICA remedy conditioned on predelivery notice. The trial court dismissed the civil action, concluding that section 766.316 does not require pre-delivery notice....

...The First District reversed, holding that pre-delivery notice is a condition precedent to exclusivity under the plan and that the factual dispute over whether notice was given in this case should be resolved by the jury. We are in general agreement with the district court. Section 766.316 provides in pertinent part: Each hospital with a participating physician on its staff and each participating physician ......

...Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. Without exception the district courts of appeal that have addressed the issue have read section 766.316 to require pre-delivery notice....

...We agree with the district courts that the only logical reading of the statute is that 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. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316....

...(2) It is the intent of the Legislature to provide compensation, in a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birthrelated neurological injuries. *313 The notice provision, section 766.316, Fla....

...PETERSON, J. The issue presented by this appeal is whether an administrative law judge has jurisdiction to determine that notice to a patient of a physician's participation in Florida's Birth-Related Injury Compensation Plan (the Plan), pursuant to section 766.316, Florida Statutes (1998 Supp.), was either given or excused....

...The physicians moved to abate the proceedings until a determination was made by the Division of Administrative Hearings as to the compensability of plaintiff's claim under the Plan. Florida's Birth-Related Neurological Injury Compensation Act (sections 766.301-766.316, Florida Statutes) provides a no fault and exclusive remedy for birth-related neurological injuries when the medical service providers elect to participate in the Plan. The circuit court granted the motion to abate and expressed the opinion that the administrative law judge assigned to the matter by the Division of Administrative Hearings "should initially decide the notice requirements set forth in section 766.316." The plaintiffs then filed a petition to obtain benefits from the Florida Birth-Related Neurological Injury Compensation Association (NICA)....

...heir obstetrical patients notice of their participation in the plan a reasonable time prior to delivery." Id. at 309. *626 In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections 766.301, 766.304, and 766.316, as follows: An act relating to medical malpractice insurance; amending s. 766.301, F.S.; clarifying legislative intent; amending s. 766.304, F.S.; providing exclusive jurisdiction of administrative law judges in claims filed under ss. 766.301-766.316, F.S.; providing a limitation on bringing a civil action under certain circumstances; amending s. 766.315, F.S.; ... amending s. 766.316, F.S.; providing hospitals and physicians with alternative means of providing notices to obstetrical patients relating to the no-fault alternative for birth-related neurological injuries; prescribing conditions; providing for applicability of amendments;.......

...in an administrative proceeding. Section 2. Section 766.304, Florida Statutes, is amended to read: 766.304 Administrative law judge to determine claims.— The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections....

...introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered. The division may adopt rules to promote the efficient administration of, and to minimize the cost associated with, the prosecution of claims. Section 4. Section 766.316, Florida Statutes, is amended to read: 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....

...The amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth. Section 7. Amendments to section 766.316, Florida Statutes, shall take effect July 1, 1998, and shall apply only to causes of action accruing on or after that date....

...Our conclusion that the administrative forum is the intended exclusive forum to determine the notice question eliminates the "ping-pong effect," that is, the trial court and the administrative law judge each throwing the case back to the other on this question. We also note that a section 766.316 notice issue is peculiar to a NICA claim. The 766.316 notice is not applicable to a common law tort or contract action....

...THE FLORIDA SUPREME COURT'S DECISION IN GALEN OF FLORIDA, INC. V. BRANIFF, 696 So.2d 308 (Fla.1997), DOES A PHYSICIAN'S PREDELIVERY NOTICE TO HIS OR HER PATIENT OF THE PLAN AND HIS OR HER PARTICIPATION IN THE PLAN SATISFY THE NOTICE REQUIREMENTS OF SECTION 766.316, FLORIDA STATUTES (1997), IF THE HOSPITAL WHERE THE DELIVERY TAKES PLACE FAILS TO PROVIDE NOTICE OF ANY KIND? All Children's, 989 So.2d at 4; Bayfront, 982 So.2d at 710. [1] We answer the certified question in the negative and quash the Second District's decisions in both All Children's and Bayfront. We hold that in order to satisfy the notice requirement of section 766.316, *995 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....

...no-fault basis, for birth-related neurological injuries. Id. Because NICA 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 plan. § 766.316, Fla....

...to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. § 766.316, Fla....

...The statute does not mandate that both the hospital and physician must give notice; rather, the statute qualifies which hospitals must give notice. That is, the only hospitals that are statutorily required to give notice are those "with a participating physician on ... staff." § 766.316....

...Here, the statute at issue provides in relevant part that " [e]ach hospital with a participating physician on its staff and each participating physician ... shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries. " § 766.316, Fla....

...Affording the statute its plain and ordinary meaning, we find that both participating physicians and hospitals with a participating physician on staff are required to provide notice to obstetrical patients of their rights and limitations under the plan. The plain language of section 766.316 does not, in any way, suggest that when a participating physician provides notice of his participation in the plan, the notice requirement has been satisfied....

...We concluded that, logically, the patient must receive notice prior to delivery because the purpose of the notice provision is to inform the obstetrical patient that her remedies may be limited under the plan and to give her an opportunity to make an informed choice of providers. Id. at 309. Accordingly, we held that section 766.316 requires that health care providers give patients pre-delivery notice of their participation in NICA as a condition precedent to invoking NICA immunity....

...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....

...Again because of the notification issue, the Sierras did not believe that they were barred from filing a medical malpractice action or that the defendants were immune from suit. The Sierras asked specifically for a determination that the defendants' failure to comply with the notice provisions of section 766.316 constituted a waiver of any benefits that participation in NICA normally provided....

...NOTES [1] Appellate counsel for the Sierras confirmed these events in the response to Jackson's motion to strike portions of the reply brief or to supplement the record. [2] The original opinion in that case, 19 Fla. L. Weekly D2239 (Fla. 5th DCA Oct. 21, 1994), held that under section 766.316, Florida Statutes, pre-delivery notification of a doctor's participation in NICA was not a prerequisite to application of the exclusive administrative remedy....

...In each case, the Second District certified conflict with decisions from the Third, Fourth, and Fifth District Courts of Appeal on an issue regarding the subject matter jurisdiction of administrative law judges under the Florida Birth-Related Neurological Injury Compensation Act as found in sections 766.301 through 766.316, Florida Statutes (1997 & Supp.1998) (NICA)....

...[1] We frame the question in conflict as follows: Does an administrative law judge (ALJ), when considering a NICA claim, have jurisdiction to determine whether or not a health care provider has complied with the "notice to obstetrical patients of participation in the plan" as required by section 766.316? In the two cases before us, the Second District held that the NICA statute, as it existed prior to the 2003 amendment, did not give the ALJ any jurisdiction to determine this notice issue....

...1st DCA 2004). As explained below, we hold that when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction to make findings regarding whether a health care provider has satisfied the "notice to obstetrical patients" requirement of section 766.316, Florida Statutes (Supp.1998)....

...Claims under the NICA Plan are heard and determined administratively as set forth in sections 766.301-.316. In each case, the parents complied with the circuit court's order but did so under protest. They filed NICA claims but alleged that the health care providers had not provided them with the notice required by section 766.316, Florida Statutes (Supp. 1998). This statutorily mandated notice informs obstetrical patients of "the limited no-fault alternative for birth-related injuries" under the NICA Plan. Specifically, section 766.316, 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....

...nd resolve the certified conflict. II. ANALYSIS Again, the issue in conflict is whether an ALJ, when considering a NICA claim, has jurisdiction to determine if a health care provider has complied with the "notice to obstetrical patients" required by section 766.316....

...Because resolving this conflict requires the interpretation of a statute, our standard of review is de *710 novo. B.Y. v. Dep't of Children & Families, 887 So.2d 1253, 1255 (Fla.2004). As previously stated, we conclude that when a health care provider's compliance with the notice requirement of section 766.316 is raised as an issue in a NICA claim, an ALJ has jurisdiction to make this determination....

...See § 766.302(6)-(7), Fla. Stat. (1997). However, as previously determined by this Court, there is a condition precedent to NICA's exclusivity. Predelivery notice of the health care provider's participation in the NICA Plan must be given as required by section 766.316....

...[T]he purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies."). Section 766.316 provides that, except in the case of emergency or impracticability, a participating health care provider is required to furnish each obstetrical patient with notice that the NICA Plan's "limited no-fault alternative for birth-related...

...The conflict is based on divergent views over the scope of the ALJ's duties in the NICA claims process. [14] The Second District held that "[t]here is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine . . . that notice under section 766.316 was or was not properly given." All Children's Hosp., Inc., 863 So.2d at 456....

...Each of these courts found jurisdiction in other provisions of the NICA statutory scheme, outside of section 766.309(1). The Fifth District was the first to do so in O'Leary, 757 So.2d 624. That court held that the ALJ has exclusive jurisdiction to make findings regarding whether the notice provided for by section 766.316 was either given or excused....

...at 627-28. In reaching this conclusion, the Fifth District first presented the language of the 1998 amendments as follows: In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections 766.301, 766.304, and 766.316, as follows: ....

...n an administrative proceeding. Section 2. Section 766.304, Florida Statutes, is amended to read: 766.304 Administrative law judge to determine claims. — The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections....

...introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered. The division may adopt rules to promote the efficient administration of, and to minimize the cost associated with, the prosecution of claims. Section 4. Section 766.316, Florida Statutes, is amended to read: 766.316 Notice to obstetrical patients of participation in the plan....

...The amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth. Section 7. Amendments to section 766.316, Florida Statutes, shall take effect July 1, 1998, and shall apply only to causes of action accruing on or after that date....

...Our conclusion that the administrative forum is the intended exclusive forum to determine the notice question eliminates the "ping-pong effect," that is, the trial court and the administrative law judge each throwing the case back to the other on this question. We also note that a section 766.316 notice issue is peculiar to a NICA claim. The 766.316 notice is not applicable to a common law tort or contract action....

...matter" from whether an injury is compensable under NICA. Id. at 456. 3. Resolving the Conflict Question Again, the narrow question we must resolve is whether the 1998 version of NICA gives the ALJ jurisdiction to determine if the notice mandated by section 766.316 was provided. As previously stated, we disagree with the Second District's holding that "[t]here is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine . . . that notice under section 766.316 was or was not properly given." All Children's Hosp., Inc., 863 So.2d at 456....

...Instead, we agree with Judge Kahn's analysis of this question in Tabb, 880 So.2d 1253, where he wrote: The ALJ's authority derives from section 766.304, Florida Statutes (2001): [17] The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary to carry out the purposes of such sections....

...law and statutory law. . . . (emphasis added). In order to "hear and determine" a claim, an ALJ must, almost of necessity, decide whether notice was given, because if no notice was given, the exclusivity provision of the statute does not apply. See § 766.316, Fla....

...Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes: 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....

...766.311, prior to issuance of an award pursuant to s. 766.31. Ch. 03-416, § 77, at 4117, Laws of Fla. In passing the amendment, the Legislature implicitly acknowledged the existing case law indicating that an ALJ has jurisdiction to determine whether notice was provided pursuant to section 766.316....

...Given our agreement with this analysis of NICA in Tabb, we hold that when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction *717 to make findings regarding whether a health care provider has satisfied the notice requirements of section 766.316, Florida Statutes. [18] III. CONCLUSION In conclusion, when the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316....

...ANSTEAD, J., dissents with an opinion, in which LEWIS, C.J., concurs. PARIENTE, J., dissents with an opinion, in which LEWIS, C.J., and ANSTEAD, J., concurs. LEWIS, C.J., dissenting. I dissent from the majority's conclusion that the ALJ possessed jurisdiction to determine whether the notice mandated by section 766.316 of the Florida Statutes was provided in this case....

...The court has jurisdiction to decide the question. . . ."). The 1998 amendments to NICA in no way altered this Court's holding in Braniff because those amendments did not expressly delegate to the ALJ the authority to determine this issue of whether the notice mandated by section 766.316 was provided....

...an eligible NICA claimant who has decided to invoke the NICA remedy by making this filing. . . ."), approved, 696 So.2d 308 (Fla.1997). Additionally, it is not necessary under NICA for an ALJ to determine whether a party received notice pursuant to section 766.316 in order to decide whether a birth-related injury is compensable under NICA....

...Therefore, the NICA plan must be interpreted narrowly so as not to sacrifice the common law rights of patients to a statutory substitute. I believe that the majority has erred in concluding that the ALJ possesses jurisdiction to determine whether the notice mandated by section 766.316 was provided because there is no express language in section 766.309 dictating such....

...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....

...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....

...Hearings, 863 So.2d 450, 455-57 (Fla. 2d DCA 2004). LEWIS, C.J., concurs. PARIENTE, J., dissenting. The issue in this case is a very narrow one: whether the Administrative Law Judge (ALJ) has jurisdiction to determine whether obstetrical patients were given the required notice under section 766.316, Florida Statutes (Supp.1998)....

...Houvardas, 924 So.2d 982 (Fla. 2d DCA 2006), the Second District held that for claims made on or after September 15, 2003, an ALJ in a NICA proceeding has exclusive jurisdiction to determine whether the health care provider has given notice as required by section 766.316....

...Stat. (Supp.1998) ("The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding."); § 766.304, Fla. Stat. (1997) ("The [ALJ] shall hear and determine all claims filed pursuant to ss. 766.301-766.316.")....

...However, because Ferguson is moot and because the Second District did not certify conflict with Gugelmin in All Children's Hospital, Inc., we do not address Gugelmin in resolving this conflict. In Gugelmin, the Fourth District held that an ALJ may make findings of fact regarding whether notice was provided as required by section 766.316, but the ALJ cannot comment upon the legal effect of these findings on the claimant's common law remedies and, in turn, the health care provider's right to immunity from tort by requiring the claimant to make an election of remedies....

...The Fourth District decided Behan in 1995, before this Court issued its decision in McKaughan, a decision later abrogated by the Legislature as noted by the Fifth District in O'Leary. In Behan, the Fourth District held that an ALJ must determine whether notice is adequate pursuant to section 766.316 before exercising jurisdiction to make any determination with regard to a claim under NICA....

...Chapter 2006-8 added subsection (d) to section 766.309(1) as follows: (1) The administrative law judge 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....

...s. Ch.2006-8, § 1, at 194, Laws of Fla. Section 2 states that this amendment "clarifies that since July 1, 1998, the administrative law judge has had the exclusive jurisdiction to make factual determinations as to whether the notice requirements in s. 766.316, Florida Statutes, are satisfied." Ch.2006-8, § 2, at 194, Laws of Fla....

...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)....

...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....

...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....

...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....

...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....

...Petitioners request certiorari review of an order allowing respondents to amend their complaint to allege petitioners' failure to comply with the statutory notice provision of Florida's Birth-Related Neurological Injury Compensation Act (NICA), sections 766.301-766.316, Florida Statutes (1993)....

...Weekly D1222 ___ So.2d ___ [1993 WL 152187] (Fla. 3d DCA May 11, 1993); Tucker v. Resha, 610 So.2d 460 (Fla. 1st DCA 1992), quashed on other grounds, 648 So.2d 1187 (Fla. 1994); Seminole Tribe of Florida v. Houghtaling, 589 So.2d 1030 (Fla. 2d DCA 1991), approved, 611 So.2d 1235 (Fla. 1993). Section 766.316, Florida Statutes (1993) provides: Each hospital with a participating physician on its staff and each participating physician ......

...— The Hospital Company d/b/a Plantation General Hospital, etc. PER CURIAM. Appellants filed an administrative claim pursuant to Florida's Birth-Related Neurological Injury Compensation Act (NICA), but did so under protest contending that they were not given notice as required by section 766.316, Florida Statutes (1993), and that NICA was, therefore, inapplicable....

...Having considered and decided upon appellant's claim, the hearing officer assumed jurisdiction and implicitly concluded that notice is not a condition precedent to the exclusive jurisdiction of the agency. Appellants raise two points in this appeal. First, they contend that the notice requirement of section 766.316 is a condition precedent to the applicability of NICA....

...1st DCA Sept. 11, 1995); Turner v. Hubrich, 656 So.2d 970 (Fla. 5th DCA 1995). Accordingly, we reverse the hearing officer's order for lack of jurisdiction. We certify the same question as that certified in Mills as being of great public importance: DOES SECTION 766.316, FLORIDA STATUTES (1993), REQUIRE THAT HEALTH CARE PROVIDERS GIVE PRE-DELIVERY NOTICE TO THEIR OBSTETRICAL PATIENTS OF THEIR PARTICIPATION IN THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? REVERSED....

...al Injury Compensation Plan (NICA Plan) contained in sections 766.301-.316, Florida Statutes (2001). As a threshold matter, Tabb challenges the subject matter jurisdiction of the ALJ to determine whether she received the required notice, pursuant to section 766.316, that appellee Memorial Healthcare Group (Memorial) participated in the Plan....

...k of subject matter jurisdiction may be raised for the first time on appeal."). The ALJ's authority derives from section 766.304, Florida Statutes (2001): The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary to carry out the purposes of such sections....

...mon law and statutory law.... (emphasis added). In order to "hear and determine" a claim, an ALJ must, almost of necessity, decide whether notice was given, because if no notice was given, the exclusivity provision of the statute does not apply. See § 766.316, Fla....

...Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes: 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....

...766.311, prior to issuance of an award pursuant to s. 766.31. Ch. 03-416, § 77, at 4117, Laws of Fla. In passing the amendment, the Legislature implicitly acknowledged the existing case law indicating that an ALJ has jurisdiction to determine whether notice was provided pursuant to section 766.316....

...See All Children's Hosp., Inc. v. Dep't of Admin. Hearings, 863 So.2d 450, 456 (Fla. 2d DCA 2004) ("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)."); Fla....

...ed on this issue. See Fla. Health Sciences, 871 So.2d at 1066; All Children's Hosp., 863 So.2d at 457. This court has not addressed the issue before but has indicated that a participating physician's failure to provide the required NICA notice under section 766.316 was not harmless....

...themselves of a rebuttable presumption that the notice requirements have been satisfied: "Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met." § 766.316, Fla....

...a presumption on that issue. On remand, the ALJ, affording Memorial's evidence the proper weight, should make a new determination on the question of notice. REVERSED and REMANDED for further proceedings. WOLF, C.J., and LEWIS, JJ., CONCUR. NOTES [1] Section 766.316, Florida Statutes (2001), provides: 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....

...lees Athey-Simcic. Bruce Culpepper and William E. Whitney of Pennington & Haben, P.A., Tallahassee, for Appellee Florida NICA. REVISED OPINION VAN NORTWICK, Judge. This appeal raises questions concerning whether the notice required to be given under section 766.316, Florida Statutes (1989), is a condition precedent to health care providers asserting exclusivity under The Florida Neurological Injury Compensation Association (NICA) and whether the health care provider must have a reasonable opportunity to provide such notice....

...e infant claimants allegedly as the result of medical negligence during labor and delivery at UMC. The trial court, in granting summary judgment in favor of the claimant families, ruled (i) that the pre-delivery notice to the obstetric patient under section 766.316 is a condition precedent to a health care provider asserting NICA as the patient's exclusive remedy, (ii) that the claimant families were not limited to the remedies available under NICA, but could pursue their common law remedies, because the pre-delivery notice was not provided and (iii) that the health care providers here had a reasonable opportunity to give the required notice. On appeal the health care providers argue that notice under section 766.316 is not a condition precedent to their invoking NICA as the exclusive remedy of the claimant families and that, because of the circumstances present here, the trial court erred in determining that as a matter of law the health care providers had a reasonable opportunity to comply with section 766.316....

...ant was delivered by caesarean section approximately 4 3/4 hours after the patient's admission and the other infant was vaginally delivered approximately 31 hours after the patient's admission. The parties have stipulated that the notice required by section 766.316 was not given to either of these patients....

...t the claimants were limited to the remedies available under NICA. The claimant families filed answers alleging, as affirmative defenses, that the Board, as employer of the appellant-physicians, and UMC failed to provide the NICA notice specified by section 766.316 and that such notice is a condition precedent to the exclusive remedy provision of NICA....

...ot obviate NICA's exclusive remedy provision. In a lengthy order, the trial court granted the motions for summary judgment of the claimant families as to all appellants and denied the motions of the health care providers. In addition to finding that section 766.316 required pre-delivery notice as a condition precedent to the health care provider's assertion of NICA exclusivity, the trial court addressed the question of whether the health care providers had a reasonable opportunity to give the required notice....

...al court was the fact that UMC obtained consent forms from the women upon their admission and "there is no apparent reason why the patient could not have been given notice of her rights and limitations under NICA at that time." This appeal followed. Section 766.316 Notice as Condition Precedent Under the Florida Birth-Related Neurological Injury Compensation Plan, participating health care providers are required to comply with the following notice requirement: Each hospital with a participating...

...to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. § 766.316, Fla.Stat....

...atients. In addition, except for residents, assistant residents and interns who are exempted from the notice requirement, a participating physician is required to give notice to the obstetrical patients to whom the physician provides services. Under section 766.316, therefore, notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery. The question of whether the notice under section 766.316 is a condition precedent to the applicability of NICA was resolved by this court during the pendency of this appeal. Braniff v. Galen of Florida, Inc., 669 So.2d 1051 (Fla. 1st DCA 1995), rev. granted, 670 So.2d 938 (Fla.1996). In Braniff, this court held that the notice of NICA participation required by section 766.316 must be given to obstetrical patients prior to delivery and the giving of such notice was a condition precedent to the health care provider invoking NICA as the patient's exclusive remedy. Id. at 1052. As this court explained: [L]anguage in section 766.316 indicates that ......

...North Broward Hospital District, 664 So.2d 65 (Fla. 4th DCA 1995), rev. granted sub. nom., Domond v. Mills, No. 87,270, 678 So.2d 338 (Fla. July 11, 1996). As in Braniff, we certify the following question as one of great public importance: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS' INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? Reasonable Opportunity to Provide Notice The appellants also argue that, even if a pre-delivery notice under section 766.316 is a condition precedent to their NICA immunity, the trial court erred in finding that the appellants had a reasonable opportunity to provide the NICA notice. Appellants do not argue that a medical emergency prevented the giving of the notice in the instant case. Recognizing that the notice under section 766.316 "is intended to permit an informed choice between `alternatives' before delivery," Braniff, 669 So.2d at 1053, appellants reason that the patients here had no real choice in delivery alternatives because, as the undisputed facts refle...

...caid patients and their medical conditions. Since no "informed choice" was possible for these patients at the time they presented to UMC under the instant circumstances, appellants argue they had no opportunity to provide an efficacious notice under section 766.316....

...ce given on the grounds that their pre-delivery notice came too late to provide realistic choice of alternative providers. We believe the use of a bright-line rule here will be most in keeping with the legislative intent of the notice requirement in section 766.316. We hold that health care providers who have a reasonable opportunity to give notice and fail to give predelivery notice under section 766.316, will lose their NICA exclusivity regardless of whether the circumstances precluded the patient making an effective choice of provider at the time the *51 notice was provided....

...We, therefore, affirm the ruling of the trial court as to UMC. Although the trial court also granted summary judgment as to the appellant-physicians and the Board, as their employer, the order on appeal does not address whether the attending physicians, who are required to provide section 766.316 notice, had a reasonable opportunity to provide that notice....

...Boyd, M.D. and Beaches Obstetrical and Gynecological Practice, for Appellee. LEWIS, J. Nicholas and Lisa Schur, appellants, challenge the Administrative Law Judge's ("ALJ") conclusion that Dr. Marijane Boyd's failure to provide the required notice under section 766.316, Florida Statutes (Supp.1998), was harmless. Section 766.316 requires participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan ("NICA plan") to provide notice to their obstetrical patients of their participation in such....

...cal delivery and that the defendants failed to perform an appropriate and timely cesarean section. The defendants moved to abate the civil action pending the administrative determination of the claim under the NICA plan, codified in sections 766.301-766.316, Florida Statutes....

...The NICA plan was designed by the Legislature "to provide compensation, on a no-fault basis, for a limited class of catastrophic [birth-related neurological] injuries that result in unusually high costs for custodial care and rehabilitation." § 766.301(2), Fla. Stat. (1997); § 766.303(1), Fla. Stat. (1997). Section 766.316 provides, in pertinent part, that each hospital and participating physician under the NICA plan must: provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries....

...This Court in Athey established a bright-line rule requiring pre-delivery notice from each health care provider in order to preserve his or her NICA plan immunity. This Court held that "health care providers who have a reasonable opportunity to give notice and fail to give pre-delivery notice under section 766.316, will lose their NICA exclusivity regardless of whether the circumstances precluded the patient making an effective choice of provider at the time the notice was provided." Athey, 694 So.2d at 50-51....

...Boyd to share patients and services with Drs. Moorhead and Schroeder. Although Dr. Boyd later became an employee of North Florida OB/ GYN, at the time of Nicholas' birth, she was employed by Beaches OB/GYN and did not fall under the North Florida OB/ GYN umbrella. Furthermore, section 766.316 requires " [e]ach hospital with a participating physician on its staff and each participating physician" to provide notice....

...At the outset of her prenatal care, OB/GYN provided Kocher with the statutorily mandated notice that the doctors in the group were participants in the NICA program. However, upon entering the Bayfront facility for delivery, the hospital failed to provide Kocher with the notice required by section 766.316....

...alleged that the baby suffered from fetal distress and perinatal asphyxia due to negligence during Mrs. Ruiz' labor. The Ruiz family also alleged that proper NICA Plan notice was not given by the University physicians or the hospital as required by section 766.316, Florida Statutes (1998)....

...However, this court will not disturb the ALJ's findings of fact unless they are not supported by competent substantial evidence. See § 120.68(7), Fla. Stat. (1998); Id. The issue on appeal is whether the University physicians properly complied with the notice requirement pursuant to section 766.316....

...monstrate that proper pre-delivery notice was given to their patients. Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997); Bd. of Regents v. Athey, 694 So.2d 46, 49 (Fla. 1st DCA), aff'd 699 So.2d 1350 (Fla.1997); Schur, 832 So.2d at 192. Section 766.316 provides, in relevant part: Notice to obstetrical patients of participation in the plan....

...ion of a patient's rights and limitations under the plan.... Notice need not be given to a patient when the patient has an emergency medical *869 condition defined in [section 395.002(9)(b), Florida Statutes, 1998] or when notice is not practicable. § 766.316, Fla....

...ows the patient to pursue civil remedies. Id. at 310. However, there are two separate and distinct exceptions to NICA's notice requirement: situations when the patient presents in an emergency medical condition or when notice is not practicable. See § 766.316, Fla....

...Appellants also argue that, once the ALJ properly determined the existence of an emergency medical condition, further inquiry into whether providing notice was practicable at an earlier stage was inappropriate because it contravened the plain language of section 766.316....

...Birth-Related Neurological Injury Comp. Ass'n, 880 So.2d 1253, 1260 (Fla. 1st DCA 2004)(citing Galen, 696 So.2d at 311). Dr. Norris, one of the University's treating physicians, testified that, although he was aware that he had a separate and independent responsibility under section 766.316 to provide notice, it was his belief that the hospital's provision of notice at pre-registration satisfied his statutory notice obligation....

...ble opportunity *870 to provide notice to Mrs. Ruiz. In the alternative, appellants contend that, even if a reasonable opportunity had existed, the provision of notice was excused under the "emergency medical condition" exception in the statute. See § 766.316, Fla....

...section 766.304, and it allows a form of immunity from suit for participating providers in some circumstances under section 766.303(2). See Romine v. Fla. Birth Related Neurological Injury Comp. Ass'n, 842 So.2d 148, 151-52 (Fla. 5th DCA 2003). [2] Section 766.316 was amended in 1998, prior to the baby's birth, to include the two exceptions to the notice requirement....

...tes (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....

...d/b/a Florida Hospital, had not. On appeal, the Dianderases dispute the ALJ's determination that the brochure complied with the statutory notice provisions. [1] On cross-appeal, Florida Hospital disputes the ALJ's finding that it failed to satisfy the notice requirements of section 766.316....

...Dianderas a copy of the NICA brochure, entitled "Peace of Mind for an Unexpected Problem" in a timely manner. However, the Dianderases contend that the NICA "Peace of Mind" brochure furnished to Mrs. Dianderas does not contain a "clear and concise explanation of the rights and limitations under NICA" as required by section 766.316, Florida Statutes (2002)....

...alifies under the law. If your health care provider has provided you with a copy of this informational form, your health care provider is placing you on notice that one or more physician(s) at your health care provider participates in the NICA Plan. Section 766.316 requires, in relevant part, that NICA "shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries ....

...The statute requires NICA to provide forms that "include a clear ['free from doubt or confusion] and concise ['expressing much in few words; clear and succinct'] explanation ['Rio make plain or comprehensive] of the patients' rights and limitations under the plan." § 766.316, Fla....

...We have for review Board of Regents v. Athey, 694 So.2d 46 (Fla. 1st DCA 1997), wherein the First District Court of Appeal certified the same question of great public importance it certified in Braniff v. Galen of Florida, Inc., 669 So.2d 1051 (Fla. 1st DCA 1995): WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS' INVOKING NICA AS THE PATIENTS' EXCLUSIVE REMEDY? 694 So.2d at 50....

...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 ......

...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....

...Kocher, [5] and that Bayfront did not provide further notice to Mrs. Kocher. The ALJ's legal conclusion was based on his analysis of the statute requiring that notice be given as a condition precedent to the application of the immunity provision of the Plan. See § 766.316, Fla....

...e or willful and wanton disregard of human rights, safety, or property." § 766.303(2). There are no allegations in this case that suggest the applicability of this exception. Rather, this case involves the second exception, the requirement found in section 766.316 that notice of the Plan be given to the expectant mother by "[e]ach hospital with a participating physician on its staff and each participating physician." The Florida Supreme Court has interpreted section 766.316 to require as a condition precedent to the exclusivity of the Plan that such notice be supplied to parents prior to the delivery of the child....

...In considering the Kochers' Florida Birth-Related Neurological Injury Compensation Association (NICA) petition, the ALJ here concluded that the exclusivity provision of the Plan did not apply because Bayfront failed to provide the notice required by section 766.316....

...Rather, the Kochers had the option to either accept the benefits payable under the Plan or pursue a civil action against the healthcare providers. On appeal, Bayfront raises two challenges to the ALJ's conclusion. First, Bayfront argues that the Galen court's reading and application of section 766.316 suggests that the physician's predelivery notice of his participation in the Plan alone — without further notice from the hospital — satisfies the legislative intent of the statute....

...Further, nothing in the statute or case law suggests that it is a hospital's duty to advise a patient that her physician is or is not a participating physician. Hospitals with participating physicians on staff are simply required to provide obstetrical patients with the NICA-prepared "Peace of Mind" brochure, see § 766.316 (requiring that notice be given on forms furnished by NICA), which does not address the participation status of any particular physician, see Jackson v....

...The statute does not mandate that both the hospital and physician must give notice; rather, the statute qualifies which hospitals must give notice. That is, the only hospitals that are statutorily required *709 to give notice are those "with a participating physician on . . . staff." § 766.316....

...GHT OF THE FLORIDA SUPREME COURT'S DECISION IN GALEN OF FLORIDA v. BRANIFF, 696 So.2d 308 (Fla.1997), DOES A PHYSICIAN'S PREDELIVERY NOTICE TO HIS OR HER PATIENT OF THE PLAN AND HIS OR HER PARTICIPATION IN THE PLAN SATISFY THE NOTICE REQUIREMENTS OF SECTION 766.316, FLORIDA STATUTES (1997), IF THE HOSPITAL WHERE THE DELIVERY TAKES PLACE FAILS TO PROVIDE NOTICE OF ANY KIND? Reversed and remanded; question certified. NORTHCUTT, C.J., and KELLY, J., Concur. NOTES [1] §§ 766.301-.316, Fla. Stat. (1997). [2] See § 766.316 ("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....

...Kocher denies remembering the physician's conversation with her regarding the Plan, she acknowledged the written statement that she signed indicating that the physician was in fact a participant in the Plan. [6] The ALJ included the following quote in his order: "Under section 766.316, therefore, notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery." Athey, 694 So.2d at 49....

...Hubrich, 656 So.2d 970 (Fla. 5th DCA 1995), and Braniff v. Galen of Florida Inc., 20 Fla. L. Weekly D2140, ___ So.2d ___ *66 (Fla. 1st DCA Sept. 11, 1995). We join the first district in certifying the following question to the supreme court: "Does § 766.316, Fla....

...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)....

...ial care and rehabilitation. This plan shall apply only to birth-related neurological injuries. § 766.301(2), Fla. Stat. (2003)(emphasis added). The term "birth-related neurological injuries" is defined as follows: 766.302. Definitions; ss. 766.301-766.316 As used in ss. 766.301-766.316, the term: * * * * * * (2) "Birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at l...

...y. § 766.302(2), Fla. Stat. (2003). Section 766.304 outlines the exclusive nature of NICA's relief: 766.304. Administrative law judge to determine claims The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections....

...ice actions against the healthcare provider for injuries arising from birth-related neurological injuries. Exceptions to this general rule exist only in instances when the patient has an emergency medical condition or when notice is not practicable. Section 766.316 of the Florida Statutes outlines the notice requirement as follows: 766.316....

...Signature of the patient acknowledging receipt of the notice form raises a rebuttable 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(9)(b) or when notice is not practicable. § 766.316, Fla....

...tice from either her treating physicians (i.e., the hospital's emergency medical staff) or ORHS, the treating physicians were exempted from the statutory notice requirement because Alexander had been treated for an "emergency medical condition." See § 766.316, Fla....

...An ALJ's interpretation of NICA is reviewed by this court de novo. Nagy v. Florida Birth-Related Neurological Injury Comp. Ass'n, 813 So.2d 155 (Fla. 4th DCA 2002). Applying de novo review, we hold that the ALJ erred, as a matter of law, in failing to enforce the clear language of section 766.316, NICA's notice statute....

...hter caused the infant to suffer severe neurological impairment and irreversible brain damage. The trial court concluded that the Braniffs' action was precluded by Florida's Birth-Related Neurological Injury Compensation Act (NICA), sections 766.301-766.316, Florida Statutes (1993), which limited the Braniffs to an administrative remedy....

...In their amended complaint and throughout the subsequent proceedings the Braniffs maintained that they could bring a civil action, despite the exclusivity of NICA's administrative remedy, [1] because the defendants failed to comply with NICA's notification provision. Specifically, section 766.316, Florida Statutes (1993), requires that participating hospitals and physicians "shall provide notice to ......

...In addition to claiming that pre-delivery notice had been given, the defendants pointed out that NICA did not require pre-delivery notice nor did it condition exclusivity upon the giving of such notice. The trial court dismissed the Braniffs' civil action. According to the trial court, section 766.316 did not specifically require that notification precede delivery, and nowhere in the relevant statutes was pre-delivery notice made a condition precedent to the exclusivity of the NICA administrative remedy....

...the procedural steps to be taken to assert NICA rights immediately following the delivery of a neurologically injured infant; thus, according to the defendants, the notice may be given post-delivery. We reject this suggestion because the language in section 766.316 indicates that mandatory notification has a much broader purpose....

...[2] We note that our interpretation of the notice requirement is consistent with that adopted by the Fifth District in Turner v. Hubrich, 656 So.2d 970 (Fla. 5th DCA 1995). Because we find it a matter of great public importance, we certify the following question: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO TH...

...to preclude application of NICA's exclusive remedy provision, thereby entitling the patient to proceed with a medical malpractice lawsuit against the physician for damages arising out of the birth of a child with birth-related neurological injuries. Section 766.316 of the Florida Statutes outlines the notice requirement as follows: 766.316....

...Signature of the patient acknowledging receipt of the notice form raises a rebuttable 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(9)(b) or when notice is not practicable. § 766.316, Fla....

...This appeal timely followed. The Jacksons argue that the ALJ erred, as a matter of law, in concluding that PAF satisfied its burden of proving that proper pre-delivery statutory notice had been provided to Mrs. Jackson. We disagree. As noted above, section 766.316 of the Florida Statutes outlines NICA's notice requirement....

...n the conduct of their affairs shall be admissible in administrative proceedings, whether or not such evidence would be admissible in a trial in the courts of Florida). AFFIRMED. PLEUS, C.J., and SAWAYA, J., concur. NOTES [1] Section 766.301 through section 766.316 of the Florida Statutes (2004) sets forth the provisions of Florida's Birth-Related Neurological Injury Compensation Act.

...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....

...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....

... 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...

...Weeks was in an "emergency medical condition" when she reached the hospital the day David was delivered. In arriving at this conclusion, the ALJ understandably relied on this Court's opinion in Alexander. Our resolution of this issue is based on the language of the statute. Section 766.316, Florida Statutes (2002), provides in pertinent part: Notice to obstetrical patients of participation in the plan....

...A majority of the judges on this court have decided to consider this case en banc to resolve the following issue: whether a hospital and physician, who are participants in the Florida Birth-Related Neurological Injury Compensation Plan [1] (NICA), are excused from compliance with the notice requirements of section 766.316, Florida Statutes (2002), because the mother presented to the hospital and physician for delivery in an emergency medical condition, despite the fact that the mother had previously preregistered at the hospital and had been admitted o...

...cy." Id. at 586. Having reviewed our records in Alexander, as is appropriate for us to do, [4] we take judicial notice of the fact that those three pre-delivery visits to the hospital did not concern an "emergency medical condition" as referenced in section 766.316 and defined by section 395.002(9)(b), Florida Statutes (2002)....

...lure to give notice was a violation of NICA. Alexander, 909 So.2d at 586. This court held that the ALJ was wrong as a matter of law: Applying de novo review, we hold that the ALJ erred, as a matter of law, in failing to enforce the clear language of section 766.316, NICA's notice statute....

...negate this clear statutory exemption. Id. The holding in Alexander is clear — regardless of prior practicable opportunities to provide the notice, such as pre-delivery visits or admissions for nonemergency prenatal care or preregistration, because section 766.316 contains two distinct exceptions that independently provide an exception to the notice requirement, presenting to the hospital with an emergency medical condition under the statute is all that is necessary to trigger the exception provision....

...These cases hold, contrary to Alexander, that a hospital or physician is not excused from the notice requirements when they had practicable opportunities prior to the onset of the medical emergency to provide the notice. Our analysis of the pertinent notice requirements and the exception provisions found in section 766.316, Florida Statutes (2002), [5] leads us to conclude that Mrs. Weeks is right. Section 766.316 provides: Notice to obstetrical patients of participation in the plan *624 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....

...395.002(9)(b) or when notice is not practicable. Because NICA provides the exclusive remedy to those seeking compensation for certain statutorily defined birth-related neurological injuries on a no-fault basis, participants in NICA are required to provide the pre-delivery notice mandated by section 766.316 to their obstetrical patients to give each patient the opportunity to make an informed choice between seeking care from a hospital or physician who participates in the NICA plan and a hospital or physician that does not....

...l injuries pursuant to Florida's Medical Malpractice Act found in chapter 766, Florida Statutes. Jackson; Ruiz. Central to the decisions in Alexander, Ruiz, and Ortiz, and central to resolution of the issue in the instant case, are the provisions of section 766.316 that specify when notice is excused: "Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable." § 766.316, Fla. Stat. (2002). Because section 766.316 expressly adopts the definition of "emergency medical condition" set forth in section 395.002(9)(b), it is appropriate to consider the provisions of the latter statute in ascertaining the meaning of the exemption provisions in the former....

...fore excuses compliance with the notice requirement regardless of the fact that the NICA participant had practicable opportunities prior to delivery to provide the notice. We believe that the holding in Alexander vitiates the pertinent provisions of section 766.316 because it allows the exception to completely swallow the rule requiring notice. This cannot be what the Legislature meant when it enacted section 766.316. The test to determine when notice is required under the statute is practicability, see section 766.316, Florida Statutes (2002), and this means that if a NICA participant has a reasonable opportunity to provide the required notice within a reasonable time prior to the onset of the statutorily defined emergency medical condition to allo...

...Braniff, 696 So.2d 308 (Fla.1997), the court held: We agree with the district courts that the only logical reading of the statute is that 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. Section 766.316 requires that obstetrical patients be given notice "as to the limited no-fault alternative for birth-related neurological injuries." That notice must "include a clear and concise explanation of a patient's rights and limitations under the plan." § 766.316....

...t to read a NICA notice and then shop around for a non-participating *627 hospital or physician to deliver her baby? Accordingly, we recede from our prior decision in Alexander, mindful, of course, that the panel that decided Alexander believed that section 766.316 is unambiguous and, according to certain rules of statutory construction, must be given a literal interpretation....

...ult and to bring symmetry to all of the pertinent provisions of the Act relating to pre-suit notice and investigation."), review denied, 790 So.2d 1102 (Fla.2001). Applying these rules of statutory construction, we believe that the interpretation of section 766.316 we adopt today more accurately comports with legislative intent. Because the hospital and physician failed to provide Mrs. Weeks with the required notice under section 766.316, they should not be entitled to seek shelter under the statute's exclusion provisions....

...Weeks may pursue appropriate tort remedies for damages as she sees fit. We certify the following question to the Florida Supreme Court as a matter of great public importance: WHETHER A HOSPITAL OR PHYSICIAN IS EXCUSED FROM COMPLYING WITH THE NOTICE REQUIREMENT OF SECTION 766.316 WHEN AN OBSTETRICAL PATIENT PRESENTS TO THE HOSPITAL OR *628 PHYSICIAN WITH A MEDICAL EMERGENCY CONDITION, IF THE HOSPITAL OR PHYSICIAN HAD A PRIOR PRACTICABLE OPPORTUNITY TO PROVIDE THE NOTICE....

...[3] We appreciate Judge Sawaya's thorough special concurrence but do not think our decision today is in tension with Galen of Florida, Inc. v. Braniff, 696 So.2d 308 (Fla. 1997). There, the court answered in the affirmative the following certified question: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO TH...

...In any event, any distinction between the two approaches is largely semantic because our analysis leads to the same result and is, therefore, entirely consistent with the Braniff dicta. [1] The provisions of the plan are contained in sections 766.301 through 766.316, Florida Statutes (2002)....

...Dep't of Health & Rehabilitative Servs., 503 So.2d 415, 417 (Fla. 1st DCA 1987); Barry Hinnant, Inc., v. Spottswood, 481 So.2d 80, 81 n. 1 (Fla. 1st DCA 1986); see also Ashman v. State, 886 So.2d 1079, 1081 (Fla. 5th DCA 2004); Cooper v. State, 845 So.2d 312 (Fla. 2d DCA 2003). [5] Section 766.316 was amended, effective July 1, 2007, by chapter 2007-230, section 205, Laws of Florida, to substitute a reference to section 395.002(8)(b) for the reference to section 395.002(9)(b) in the last sentence because the definition of "emergency medical condition" was moved to that subsection....

...The ALJ further concluded that Dr. Forsthoefel gave Petersen pre-delivery notice of her status as a participating physician and was, therefore, entitled to immunity under the Act. However, the ALJ determined that TMRMC had not given Petersen the notice required by section 766.316, nor was it excused from doing so....

...Nevertheless, TMRMC argues that the Petersens' decision to relinquish a lifetime of medical care for their child in exchange for the speculative potential of a jury verdict against TMRMC might not be in Jennifer's best interest. The Florida Birth-Related Neurological Compensation Act, sections 766.301-766.316, Florida Statutes (2004), was enacted to provide compensation for birth-related neurological injury claims....

...THE FLORIDA SUPREME COURT'S DECISION IN GALEN OF FLORIDA, INC. V. BRANIFF, 696 So.2d 308 (Fla.1997), DOES A PHYSICIAN'S PREDELIVERY NOTICE TO HIS OR HER PATIENT OF THE PLAN AND HIS OR HER PARTICIPATION IN THE PLAN SATISFY THE NOTICE REQUIREMENTS OF SECTION 766.316, FLORIDA STATUTES (1997), IF THE HOSPITAL WHERE THE DELIVERY TAKES PLACE FAILS TO PROVIDE NOTICE OF ANY KIND? Reversed and remanded; question certified....

...following in its place. Northwest Medical Center and Dr. Alison Clarke De Souza appeal an administrative order finding that appellee, Mrs. Ortiz, was not given notice of the Florida Birth-Related Neurological Injury Compensation Plan, as required by section 766.316, Florida Statutes (2000)....

...Ortiz's labor, resulting in their child being born with brain damage. Northwest filed a motion to abate the action on the ground that the Ortizes were required to seek a remedy only under the Florida Birth-Related Neurological Injury Compensation Plan ("NICA"), sections 766.301 to 766.316, Florida Statutes. Such remedy is exclusive unless Mrs. Ortiz did not receive notice from the hospital regarding NICA in *783 accordance with section 766.316, Florida Statutes....

..."[A]s a condition precedent to invoking [NICA] as a patient's exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery." Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997). Section 766.316, Florida Statutes (2000), states: 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....

...rmined on a case-by-case basis." Id. Northwest contends that the statute does not require that notice be given at the first available opportunity or at any time prior to when the mother arrives at the hospital for delivery. It cites the provision of section 766.316 which states, "Notice need not be given to a patient when the patient has an emergency medical condition as defined in s....

...We disagree. In Board of Regents v. Athey, 694 So.2d 46, 50-51 (Fla. 1st DCA 1997), in a non-emergency admission situation, the court held "that health care providers who have a reasonable opportunity to give notice and fail to give predelivery notice under section 766.316, will lose their NICA exclusivity regardless of whether the circumstances precluded the patient making an effective choice of provider at the time the notice was provided." There, the health care providers argued that, although notice...

...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)....

...under the [Plan] shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries.... Notice need not be given to a patient when the patient has an emergency medical condition ... or when notice is not practicable. § 766.316....

...The purpose of the notice is to permit patients to decide whether to use health care providers that participate in the Plan or to preserve their civil remedies by using providers that are not participants. Id. at 309-10. The Supreme Court of Florida has very recently interpreted the notice requirements of section 766.316 as follows: [B]oth participating physicians and hospitals with a participating physician on staff are required to provide notice to obstetrical patients of their rights and limitations under the plan. The plain language of section 766.316 does not, in any way, suggest that when a participating physician provides notice of his participation in the plan, the notice requirement has been satisfied....

...The Notice Given During an Earlier Pregnancy The ALJ rejected the Hospital's argument that notice given to Mrs. Anderson in 2001, during an earlier pregnancy, satisfied the notice requirements of the Plan. 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...

...for preregistration that did not include such notice. After a thorough review of the record, we conclude that the ALJ's finding of fact is a binding determination because it is supported by competent, substantial evidence. The notice requirement of section 766.316 is easily satisfied. Construing section 766.316, the supreme court has stated: "[I]n order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely *753 manner." Galen, 696 So.2d at 311. In construing section 766.316, the Fifth District has explained further: [T]he formation of the provider-obstetrical patient relationship is what triggers the obligation to furnish the notice....

...have filed a writ of prohibition seeking to quash the trial court's order denying their motion to abate and to prevent the trial court from conducting an evidentiary hearing on whether they properly complied with the notice requirements set forth in section 766.316, Florida Statutes (2003), of the Birth-Related Neurological Injury Compensation Act (NICA)....

...2d DCA 2004), review granted, Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Department of Administrative Hearings, 913 So.2d 596 (Fla.2005), held that there is nothing in the 1997 version of NICA giving the ALJ the authority to determine whether notice of participation in NICA, which is required by section 766.316, was given or not given....

...amended section 766.309 to add a new subsection which reads: (4) If it is in the interest of judicial economy or if requested 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....

...the ALJ with the jurisdiction to resolve issues of notice. Therefore, we hold 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....

...Accordingly, because the circuit court does not have jurisdiction to determine issues of notice, we grant the petition and quash the order denying the motion to abate. We direct that the ALJ, and not the circuit court, shall determine whether the provider in this case complied with section 766.316....

...Having held that the Glenns' remedies were not limited to making a NICA claim, and the Glenns declaring their intention to proceed with their lawsuit in circuit court, the administrative law judge forwent determining whether the child's injury was compensable under NICA. The NICA notice requirement is set forth in section 766.316....

...Further, this court determined that neither the giving of notice nor the failure to give notice is an element of compensability as defined by the statute: 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 immunity from tort liability provided for in section 766.303(2)....

...PER CURIAM. Plaintiffs, who are the appellants, filed an administrative claim pursuant to Florida's Birth-Related Neurological Injury Compensation Act (NICA), but contended in the administrative proceeding that they were not given notice as required by section 766.316, Florida Statutes (1993), and that NICA was, therefore, inapplicable....

...Plaintiffs seek direct review of that order pursuant to section 766.311(1), raising only *402 the issue of whether the notice requirement is a condition precedent to the applicability of NICA. In Mills v. North Broward Hospital, 664 So.2d 65 (Fla. 4th DCA 1995), we concluded that the notice required by section 766.316 is a condition precedent. Accordingly, we reverse, and as we did in Mills, certify the following question as one of great public importance: DOES SECTION 766.316, FLORIDA STATUTES (1993), REQUIRE THAT HEALTH CARE PROVIDERS GIVE PRE-DELIVERY NOTICE TO THEIR OBSTETRICAL PATIENTS OF THEIR PARTICIPATION IN THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS INVOKING NICA AS THE PATIENT'S EXCLUSIVE REMEDY? Reversed....

...(2) It is the intent of the Legislature to provide compensation, in a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries. The notice provision, section 766.316, Fla....

...Florida Division of Administrative Hearings, 948 So.2d 705, 707 (Fla. 2007), as follows: "`[W]hen notice is raised as part of a claim filed under [the Plan], an ALJ has jurisdiction to make findings regarding whether a healthcare provider has satisfied the "notice to obstetrical patients" requirement of section 766.316, Florida Statutes (Supp.1998).'" 955 So.2d at 530....

...ing the patient that the physician is a participating physician sufficient to invoke the immunity and exclusivity provisions of the NICA Plan? Affirmed. STRINGER [6] and SILBERMAN, JJ., Concur. NOTES [1] §§ 766.301-.316, Fla. Stat. (1997). [2] See § 766.316 ("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....

...claim with respect to such injury. . . ." (emphasis added)). [4] TGH operates the clinic and provides its administrative staff; however, physician services at the clinic are provided by University of South Florida faculty physicians and interns. [5] Section 766.316 provides in part that the statutorily-required notice "shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the [P]lan." [6] Judge String...

...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....

...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....

...If, in fact, that was the legislature's intent, it should amend the act to make its intent clear. We note that the district courts of appeal are divided on the somewhat related *274 issue of whether the administrative law judge has jurisdiction to decide whether the obstetrical patient was given the notice required by section 766.316 of the healthcare provider's participation in the Florida Birth-Related Neurological Injury Compensation Plan....

...rm, which "advised that Sunlife Physicians and Certified Nurse Midwives are participating in this program," did not place Simeon's birth-mother on notice that they were participating in the Plan or, stated otherwise, satisfy their notice obligation. Section 766.316, Florida Statutes (1999) describes the notice requirement as follows: 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....

...Meanwhile, the wrongful death action was abated on motion by the other defendants so as to compel the appellants to pursue relief under the Florida Birth-Related Neurological Injury Compensation Plan. This Plan, as established at sections 766.301 through 766.316, Florida Statutes, provides no-fault compensation for qualifying injuries....

...d. As their final issue, the appellants argue that the defendants should not be allowed to invoke section 766.303(2) exclusivity, as not all of those medical providers furnished the patient with notice of participation in the Plan in accordance with section 766.316, Florida Statutes....

...Meanwhile, the wrongful death action was abated on motion by the other defendants so as to compel the appellants to pursue relief under the Florida Birth-Related Neurological Injury Compensation Plan. This Plan, as established at sections 766.301 through 766.316, Florida Statutes, provides no-fault compensation for qualifying injuries....

...d. As their final issue, the appellants argue that the defendants should not be allowed to invoke section 766.303(2) exclusivity, as not all of those medical providers furnished the patient with notice of participation in the Plan in accordance with section 766.316, Florida Statutes....

...In each case, the Second District certified conflict with decisions from the Third, Fourth, and Fifth District Courts of Appeal on an issue regarding the subject matter jurisdiction of administrative law judges under the Florida Birth-Related Neurological Injury Compensation Act as found in sections 766.301 through 766.316, Florida Statutes (1997 & Supp.1998) (NICA)....

...1 We frame the question in conflict as follows: Does an administrative law judge (ALJ), when considering a NICA claim, have jurisdiction to determine whether or not a health care provider has complied with the “notice to obstetrical patients of participation in the plan” as required by section 766.316? In the two cases before us, the Second District held that the NICA statute, as it existed prior to the 2003 amendment, did not give the ALJ any jurisdiction to determine this notice issue....

...1st DCA 2004). As explained below, we hold that when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction to make findings regarding whether a health care provider has satisfied the “notice to obstetrical patients” requirement of section 766.316, Florida Statutes (Supp.1998)....

...Claims under the NICA Plan are heard and determined administratively as set forth in sections 766.301-.316. In each case, the parents complied with the circuit court’s order but did so under protest. They filed NICA claims but alleged that the health care providers had not provided them with the notice required by section 766.316, Florida Statutes (Supp. 1998). This statutorily mandated notice informs obstetrical patients of “the limited no-fault alternative for birth-related injuries” under the NICA Plan. Specifically, section 766.316, 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....

...lve the certified conflict. II. ANALYSIS Again, the issue in conflict is whether an ALJ, when considering a NICA claim, has jurisdiction to ’determine if a health care provider has complied with the “notice to obstetrical patients” required by section 766.316....

...Because resolving this conflict requires the interpretation of a statute, our standard of review is de *710 novo. B.Y. v. Dep’t of Children & Families, 887 So.2d 1253, 1255 (Fla.2004). As previously stated, we conclude that when a health care provider’s compliance with the notice requirement of section 766.316 is raised as an issue in a NICA claim, an ALJ has jurisdiction to make this determination....

...See § 766.302(6)-(7), Fla. Stat. (1997). However, as previously determined by this Court, there is a condition precedent to NICA’s exclusivity. Predelivery notice of the health care provider’s participation in the NICA Plan must be given as required by section 766.316....

...[T]he purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies.”). Section 766.316 provides that, except in the case of emergency or impracticability, a participating health care provider is required to furnish each obstetrical patient with notice that the NICA Plan’s “limited no-fault alternative for birth-rela...

...The conflict is based on divergent views over the scope of the ALJ’s duties in the NICA claims process. 14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine ... that notice under section 766.316 was or was not properly given.” All Children’s Hosp., Inc., 863 So.2d at 456 ....

...Each of these courts found jurisdiction in other provisions of the NICA statutory scheme, outside of section 766.309(1). The Fifth District was the first to do so in O’Leary, 757 So.2d 624 . That court held that the ALJ has exclusive jurisdiction to make findings regarding whether the notice provided for by section 766.316 was either given or excused....

...at 627-28 . In reaching this conclusion, the Fifth District first presented the language of the 1998 amendments as follows: In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections 766.301, 766.304, and 766.316, as follows: [[Image here]] Be It Enacted by the Legislature of the State of Florida: Section 1....

...n an administrative proceeding. Section 2. Section 766.304, Florida Statutes, is amended to read: 766.304 Administrative law judge to determine claims.— The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections....

...introduced into evidence in the administrative case are admissible as impeachment in any subsequent civil action only against a party to the administrative proceeding, subject to the Rules of Evidence. An action may not be brought under ss. 766.301-766.316 if the claimant recovers or final judgment is entered. The division may adopt rules to promote the efficient administration of, and to minimize the cost associated with, the prosecution of claims. Section 4. Section 766.316, Florida Statutes, is amended to read: 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 *714 deemed to be participating physicians under s....

...The amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1,1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth. Section 7. Amendments to section 766.316, Florida Statutes, shall take effect July 1, 1998, and shall apply only to causes of action accruing on or after that date....

...Our conclusion that the administrative forum is the intended exclusive forum to determine the notice question eliminates the “ping-pong effect,” that is, the trial court and the administrative law judge each throwing the case back to the other on this question. We also note that a section 766.316 notice issue is peculiar to a NICA claim. The 766.316 notice is not applicable to a common law tort or contract action....

...ter” from whether an injury is compensable under NICA. Id. at 456 . 3. Resolving the Conflict Question Again, the narrow question we must resolve is whether the 1998 version of NICA gives the ALJ jurisdiction to determine if the notice mandated by section 766.316 was provided. As previously stated, we disagree with the Second District’s holding that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine ... that notice under section 766.316 was or was not properly given.” All Children’s Hosp., Inc., 863 So.2d at 456 ....

...aw and statutory law.... (emphasis added). In order to “hear and determine” a claim, an ALJ must, almost of necessity, decide whether notice was given, because if no notice was given, the' exclusivity provision of the statute does not apply. See § 766.316, Fla....

...Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes: 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....

...766.311, prior to issuance of an award pursuant to s. 766.31. Ch. 03-416, § 77, at 4117, Laws of Fla. In passing the amendment, the Legislature implicitly acknowledged the existing case law indicating that an ALJ has jurisdiction to determine whether notice was provided pursuant to section 766.316....

...Given our agreement with this analysis of NICA in Tabb , we hold that when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction *717 to make findings regarding whether a health care provider has satisfied the notice requirements of section 766.316, Florida Statutes. 18 III. CONCLUSION In conclusion, when the issue of whether notice was adequately provided pursuant to section 766.316 is raised in a NICA claim, we conclude that the ALJ has jurisdiction to determine whether the health care provider complied with the requirements of section 766.316....

...Houvardas, 924 So.2d 982 (Fla. 2d DCA 2006), the Second District held that for claims made on or after September 15, 2003, an ALJ in a NICA proceeding has exclusive jurisdiction to determine whether the health care provider has given notice as required by section 766.316....

...(Supp.1998) ("The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.”); § 766.304, Fla. Stat. (1997) ("The [ALJ] shall hear and determine all claims filed pursuant to ss. 766.301-766.316.”)....

...However, because Ferguson is moot and because the Second District did not certify conflict with Gugelmin in All Childrens Hospital, Inc., we do not address Gugelmin in resolving this conflict. In Gugelmin , the Fourth District held that an ALJ may make findings of fact regarding whether notice was provided as required by section 766.316, but the ALJ cannot comment upon the legal effect of these findings on the claimant’s common law remedies and, in turn, the health care provider’s right to immunity from tort by requiring the claimant to make an election of remedies....

...The Fourth District decided Behan in 1995, before this Court issued its decision in McKaughan , a decision later abrogated by the Legislature as noted by the Fifth District in O’Leary . In Behan , the Fourth District held that an ALJ must determine whether notice is adequate pursuant to section 766.316 before exercising jurisdiction to malte any determination with regard to a claim under NICA....

...Chapter 2006-8 added subsection (d) to section 766.309(1) as follows: (1) The administrative law judge 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....

...s. Ch.2006-8, § 1, at 194, Laws of Fla. Section 2 states that this amendment "clarifies that since July 1, 1998, the administrative law judge has had the exclusive jurisdiction to make factual determinations as to whether the notice requirements in s. 766.316, Florida Statutes, are satisfied.” Ch.2006-8, § 2, at 194, Laws of Fla.

...urological Injury Compensation Act. Appellants asserted in the administrative proceedings that the Act was not applicable as the patient was not provided notice by the doctor of his participation in the appellee/association (NICA) as required by the section 766.316, Florida Statutes....

...he child did not occur during birth as required under 766.301, Florida Statutes. In concluding that the notice to the patient is a condition precedent to reliance on NICA, we certify to the supreme court the same question certified in Bradford: DOES SECTION 766.316, FLORIDA STATUTES (1993), REQUIRE THAT HEALTH CARE PROVIDERS GIVE PREDELIVERY NOTICE TO THEIR OBSTETRICAL PATIENTS OF THEIR PARTICIPATION IN THE FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO T...

...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)....

...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....

...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 ......

...DOAH "), in which we ultimately held that "when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction to make findings regarding whether a health care provider has satisfied the `notice to obstetrical patients' requirement of section 766.316, Florida Statutes (Supp....

...Littky-Rubin, LLP, West Palm Beach, for appellees. PER CURIAM. Appellant, Palms West Hospital Limited Partnership d/b/a Palms West Hospital appeals the final order of the Division of Administrative Hearings finding that the hospital failed to provide sufficient notice pursuant to section 766.316, Florida Statutes (2012), governing the Birth-Related Neurological Injury Compensation Plan (NICA)....

...Dep’t of Admin. Hearings, 29 So. 3d 992, 999 (Fla. 2010). We affirm the order. On appeal, the hospital does not challenge the administrative law judge’s finding that the hospital failed to provide the mother with sufficient notice under NICA. §§ 766.301 to 766.316, Fla....

PER CURIAM. Appellant, Palms West Hospital Limited Partnership d/b/a Palms West Hospital appeals the final order of the Division of Administrative Hearings finding that the hospital failed to provide sufficient notice pursuant to section 766.316, Florida Statutes (2012), governing the Birth-Related Neurological Injury Compensation Plan (NICA)....

...Dep’t of Admin. Hearings, 29 So.3d 992, 999 (Fla.2010). We affirm the order. On appeal, the hospital does not challenge the administrative law judge’s finding that the hospital failed to provide the mother with sufficient notice under NICA. §§ 766.301 to 766.316, Fla....

...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 und...

...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)....

...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...

...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.”)....

...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....

...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....

...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...

...They assert that, before the action can proceed in circuit court, an administrative law judge must first determine whether the injuries suffered by the respondents’ child fall within the Florida Birth-Related Neurological Injury Compensation Plan (NICA). See §§ 766.301-766.316, Fla....

...The respondents have neither sought nor accepted NICA benefits as to any covered doctor or entity. These petitioners did not provide any obstetrical services, nor did they provide pre-delivery notice as required to claim immunity from civil suit under NICA. See § 766.316, Fla....

...They assert that, before the action can proceed in circuit court, an administrative law judge must first determine whether the injuries suffered by ■ the respondents’ child fall within the Florida Birth-Related Neurological Injury Compensation Plan (NICA). See §§ 766.301-766.316, Fla....

...The respondents have neither sought nor accepted NICA benefits as 'to any covered doctor or entity. These petitioners did not provide any obstetrical services, nor did they provide pre-delivery notice as required 'to claim immunity from civil suit under NICA. See § 766.316, Fla....

...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 ......

...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....

question to be of great public importance: Does § 766.316, Fla. Stat. (1993), require that health care providers

patient’s rights and limitations under the Plan, Section 766.316, Florida Statutes, provides: “Each hospital

...Ojeda’s cross-appeal. We, therefore, withdraw our prior opinion and substitute the following in its place. We affirm as to all issues raised by the parties in this appeal, except as to the notice issue raised by Dr. Ojeda in his cross-appeal under section 766.316, Florida Statutes (2011). Dr. Ojeda bases his motion for rehearing on Weeks v. Florida Birth-Related Neurological, 977 So.2d 616 (Fla. 5th DCA 2008), wherein this court specifically held that under section 766.316, “the formation of the provider-obstetrical patient relationship is what triggers the obligation to furnish the notice.” Id....

...See § 766.309(l)(d), Fla. Stat. (2011) (“The administrative law judge shall make the following determinations based upon all available evidence: ... Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in § 766.316 are satisfied....

...18 (Fla.2007) (noting that the 2006 amendment to section 766.309, Florida Statutes, “ ‘clarifies that since July 1,1998, the administrative law judge has had the exclusive jurisdiction to make factual determinations as to whether the notice requirements in s. 766.316, Florida Statutes, are satisfied.’ ” (quoting Ch....

REVISED OPINION VAN NORTWICK, Judge. This appeal raises questions concerning whether the notice required to be given under section 766.316, Florida Statutes (1989), is a condition precedent to health care providers asserting exclusivity under The Florida Neurological Injury Compensation Association (NICA) and whether the health care provider must have a reasonable opportunity to provide such notice....

...e infant claimants allegedly as the result of medical negligence during labor and delivery at UMC. The trial court, in granting summary judgment in favor of the claimant families, ruled (i) that the pre-delivery notice to the obstetric patient under section 766.316 is a condition precedent to a health care provider asserting NICA as the patient’s exclusive remedy, (ii) that the claimant families were not limited to the remedies available under NICA, but could pursue their common law remedies, because the pre-delivery notice was not provided and (iii) that the health care providers here had a reasonable opportunity to give the required notice. On appeal the health care providers argue that notice under section 766.316 is not a condition precedent to their invoking NICA as the exclusive remedy of the claimant families and that, because of the circumstances present here, the trial court erred in determining that as a matter of law the health care providers had a reasonable opportunity to comply with section 766.316....

...was delivered by caesarean section approximately 4 3/4 hours after the patient’s admission and the other infant was vaginally delivered approximately 31 hours after the patient’s admission. The parties have stipulated that the notice required by section 766.316 was not given to either of these patients....

...at the claimants were limited to the remedies available under NICA The claimant families filed answers alleging, as affirmative defenses, that the Board, as employer of the appellant-physicians, and UMC failed to provide the NICA notice specified by section 766.316 and that such notice is a condition precedent to the exclusive remedy provision of NICA....

...obviate NICA’s exclusive remedy provision. In a lengthy order, the trial court granted the motions for summary judgment of the claimant families as to all appellants and denied the motions of the health care providers. In addition to finding that section 766.316 required pre-delivery notice as a condition precedent to the health care provider’s assertion of NICA exclusivity, the trial court addressed the question of whether the health care providers had a reasonable opportunity to give the required notice....

...o the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient’s rights and limitations under the plan. § 766.316, Fla.Stat....

...atients. In addition, except for residents, assistant residents and interns who are exempted from the notice requirement, a participating physician is required to give notice to the obstetrical patients to whom the physician provides services. Under section 766.316, therefore, notice on behalf of the hospital will not by itself satisfy the notice requirement imposed on the participating physician(s) involved in the delivery. The question of whether the notice under section 766.316 is a condition precedent to the applicability of NICA was resolved by this court during the pendency of this appeal. Braniff v. Galen of Florida, Inc., 669 So.2d 1051 (Fla. 1st DCA 1995), rev. granted, 670 So.2d 938 (Fla.1996). In Braniff , this court held that the notice of NICA participation required by section 766.316 must be given to obstetrical patients prior to delivery and the giving of such notice was a condition precedent to the health care provider invoking NICA as the patient’s exclusive remedy. Id. at 1052 . As this court explained: [Ljanguage in section 766.316 indicates that ......

...North Broward Hospital District, 664 So.2d 65 (Fla. 4th DCA 1995), rev. granted sub. nom., Domond v. Mills, No. 87,270, 678 So.2d 338 (Fla. July 11, 1996). As in Branijf, we certify the following question as one of great public importance: WHETHER SECTION 766.316, FLORIDA STATUTES (1993), REQUIRES THAT HEALTH CARE PROVIDERS GIVE THEIR OBSTETRICAL PATIENTS PRE-DELIVERY NOTICE OF THEIR PARTICIPATION IN THE FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION PLAN AS A CONDITION PRECEDENT TO THE PROVIDERS’ INVOKING NICA AS THE PATIENTS’ EXCLUSIVE REMEDY? Reasonable Opportunity to Provide Notice The appellants also argue that, even if a pre-delivery notice under section 766.316 is a condition precedent to their NICA immunity, the trial court erred in finding that the appellants had a reasonable opportunity to provide the NICA notice. Appellants do not argue that a medical emergency prevented the giving of the notice in the instant case. Recognizing that the notice under section 766.316 “is intended to permit an informed choice between ‘alternatives’ before delivery,” Braniff, 669 So.2d at 1053 , appellants reason that the patients here had no real choice in delivery alternatives because, as the undisputed fa...

...patients and their medical conditions. Since no “informed choice” was possible for these patients at the time they presented to UMC under the instant circumstances, appellants argue they had no opportunity to provide an efficacious notice under section 766.316....

...ce given on the grounds that their pre-delivery notice came too late to provide realistic choice of alternative providers. We believe the use of a bright-line rule here will be most in keeping with the legislative intent of the notice requirement in section 766.316. We hold that health care providers who have a reasonable opportunity to give notice and fail to give predelivery notice under section 766.316, will lose their NICA exclusivity regardless of whether the circumstances precluded the patient making an effective choice of provider at the time the *51 notice was provided....

...We, therefore, affirm the ruling of the trial court as to UMC. Although the trial court also granted summary judgment as to the appellant-physicians and the Board, as their employer, the order on appeal does not address whether the attending physicians, who are required to provide section 766.316 notice, had a reasonable opportunity to provide that notice....

...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....

...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....

...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...

...$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....

...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....

...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, ....

...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....

...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....

complied with the notice requirement set out in section 766.316, Florida Statutes—if the claimant contests

...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....

...Feld to immunity from medical malpractice lawsuits for such injuries. NICA was required by statute to furnish physicians with forms providing notice to obstetrical patients that the physician’s participation would limit the remedy for such injuries. § 766.316....

...unity he bargained for in a case in which a baby was born with a neurological injury. After settling the claim, he, his P.A., and his insurer brought this action against NICA on theories of negligence and breach of contract and prevailed. We affirm. Section 766.316, Florida Statutes (Supp....

...Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient’s rights and limitations under the plan. In the present case the evidence showed, without dispute, that Dr. Feld joined NICA in November 1988, and that NICA sent forms required by section 766.316 for the first time to physicians in general in February 1989....

...had never received notice that Dr. Feld and his P.A. participated in NICA, Dr. Feld and his P.A. were exposed to a medical malpractice lawsuit. Galen of Fla. Inc. v. Braniff, 696 So.2d 308 (Fla.1997)(holding that the pre-delivery notice required by section 766.316 was a condition precedent to a medical provider’s statutory immunity)....

...who are neuro-logieally injured during birth and their parents. Dr. Feld responds that section 766.314(3) states that “funds collected by the association and any income therefrom should be disbursed only for the payment of awards under ss. 766.301-766.316 and for the payment of reasonable expenses of administering the plan.” He argues that this is a reasonable expense of administration based on NICA’s failure to comply with its obligations to a participant....

...DOAH ”), in which we ultimately held that *532 “when notice is raised as part of a claim filed under NICA, an ALJ has jurisdiction to make findings regarding whether a health care provider has satisfied the ‘notice to obstetrical patients’ requirement of section 766.316, Florida Statutes (Supp....

...mpensable injury under the NICA Plan. The administrative law judge determined the injury was a com-pensable injury as defined by the NICA Plan, but that two of the defendants (one doctor and the hospital) failed to give the proper notice required by section 766.316, Florida Statutes....

...1st DCA 2002), this court addressed the issue of when a notice requirement is a condition precedent to limiting medical malpractice liability under the Neurological Injury Compensation Act (NICA). There, this court held that the specific notice requirements of section 766.316, Florida Statutes (1997), were not satisfied, and therefore, the doctor was not entitled to immunity. There this court stated, [S]ection 766.316 requires “[e]ach hospital with a participating physician on its staff and each participating physician” to provide notice, (emphasis added)....

...e notice of participation in the NICA plan, we conclude that Dr. Boyd’s failure to give such notice was not harmless. Therefore, Dr. Boyd was not entitled to immunity under the NICA plan. Accordingly, we reverse. Id. at 192 (Emphasis in original). Section 766.316 as interpreted in Schur establishes that proper notice be given as a condition precedent to invoking immunity....

...choice between using a participating [physician] or using one who is not a [plan] participant ... thereby reserving [the patient’s] civil remedies.” Schur, 832 So.2d at 192 . The purpose of section 240.215 was similar. Thus section 240.215, like section 766.316, requires proper notice as a condition precedent to invoke immunity- Under section 240.215, the notice must be separate, written, and conspicuous....