Florida Statute 766.302 - Full Text and Legal Analysis

The 2025 Florida Statutes

Title XLV
TORTS

Chapter 766
MEDICAL MALPRACTICE AND RELATED MATTERS

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766.302 Definitions; ss. 766.301-766.316.—As used in ss. 766.301-766.316, the term:

(1) “Association” means the Florida Birth-Related Neurological Injury Compensation Association established in s. 766.315 to administer the Florida Birth-Related Neurological Injury Compensation Plan and the plan of operation established in s. 766.314.

(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 least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

(3) “Claimant” means any person who files a claim pursuant to s. 766.305 for compensation for a birth-related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof.

(4) “Administrative law judge” means an administrative law judge appointed by the division.

(5) “Division” means the Division of Administrative Hearings of the Department of Management Services.

(6) “Hospital” means any hospital licensed in Florida.

(7) “Participating physician” means a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred. Such term shall not apply to any physician who practices medicine as an officer, employee, or agent of the Federal Government.

(8) “Plan” means the Florida Birth-Related Neurological Injury Compensation Plan established under s. 766.303.

(9) “Family member” means a father, mother, or legal guardian.

(10) “Family residential or custodial care” means care normally rendered by trained professional attendants which is beyond the scope of child care duties, but which is provided by family members. Family members who provide nonprofessional residential or custodial care may not be compensated under this act for care that falls within the scope of child care duties and other services normally and gratuitously provided by family members. Family residential or custodial care shall be performed only at the direction and control of a physician when such care is medically necessary. Reasonable charges for expenses for family residential or custodial care provided by a family member shall be determined as follows:

(a) If the family member is not employed, the per-hour value equals the federal minimum hourly wage.

(b) If the family member is employed and elects to leave that employment to provide such care, the per-hour value of that care shall equal the rates established by Medicaid for private duty services provided by a home health aide. A family member or a combination of family members providing care in accordance with this definition may not be compensated for more than a total of 10 hours per day. Family care is in lieu of professional residential or custodial care, and no professional residential or custodial care may be awarded for the period of time during the day that family care is being provided.

History.—s. 61, ch. 88-1; s. 36, ch. 88-277; s. 16, ch. 91-46; s. 2, ch. 93-251; s. 307, ch. 96-410; s. 149, ch. 2001-277; s. 5, ch. 2002-401; s. 59, ch. 2024-140; s. 25, ch. 2024-182.

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Amendments to 766.302

Annotations, Discussions, Cases:

Cases Citing Statute 766.302

Total Results: 53

Maradiaga v. United States

679 F.3d 1286, 82 Fed. R. Serv. 3d 503, 2012 WL 1581334, 2012 U.S. App. LEXIS 9334

Court of Appeals for the Eleventh Circuit | Filed: May 8, 2012 | Docket: 1858843

Cited 59 times | Published

substantially mentally and physically impaired." Id. § 766.302(2). A "participating physician" is "a physician

Nica v. Div. of Administrative Hearings

686 So. 2d 1349, 1997 WL 18238

Supreme Court of Florida | Filed: Jan 16, 1997 | Docket: 1260348

Cited 40 times | Published

Eric had not suffered an injury covered by section 766.302(2) because he was not "substantially mentally

Galen of Florida, Inc. v. Braniff

696 So. 2d 308, 1997 WL 213718

Supreme Court of Florida | Filed: May 1, 1997 | Docket: 1696195

Cited 25 times | Published

without fault. In the definitions portion, section 766.302(7), Florida Statutes (1993) provides: "Participating

Florida Birth-Related Neurological Injury Compensation Ass'n v. Department of Administrative Hearings

29 So. 3d 992, 35 Fla. L. Weekly Supp. 40, 2010 Fla. LEXIS 43, 2010 WL 114510

Supreme Court of Florida | Filed: Jan 14, 2010 | Docket: 1642779

Cited 19 times | Published

plan for the year in which the injury occurred. § 766.302(7), Fla. Stat. (1997). "`Hospital' means any hospital

Bennett v. St. Vincent's Medical Center, Inc.

71 So. 3d 828, 2011 WL 2637444

Supreme Court of Florida | Filed: Jul 7, 2011 | Docket: 2354289

Cited 16 times | Published

substantially mentally and physically impaired." § 766.302(2), Fla. Stat. (2001). The question presented

FLA., BIRTH-RELATED NICA v. McKaughan

668 So. 2d 974

Supreme Court of Florida | Filed: Feb 29, 1996 | Docket: 2526353

Cited 16 times | Published

`birth-related neurological injury' as defined in section 766.302(2), Florida Statutes." In a final order, the

BIRTH-RELATED INJ. COMP. v. Div. of Admin.

948 So. 2d 705

Supreme Court of Florida | Filed: Jan 11, 2007 | Docket: 1769935

Cited 15 times | Published

NICA, the Legislature established the NICA Plan, § 766.302(8), Fla. Stat. (1997), "for the purpose of providing

BIRTH-RELATED INJ. COMP. v. Div. of Admin.

948 So. 2d 705

Supreme Court of Florida | Filed: Jan 11, 2007 | Docket: 1769935

Cited 15 times | Published

NICA, the Legislature established the NICA Plan, § 766.302(8), Fla. Stat. (1997), "for the purpose of providing

Humana of Florida, Inc. v. McKaughan

652 So. 2d 852

District Court of Appeal of Florida | Filed: Mar 3, 1995 | Docket: 476328

Cited 14 times | Published

substantially mentally and physically impaired. § 766.302(2). If the hearing officer finds that the statutory

All Children's Hosp., Inc. v. Dept. of Admin. Hearings

863 So. 2d 450, 2004 WL 57230

District Court of Appeal of Florida | Filed: Jan 14, 2004 | Docket: 2545452

Cited 12 times | Published

set forth in section 766.302(2); "[p]articipating physician" is defined in section 766.302(7). A scheme

Nagy v. FLA. BIRTH-RELATED NEUROLOG. INJURY COMPENSATION ASSOCIATION

813 So. 2d 155, 2002 WL 385000

District Court of Appeal of Florida | Filed: Mar 13, 2002 | Docket: 1403580

Cited 11 times | Published

compensation should be awarded under the Plan. Section 766.302(2), Florida Statutes (1997), provides: "Birth-related

Behan v. FLA. BIRTH-RELATED NICA

664 So. 2d 1173, 1995 WL 757909

District Court of Appeal of Florida | Filed: Dec 27, 1995 | Docket: 1230203

Cited 10 times | Published

neurological injury," within the meaning of Section 766.302(2), Florida Statutes, and that therefore the

University of Miami v. Klein

603 So. 2d 651, 1992 WL 191597

District Court of Appeal of Florida | Filed: Aug 11, 1992 | Docket: 1475853

Cited 10 times | Published

defining a "birth-related neurological injury" in section 766.302(2), the subsection continues in the next sentence

BD. OF REGENTS OF STATE OF FLA. v. Athey

694 So. 2d 46

District Court of Appeal of Florida | Filed: Jan 31, 1997 | Docket: 1450269

Cited 8 times | Published

assessment required for participation" in NICA. § 766.302(7), Fla. Stat. (1989). Thus, if a hospital has

BAYFRONT MED. CENTER, INC. v. Div. of Admin. Hearings

841 So. 2d 626, 2003 WL 1785928

District Court of Appeal of Florida | Filed: Apr 4, 2003 | Docket: 1656677

Cited 7 times | Published

Birth-Related Neurological Injury Compensation Plan. See § 766.302(2). The plan "provides a no fault and exclusive

Dianderas v. FL. BIRTH RELATED NEUROLOGICAL

973 So. 2d 523, 2007 WL 4458151

District Court of Appeal of Florida | Filed: Dec 21, 2007 | Docket: 1292811

Cited 6 times | Published

neurological injury" within the meaning of section 766.302(2); that the language of NICA's brochure satisfied

University of Miami v. Ruiz

916 So. 2d 865, 2005 WL 2862055

District Court of Appeal of Florida | Filed: Nov 2, 2005 | Docket: 1659599

Cited 6 times | Published

birth-related neurological injuries pursuant to section 766.302(2). A proceeding under the Act forecloses a

PEDIATRIX MEDICAL GROUP OF FLA. v. Falconer

31 So. 3d 310

District Court of Appeal of Florida | Filed: Apr 7, 2010 | Docket: 1150723

Cited 5 times | Published

not "participating physicians" under the plan. § 766.302(7) (defining a "participating physician" as one

Orhs v. Florida Birth-Related Neurological

997 So. 2d 426, 2008 WL 4753729

District Court of Appeal of Florida | Filed: Oct 31, 2008 | Docket: 2533944

Cited 5 times | Published

"birth-related neurological injury," as defined under section 766.302(2), Florida Statutes (2004), since the brain

Bayfront v. Birth-Related Neurological

982 So. 2d 704, 2008 WL 140806

District Court of Appeal of Florida | Filed: Jan 16, 2008 | Docket: 1664792

Cited 5 times | Published

definition of a "[b]irth-related neurological injury," § 766.302, and if the delivering physician is a participant

Samples v. Florida Birth-Related Neurological

40 So. 3d 18, 2010 Fla. App. LEXIS 8763, 2010 WL 2425998

District Court of Appeal of Florida | Filed: Jun 18, 2010 | Docket: 1667052

Cited 4 times | Published

birth-related neurological injuries, as defined in section 766.302(2), Florida Statutes (2007). Her parents, Angela

ORLANDO REGIONAL HEALTHCARE v. Alexander

909 So. 2d 582, 2005 WL 2104317

District Court of Appeal of Florida | Filed: Sep 2, 2005 | Docket: 1663217

Cited 4 times | Published

caused by genetic or congenital abnormality. § 766.302(2), Fla. Stat. (2003). Section 766.304 outlines

Tarpon Springs Hospital Foundation, Inc. v. Anderson

34 So. 3d 742, 2010 Fla. App. LEXIS 5257, 2010 WL 1563544

District Court of Appeal of Florida | Filed: Apr 21, 2010 | Docket: 1641416

Cited 3 times | Published

for birth-related neurological injuries." Section 766.302(7) defines the term, "participating physician"

Pediatrix Medical Group of Florida, Inc. v. Falconer

31 So. 3d 310, 2010 Fla. App. LEXIS 4502, 2010 WL 1329656

District Court of Appeal of Florida | Filed: Apr 7, 2010 | Docket: 60289574

Cited 3 times | Published

not “participating physicians” under the plan. § 766.302(7) (defining a “participating physician” as one

BIRTH-RELATED N. INJURY COMP. v. Carreras

633 So. 2d 1103, 1994 WL 45168

District Court of Appeal of Florida | Filed: Feb 15, 1994 | Docket: 1296241

Cited 3 times | Published

substantially mentally and physically impaired. See § 766.302(2), Fla. Stat. (1991). If the infant's injury

Bradford Ex Rel. Bradford v. Fla. Birth-Related Neuro.

667 So. 2d 401, 1995 WL 757878

District Court of Appeal of Florida | Filed: Dec 27, 1995 | Docket: 2560790

Cited 2 times | Published

the immediate postdelivery," as required by section 766.302(2). He thus denied recovery under NICA. Plaintiffs

Fla Birth Related Neuro. v. Div. Admin.

664 So. 2d 1016, 1995 WL 612957

District Court of Appeal of Florida | Filed: Dec 15, 1995 | Docket: 1229761

Cited 2 times | Published

"birth-related neurological injury" as provided in section 766.302(2), Florida Statutes. Eric Ryan Birnie (Eric)

CENTRAL FLORIDA REGIONAL HOSP., INC. v. Wager

656 So. 2d 491, 1995 WL 96392

District Court of Appeal of Florida | Filed: Jul 14, 1995 | Docket: 1283621

Cited 2 times | Published

when the injury is of the type defined in section 766.302(2), Florida Statutes (1993). University of

St. Vincent's Medical Center, Inc. v. Bennett

27 So. 3d 65, 2009 Fla. App. LEXIS 12744, 2009 WL 2602286

District Court of Appeal of Florida | Filed: Aug 21, 2009 | Docket: 1664696

Cited 1 times | Published

by the Plan, and the claim is not compensable. § 766.302(2), Fla. Stat. See also Nagy v. Florida Birth-Related

Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings

948 So. 2d 705, 2007 Fla. LEXIS 2

Supreme Court of Florida | Filed: Jan 11, 2007 | Docket: 64849096

Cited 1 times | Published

NICA, the Legislature established the NICA Plan, § 766.302(8), Fla. Stat. (1997), “for the purpose of providing

Matteini v. Florida Birth-Related Neurological

946 So. 2d 1092, 2006 Fla. App. LEXIS 20576, 2006 WL 3523624

District Court of Appeal of Florida | Filed: Dec 8, 2006 | Docket: 64848609

Cited 1 times | Published

‘birth-related neurological injury’ as defined in Section 766.302(2), Florida Statutes, which specifically requires

Depart v. MacRi

902 So. 2d 271, 2005 WL 1199057

District Court of Appeal of Florida | Filed: May 23, 2005 | Docket: 1675079

Cited 1 times | Published

neurological injury," as that term is defined in section 766.302(2); (2) "[w]hether obstetrical services were

Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan

668 So. 2d 974, 21 Fla. L. Weekly Supp. 91, 1996 Fla. LEXIS 277

Supreme Court of Florida | Filed: Feb 29, 1996 | Docket: 64762717

Cited 1 times | Published

‘birth-related neurological injury’ as defined in section 766.302(2), Florida Statutes.” In a final order, the

Shands Jacksonville Medical Center, Inc., and University of Florida Board of Trustees

District Court of Appeal of Florida | Filed: Aug 7, 2025 | Docket: 69455307

Published

(“BRNI”), as that type of injury is defined by section 766.302(2), Florida Statutes (2017). 1 The Chavezes

Florida Birth-Related Neurological Injury Compensation Association v. Elina Dudkina and Vadim Kushnir, on Behalf of and as Parents and Natural Guardians Of

District Court of Appeal of Florida | Filed: Feb 12, 2025 | Docket: 69632237

Published

substantially mentally and physically impaired.” § 766.302(2), Fla. Stat. (emphasis supplied). Our focus

Shands Jacksonville Medical Center, Inc., and University of Florida Board of Trustees

District Court of Appeal of Florida | Filed: Dec 11, 2024 | Docket: 69455307

Published

(“BRNI”), as that type of injury is defined by section 766.302(2), Florida Statutes (2017). 1 The Chavezes

Shands Jacksonville Medical Center, Inc., and University of Florida Board of Trustees

District Court of Appeal of Florida | Filed: Dec 11, 2024 | Docket: 69455307

Published

(“BRNI”), as that type of injury is defined by section 766.302(2), Florida Statutes (2017). 1 The Chavezes

Erica McDonald, as Parent and Natural Guardian of J.M., a Minor v. Florida Birth-Related Neurological Injury Compensation Association, and Florida Health Sciences Center, Inc. D/B/A Tampa General Hospital; And University of South Florida Board of Trustees

District Court of Appeal of Florida | Filed: Nov 20, 2024 | Docket: 69393186

Published

neurological injury” (“BRNI”), as defined in section 766.302(2), Florida Statutes. She sought reimbursement

NEKEISHA WILSON, ON BEHALF OF AND AS PARENT AND NATURAL GUARDIAN OF SYRIAH PINKNEY, A MINOR v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION

District Court of Appeal of Florida | Filed: Feb 23, 2024 | Docket: 68277196

Published

birth-related neurological injury” as defined by section 766.302(2), Florida Statutes. Each side presented

Lampert v. Florida Birth-Related Neurological Injury Compensation Ass'n

206 So. 3d 845, 2016 Fla. App. LEXIS 19341

District Court of Appeal of Florida | Filed: Dec 30, 2016 | Docket: 63631174

Published

birth-related neurological injury as defined by § 766.302(2), Florida Statutes, who was admitted into the

Putnam Community Medical Center v. Florida Birth-Related NeuroLogical Injury Compensation Ass'n

204 So. 3d 598, 2016 Fla. App. LEXIS 17937

District Court of Appeal of Florida | Filed: Dec 5, 2016 | Docket: 4548149

Published

Medical Center (“the hospital”) challenges section 766.302(2) of NICA on state and federal equal protection

Children's Medical Center, P.A. v. Kim ex rel. Kim

190 So. 3d 114, 2015 Fla. App. LEXIS 8026, 2015 WL 3396708

District Court of Appeal of Florida | Filed: May 27, 2015 | Docket: 60254755

Published

“immediate post-delivery period in a hospital.” § 766.302(2), Fla.' Stat. - (2007). The respondents have

Children's Medical Center, P.A., Theodore Morrison, M.D., Kenneth Budowsky, M.D., Jacinta Magnus, M.D., and Nancy Chiang, M.D. v. Jakyung Kim and Woochan Kim, etc.

District Court of Appeal of Florida | Filed: May 27, 2015 | Docket: 2679316

Published

“immediate post-delivery period in a hospital.” § 766.302(2), Fla. Stat. (2007). The respondents have neither

Samples v. Florida Birth-Related Neurological Injury Compensation Ass'n

114 So. 3d 912, 38 Fla. L. Weekly Supp. 317, 2013 WL 2096260, 2013 Fla. LEXIS 1001

Supreme Court of Florida | Filed: May 16, 2013 | Docket: 60232016

Published

birth-related neurological injuries, as defined in section 766.302(2), Florida Statutes (2007). Her parents, Angela

University of Miami v. Exposito ex rel. Gonzales

87 So. 3d 803, 2012 WL 1448963, 2012 Fla. App. LEXIS 6544

District Court of Appeal of Florida | Filed: Apr 27, 2012 | Docket: 60308049

Published

substantially mentally and physically impaired. § 766.302(2), Fla. Stat. (2010) (emphasis added). “Claimant”

Orlando Regional Healthcare System, Inc. v. Gwyn

53 So. 3d 385, 2011 Fla. App. LEXIS 1081, 2011 WL 335401

District Court of Appeal of Florida | Filed: Feb 4, 2011 | Docket: 98828

Published

physician" as defined in the Act. Specifically, section 766.302(7), Florida Statutes (2010), defines "participating

Florida Birth-Related Neurological Injury Compensation Ass'n v. Michael

98 So. 3d 64, 2010 Fla. App. LEXIS 2521, 2010 WL 711859

District Court of Appeal of Florida | Filed: Mar 3, 2010 | Docket: 60312495

Published

neurological injuries within the meaning of section 766.302(2), Florida Statutes (1995). In 1996, the Michaels

Gugelmin v. Florida Birth Related Neurological Injury Compensation Ass'n

882 So. 2d 517, 2004 Fla. App. LEXIS 13846, 2004 WL 2101891

District Court of Appeal of Florida | Filed: Sep 22, 2004 | Docket: 64832581

Published

birth-relatéd neurological injury, as defined by section 766.302(2), Florida Statutes. The issue in this appeal

Adventist Hlth. v. Fl. Birth-Related Injury

865 So. 2d 561, 2004 WL 19485

District Court of Appeal of Florida | Filed: Jan 2, 2004 | Docket: 1231502

Published

substantially mentally and physically impaired." § 766.302(2), Fla. Stat. (1995).[1] (Emphasis added.) The

Gilbert v. Florida Birth-Related Neurological Injury Compensation Ass'n

724 So. 2d 688, 1999 Fla. App. LEXIS 472, 1999 WL 22730

District Court of Appeal of Florida | Filed: Jan 22, 1999 | Docket: 64785591

Published

“birth-related neurological injury” as defined in section 766.302(2), Florida Statutes (Supp.1988), so as to

Barden v. Haddox

695 So. 2d 1271, 1997 Fla. App. LEXIS 6935, 1997 WL 336591

District Court of Appeal of Florida | Filed: Jun 20, 1997 | Docket: 64774545

Published

birth-related neurological injury as defined in section 766.302(2), Florida Statutes (1993), a provision of

Board of Regents v. Athey ex rel. Athey

694 So. 2d 46

District Court of Appeal of Florida | Filed: Jan 31, 1997 | Docket: 64773852

Published

assessment required for participation” in NICA. § 766.302(7), Fla. Stat. (1989). Thus, if a hospital has

White v. Florida Birth Related Neurological

655 So. 2d 1292, 1995 Fla. App. LEXIS 6270, 1995 WL 340160

District Court of Appeal of Florida | Filed: Jun 9, 1995 | Docket: 64756700

Published

. fails to meet the criteria set forth at Section 766.302(3), Florida Statutes (1993) based on the fact

This Florida statute resource is curated by Graham W. Syfert, Esq., a Jacksonville, Florida personal injury and workers' compensation attorney. Attorney Syfert regularly works with Chapter 766 in the context of medical malpractice litigation and represents clients throughout Northeast Florida. For legal consultation, call 904-383-7448.